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516 So. 2d 1042

Docket No. 87-2973.

Bernstein v. Berrin

Howard BERNSTEIN, Appellant, v. Robert G. BERRIN, Appellee.

District Court of Appeal of Florida

Decided December 11, 1987.

District Court of Appeal of Florida · decided 1987-12-11

Key passage — most relied on by later courts

“does not divest the trial court of jurisdiction to enter attorney's fees orders in the same case.”

quoted by 1 later decision, including 898 So. 2d 1120 - Haskins v. City of Ft. Lauderdale

Relies on 384 So. 2d 171 - Allen v. Estate of Dutton · 392 So. 2d 49 - Bailey v. Bailey · 369 So. 2d 75 - Wilson Realty, Inc. v. David

Good law ✅— No negative treatment on recordhow we know

Decided 1987-12-11

How this case has been cited

Cited by 12 later decisions — most recently December 2009

12 state decisions

70198719902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Sheldon Wind, Tampa, for appellant.

¶2Gerald M. Taylor, Tampa, for appellee.

¶3

ON MOTION TO RELINQUISH JURISDICTION TO DETERMINE ATTORNEY'S FEES

¶4PER CURIAM.

¶5In Wilson Realty, Inc. v. David,369 So.2d 75 (Fla. 2d DCA 1979) this court held that after a notice of appeal from a final judgment a trial judge loses jurisdiction to award attorney's fees pursuant to a reservation of jurisdiction in the final judgment. See, also, United Services Automobile Association v. Smolensky,391 So.2d 355 (Fla. 2d DCA 1980) and Judge v. Judge,370 So.2d 833 (Fla. 2d DCA 1979). We take this opportunity to recede from that aspect of Wilson, Smolensky, and Judge. Experience and cases subsequent to Wilson have now convinced us that the better conclusion is that the filing of the notice of appeal does not divest the trial court of jurisdiction to enter attorney's fee orders in the same case.

¶6It is now clear that not only is a judgment final without disposition of attorney's fees, but the postjudgment attorney's fee order is also a final order in itself for appeal purposes. See Hubert v. Division of Administration,425 So.2d 671 (Fla. 2d DCA 1983). If the final judgment in the case and the subsequent attorney's fee order *1043 are both appealable separately as final orders, an appeal of the former should not take away jurisdiction to rule on the latter.

¶7We agree with the reasoning of Bailey v. Bailey,392 So.2d 49 (Fla. 3d DCA 1981) that the test to determine loss of jurisdiction is not whether the trial court is proceeding in matters related to the final judgment. Rather, the proper test is whether the trial court is proceeding in a matter which affects the subject matter on appeal. Thus, Bailey held that the trial judge had jurisdiction to award attorney's fees. See, also, Fernandez v. Alonso,375 So.2d 8 (Fla. 3d DCA 1979).

¶8In Allen v. Estate of Dutton,384 So.2d 171 (Fla. 5th DCA 1980), the court held that when attorney's fees are properly costs in a case, this constitutes an exception to Wilson and they may be awarded after a notice of appeal from the final judgment. We make no such distinction here but recede from Wilson and hold that the trial court does not lose jurisdiction to award any type of allowable attorney's fees upon filing of the notice of appeal from the final judgment.

¶9In view of our holding herein, relinquishment of jurisdiction for attorney's fees is unnecessary and the motion is denied as moot.

¶10DANAHY, C.J., and SCHEB, RYDER, CAMPBELL, SCHOONOVER, LEHAN, FRANK, HALL and THREADGILL, JJ., concur En Banc.

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