Finkelstein v. North Broward Hosp. Dist., 484 So. 2d 1241 (Fla. 1986). · Go Syfert
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Finkelstein v. North Broward Hosp. Dist., 484 So. 2d 1241 (Fla. 1986). Cases Citing This Book View Copy Cite
“a post-judgment motion for attorney's fees raises a collateral and independent claim' which the trial court has continuing jurisdiction to entertain within a reasonable time, notwithstanding that the litigation of the main claim may have been concluded with finality.”
95 citation events (34 in the last 25 years) across 5 distinct courts.
Strongest positive: Southern-Owners Insurance Company v. Maronda Homes, Inc. of Florida (flmd, 2020-03-25)
Treatment trajectory · 1986 → 2026 · click a year to view as-of
1986 2006 2026
Top citers, strongest first. 34 distinct citers.
examined Cited as authority (verbatim quote) Southern-Owners Insurance Company v. Maronda Homes, Inc. of Florida
M.D. Fla. · 2020 · quote attribution · 1 verbatim quote · confidence high
post-judgment motion for prevailing party attorney's fees raises a 'collateral and independent' claim. such is the case because the prevailing party simply cannot be determined until the main claims have been tried and resolved.
examined Cited as authority (quoted) Bass v. State Farm Life Ins. Co.
Fla. Dist. Ct. App. · 1995 · quote attribution · 1 verbatim quote · confidence low
a post-judgment motion for attorney's fees raises a collateral and independent claim' which the trial court has continuing jurisdiction to entertain within a reasonable time, notwithstanding that the litigation of the main claim may have been concluded with finality.
discussed Cited as authority (rule) Daniel Murphy v. Polk County Board of County Commissioners, and Commercial Risk Management
Fla. Dist. Ct. App. · 2025 · confidence medium
Dist., 484 So. 2d 1241, 1243 (Fla. 1986). “[P]ayment of attorney’s fees is not part of the substantive claim because it is only intended to make the successful party whole by reimbursing him for the expense of litigation.” Cheek, 511 So. 2d at 979 .
cited Cited as authority (rule) 11851 Skylake Pl H Temple Terrace, LLC v. Turlington
Fla. Dist. Ct. App. · 2025 · confidence medium
Dist., 484 So. 2d 1241, 1243 (Fla. 1986).
discussed Cited as authority (rule) Rachel Stevick Quires v. Copperstone Equestrian Center, LLC and Donna M. Dubois
Fla. Dist. Ct. App. · 2025 · confidence medium
Dist., 484 So. 2d 1241, 1243 (Fla. 1986) (“[A] post- judgment motion for prevailing party attorney’s fees raises a ‘collateral and independent’ claim.
discussed Cited as authority (rule) Sfr Services, LLC, A/A/O John & Rose Zapisek v. Florida Department of Financial Services, O/B/O Avatar Property and Casualty
Fla. Dist. Ct. App. · 2025 · confidence medium
Dist., 484 So. 2d 1241, 1243 (Fla. 1986) (holding that “a post-judgment motion for attorney’s fees raises a ‘collateral and independent claim’ which the trial court has continuing jurisdiction to entertain . . . .”).
cited Cited as authority (rule) Creative Hardscapes, LLC v. Robert Prawdzik
Fla. Dist. Ct. App. · 2024 · confidence medium
Dist., 484 So. 2d 1241, 1243 (Fla. 1986). 8 2015).
discussed Cited as authority (rule) Progressive Select Insurance Company v. Leslie Bunsee
Fla. Dist. Ct. App. · 2024 · confidence medium
Dist., 484 So. 2d 1241, 1243 (Fla. 1986) (internal quotation and citation omitted); cf. Stockman, 573 So. 2d at 837 (explaining that “it is not improper to adjudicate entitlement to attorney’s fees after resolution of the other claims” because a fee motion “requires consideration of factors distinct from the issues decided on the merits of the cause of action”); Cheek v. McGowan Elec.
cited Cited as authority (rule) TODD KOZEL v. ASHLEY D. KOZEL
Fla. Dist. Ct. App. · 2019 · confidence medium
Dist., 484 So. 2d 1241, 1243 (Fla. 1986)); McBride v. McBride, 549 So. 2d 787, 788 (Fla. 2d DCA 1989) (discussing a family court's "continuing jurisdiction" to award attorneys' fees).
cited Cited as authority (rule) Goldman v. Campbell
Fla. Dist. Ct. App. · 2006 · confidence medium
Nearly a decade later, Roberts was the basis for Finkelstein v. North Broward Hospital District, 484 So.2d 1241, 1243 (Fla.1986).
cited Cited as authority (rule) Miller v. Miller
Fla. Dist. Ct. App. · 2005 · confidence medium
Dist., 484 So.2d 1241, 1243 (Fla.1986).
cited Cited as authority (rule) Haskins v. City of Ft. Lauderdale
Fla. Dist. Ct. App. · 2005 · confidence medium
Dist., 484 So.2d 1241, 1243 (Fla.1986).
