Estate of Brungart v. Smallwood

SHEPHERD, J. The appellant, Estate of Nelson Brun-gart, appeals to this Court two orders of the Circuit Court for Monroe County which together grant attorneys’ fees to Sheri Smallwood, the defendant below, under section 57.105 of the Florida Statutes. We affirm. Appellant urges that the award must be reversed because the motion seeking fees was untimely filed by Smallwood more than 30 days from the date of the dismissal of the action. See Fla. R. Civ. P. 1.525. Smallwood counters while that may be the case, she is nevertheless saved from that potential error on her part because she expressly sought an award of fees under section 57.105 in her motion to dismiss. The order of dismissal did not reserve jurisdiction to award fees. See Saia Motor Freight Line, Inc. v. Reid, 888 So.2d 102 (Fla. 3d DCA 2004). However, we find that we need not reach this issue because it was not raised below and preserved for appeal. See Moss v. Moss, 901 So.2d 177, 2005 WL 562757 (Fla. 2d DCA March 11, 2005) (holding that a failure to object to the tardiness of a motion for attorneys’ fees waives the 30-day requirement of R. 1.525). In all other respects, we likewise affirm the judgment below. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979) (affirming lower court judgment where “the record brought forward by the appellant [was] inadequate to demonstrate reversible error”). Affirmed.