Summary
rejecting a motion for fees under § 768.79 that was filed within thirty days after a judgment was affirmed on appeal because the motion should have been filed within thirty days following judgment
Summary of this case from Egwuatu v. Burlington Coat Factory Warehouse Corp.Opinion
No. 95-04027.
June 26, 1996.
Appeal from the Circuit Court, Hillsborough County, Carl C. Durrance, Senior Judge.
Mark S. Fisher and Peter A. Robertson of Peter A. Robertson Associates, Gainesville, for Appellant.
Joseph F. Bohren, Tampa, for Appellee.
The defendant/appellee, Westburne Supply, Inc., made an offer of judgment pursuant to section 768.79, Florida Statutes (1993), but the plaintiff/appellant, Bradley Construction Company rejected it. The appellee then moved for and was granted a directed verdict in its favor. The final judgment was entered January 4, 1994. The appellant then unsuccessfully sought reversal of that adverse judgment in this court. On April 24, 1995, after the judgment was affirmed on appeal and within thirty days of our mandate issuing, the appellee moved the trial court for fees pursuant to section 768.79 which the trial court granted. We agree with the appellant that waiting until after the appeal was resolved before moving for fees pursuant to this statute was untimely. The appellee should have filed its motion for fees within thirty days of the rendition of the final judgment in the trial court. See Bernstein v. Berrin, 516 So.2d 1042 (Fla. 2d DCA 1987), and Bevan v. Bean, 661 So.2d 1251, 1252 n. 2 (Fla. 2d DCA 1995). The trial court thus erred in awarding the appellee its section 768.79 fees under the circumstances of this case.
Reversed.
DANAHY, A.C.J., and CAMPBELL and PATTERSON, JJ., concur.