cited Cited as authority (rule) Graef v. Dames & Moore Group, Inc.
Fla. Dist. Ct. App. · 2003 · confidence medium
Dist., 484 So.2d 1241, 1243 (Fla.1986).
discussed Cited as authority (rule) Paulucci v. General Dynamics Corp.
Fla. · 2003 · confidence medium
Dist., 484 So.2d 1241, 1243 (Fla.1986) (finding that the trial court has continuing jurisdiction to entertain a post-judgment motion for attorney's fees). [4] Rule 1.420 states in pertinent part: (a) Voluntary Dismissal. (1) By Parties.
discussed Cited as authority (rule) Jackson County Hosp. Corp. v. Aldrich
Fla. Dist. Ct. App. · 2002 · confidence medium
For instance, in Finkelstein v. North Broward Hospital District, 484 So.2d 1241, 1243 (Fla.1986), the supreme court construed the now-repealed section 768.56, Florida Statutes, which authorized attorney's fees to prevailing parties in medical malpractice actions involving "any medical or osteopathic physician, podiatrist, hospital or health maintenance organization." An unsuccessful nurse averred on appeal that the trial court lacked authority to assess attorney's fees against her because she was not one of the health care professionals enumerated in section 768.56.
cited Cited as authority (rule) Barber v. City of Riviera Beach
Fla. Dist. Ct. App. · 2000 · confidence medium
Dist., 484 So.2d 1241, 1243 (Fla.1986); McGurn v. Scott, 596 So.2d 1042, 1044 (Fla.1992).
cited Cited as authority (rule) Smallwood v. Perez
Fla. Dist. Ct. App. · 1998 · confidence medium
Dist., 484 So.2d 1241, 1243 (Fla.1986).
discussed Cited as authority (rule) NATIONAL ENVIRONMENTAL PRODUCTS v. Falls
Fla. Dist. Ct. App. · 1996 · confidence medium
In Finkelstein v. North Broward Hospital District, 484 So.2d 1241 (Fla.1986), our supreme court adopted the reasoning of the United States Supreme Court in White v. New Hampshire Department of Employment, 455 U.S. 445 , 102 S.Ct. 1162 , 71 L.Ed.2d 325 (1982), and held that "a post-judgment motion for attorney's fees raises a `collateral and independent claim' which the trial court has continuing jurisdiction to entertain within a reasonable time, notwithstanding that the litigation of the main claim may have been concluded with finality." Finkelstein, 484 So.2d at 1243 (emphasis supplied).
discussed Cited as authority (rule) US Fidelity & Guar. v. Martin County
Fla. Dist. Ct. App. · 1996 · confidence medium
Adopting White in Finkelstein v. North Broward Hospital District, 484 So.2d 1241 (Fla.1986), the Florida Supreme Court held in a case where no reservation of jurisdiction was made to award attorney's fees, that "a post-judgment motion for attorney's fees raises a `collateral and independent claim' which the trial court has continuing jurisdiction to entertain within a reasonable time, notwithstanding that the litigation of the main claim may have been concluded with finality. " Id. at 1243 (emphasis supplied).
discussed Cited as authority (rule) Gilbert v. K-Mart Corp.
Fla. Dist. Ct. App. · 1995 · confidence medium
We decline to construe this time limitation in the statute as jurisdictional. "[A] post-judgment motion for attorney's fees raises a `collateral and independent claim' which the trial court has continuing jurisdiction to entertain within a reasonable time, notwithstanding that the litigation of the main claim may have been concluded with finality." Finkelstein v. North Broward Hospital District, 484 So.2d 1241, 1243 (Fla. 1986).
discussed Cited as authority (rule) Wyatt v. State (2×) also: Cited "see"
Fla. Dist. Ct. App. · 1995 · confidence medium
In Finkelstein , the supreme court concluded "that a post-judgment motion for attorney's fees raises a `collateral and independent claim' which the trial court has continuing jurisdiction to entertain within a reasonable time, notwithstanding that the litigation of the main claim may have been concluded with finality." 484 So.2d at 1243 (citation omitted). [2] No appeal was taken from the final judgment in Finkelstein .
discussed Cited as authority (rule) McAskill Publications, Inc. v. Keno Brothers Jewelers, Inc.
Fla. Dist. Ct. App. · 1994 · confidence medium
Dist., 484 So.2d 1241, 1243 (Fla. 1986), adopting the reasoning and holding in White v. New Hampshire Dep't of Employment Security, 455 U.S. 445 , 102 S.Ct. 1162 , 71 L.Ed.2d 325 (1982). [2] Section 57.105(2), Florida Statutes (1991), provides: (2) If a contract contains a provision allowing attorney's fees to a party when he is required to take any action to enforce the contract, the court may also allow reasonable attorney's fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.
cited Cited as authority (rule) PYSZKA, KESSLER v. Mullin
Fla. Dist. Ct. App. · 1992 · confidence medium
Dist., 484 So.2d 1241, 1243 (Fla. 1986).
cited Cited as authority (rule) Hollander v. Biscayne Cove
Fla. Dist. Ct. App. · 1989 · confidence medium
Dist., 484 So.2d 1241, 1243 (Fla.1986), notwithstanding the trial court’s failure to reserve jurisdiction to award fees, Finkelstein, and the requesting party’s failure to plead entitlement to them.
discussed Cited as authority (rule) Heath v. PiRoman
Fla. Dist. Ct. App. · 1989 · confidence medium
Indeed, a trial court is required to award statutory attorney's fees pursuant to proper motion upon due process notice and hearing, although said fees have not been specifically pled in the complaint or answer.[ [2] ] [citations omitted] In Johnson v. Johnson, 346 So.2d 591 (Fla. 1st DCA 1977), this court disallowed statutory dissolution of marriage fees because they were not pleaded. [3] However, the Supreme Court's subsequent opinion in Finkelstein v. North Broward Hospital District, 484 So.2d 1241, 1243 (Fla. 1986), [4] distinguished between prevailing party medical malpractice fees under S…
discussed Cited as authority (rule) Meyer v. Meyer
Fla. Dist. Ct. App. · 1988 · confidence medium
NOTES [1] We note that the supreme court, in Finkelstein v. North Broward Hospital District, 484 So.2d 1241, 1243 (Fla. 1986), recognized that a difference exists between mandatory attorney's fees provided for by section 768.56(1), Florida Statutes (1981) and discretionary attorney's fees in dissolution of marriage proceedings: Defendants cite Oyer v. Boyer, 383 So.2d 717 (Fla. 4th DCA 1980); McCallum v. McCallum, 364 So.2d 97 (Fla. 4th DCA 1978); and Frumkes v. Frumkes, 328 So.2d 34 (Fla. 3d DCA 1976), to support their contention that the trial court lacked jurisdiction to award attorney's fe…
cited Cited as authority (rule) Halberg v. Halberg
Fla. Dist. Ct. App. · 1988 · confidence medium
Dist., 484 So.2d 1241, 1243 (Fla.1986); Tomorrow’s Choice, Inc. v. Bassing Co., 364 So.2d 530 (Fla. 3d DCA 1978).
discussed Cited as authority (rule) Protean Investors, Inc. v. Travel Etc., Inc.
Fla. Dist. Ct. App. · 1987 · confidence medium
Dist., 484 So.2d 1241, 1243 (Fla. 1986), deciding that a final judgment which lacks the "magic words `jurisdiction is reserved'" does not deprive a party of the "substantive right to attorney's fees"; and of this court in Marrero v. Cavero, 400 So.2d 802 (Fla. 3d DCA), review denied, 411 So.2d 383 (1981), ruling that the failure to request contractual attorney's fees does not defeat entitlement when the issue is presented by a timely post-judgment motion, require that we affirm.
cited Cited as authority (rule) Higley v. Florida Patient's Compensation Fund
Fla. Dist. Ct. App. · 1987 · signal: cf. · confidence medium
Cf Finkelstein v. North Broward Hospital District, 484 So.2d 1241, 1243 (Fla.1986) (interpreting section 768.56).
cited Cited "see" Martinez v. Giacobbe
Fla. Dist. Ct. App. · 2007 · signal: see · confidence high
See id. at 1242 ; Jaye v. Royal Saxon, Inc., 900 So.2d 634, 635 (Fla. 4th DCA 2005); McAskill Publ'ns, Inc. v. Keno Bros.
cited Cited "see" Sottile v. Sottile
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
See Finkelstein v. North Broward Hospital District, 484 So.2d 1241 (Fla. 1986); Jackson v. Jackson, 390 So.2d 787 (Fla. 1st DCA 1980).
cited Cited "see" DeRosa v. Shands Teaching Hospital & Clinics, Inc.
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
See Finkelstein v. North Broward Hospital District, 484 So.2d 1241 (Fla.1986); Tappan v. Florida Medical Center, Inc., 488 So.2d 630 (Fla. 4th DCA 1986).
cited Cited "see" Cheek v. McGowan Elec. Supply Co.
Fla. · 1987 · signal: see · confidence high
See Finkelstein, 484 So.2d at 1243 ; Empire State Insurance Co., 302 F.2d at 830 .
cited Cited "see" National Marketplace Associates, Ltd. v. C.S.T. Essential Technology, Inc.
Fla. Cir. Ct. · 1987 · signal: see · confidence high
See Finkelstein v. North Broward Hospital District, 484 So.2d 1241 (Fla. 1986) and Folta v. Bolton, 493 So.2d 440 (Fla. 1986).
Nancy FINKELSTEIN, et Vir., Petitioners,
v.
NORTH BROWARD HOSPITAL DISTRICT, etc., et al., Respondents.
66160.
Supreme Court of Florida.
Mar 20, 1986.
484 So. 2d 1241
Adkins.
Cited by 65 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 86%
Citer courts: District Court of Appeal of Fl… (1)

[*1242] Joel D. Eaton and Joel S. Perwin of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow and Olin, P.A., and Spence, Payne, Masington, Grossman and Needle, P.A., Miami, for petitioners.

Ellen Mills Gibbs of Gibbs and Zei, P.A., and William D. Ricker, Jr. of Fleming, O'Bryan and Fleming, Ft. Lauderdale, for respondents.

ADKINS, Justice.

We have for review North Broward Hospital District v. Finkelstein, 456 So.2d 498 (Fla. 4th DCA 1984), which directly and expressly conflicts with Young v. Altenhaus, 448 So.2d 1039 (Fla. 3d DCA 1983), quashed on other grounds 472 So.2d 1152 (Fla. 1985). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

The Finkelsteins sued defendants for medical malpractice. The jury returned a verdict for the Finkelsteins. A final judgment was rendered against the defendants. However, the final judgment did not dispose of the plaintiffs' claim for attorney's fees or expressly reserve jurisdiction to award the attorney's fees to which the plaintiffs were entitled by virtue of section 768.56, Florida Statutes (1981). The final judgment simply stated that "(c)osts will be taxed at a later date upon appropriate motion."

The defendants did not appeal the final judgment. Three days after the appeal time had expired, the plaintiffs filed a motion seeking recovery of attorney's fees contained in their complaint and not disposed of in the final judgment. The trial court granted the motion. The Fourth District Court of Appeal reversed the award of attorney's fees finding that the trial court's order was void for lack of jurisdiction because the motion for attorney's fees was filed three days after the final judgment had become final.

The issue before us is whether the trial court lacked jurisdiction to entertain the plaintiffs' motion for "prevailing party" attorney's fees, where the plaintiffs' complaint contained a demand for attorney's fees, where the final judgment did not dispose of or explicitly retain jurisdiction over the claim for attorney's fees, and where the plaintiffs' motion for attorney's fees was filed three days after the final judgment on the main claim became final.

We hold that the trial court properly exercised its jurisdiction when it awarded attorney's fees to the plaintiffs. We therefore quash the decision of the district court[*1243] and approve of Young v. Altenhaus, 448 So.2d 1039 (Fla. 3d DCA 1983), quashed on other grounds, 472 So.2d 1152 (Fla. 1985), which held that a trial court has jurisdiction to entertain a motion for attorney's fees despite the fact that the final judgment on the main claim did not specifically reserve jurisdiction to do so.

Section 768.56(1), Florida Statutes (1981), provides that attorney's fees shall be awarded to the prevailing party in a medical malpractice action. The provisions of section 768.56(1) are mandatory. Defendants concede that plaintiffs would be entitled to attorney's fees if the final judgment on the main claim expressly provided for retention of jurisdiction to award them. We refuse to deprive plaintiffs of their substantive right to attorney's fees merely because the final judgment did not contain the magic words "jurisdiction is reserved."

Defendants cite Oyer v. Boyer, 383 So.2d 717 (Fla. 4th DCA 1980); McCallum v. McCallum, 364 So.2d 97 (Fla. 4th DCA 1978); and Frumkes v. Frumkes, 328 So.2d 34 (Fla. 3d DCA 1976), to support their contention that the trial court lacked jurisdiction to award attorney's fees because the plaintiffs' motion for attorney's fees was filed three days after the time for appeal had expired. However, a significant difference exists between this case, which deals with "prevailing party" attorney's fees, and Oyer, McCallum and Frumkes which deal with attorney's fees in the context of a dissolution of marriage proceeding.

As noted by the United States Supreme Court in White v. New Hampshire Department of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982), a post-judgment motion for prevailing party attorney's fees raises a "collateral and independent" claim. Such is the case because the prevailing party simply cannot be determined until the main claims have been tried and resolved. In sharp contrast, attorney's fees in dissolution proceedings are intended to equalize the relative positions of the parties and are part of the "property" to be distributed in the final decree. Further, unlike the fees awarded in the instant case, fees in a dissolution proceeding are not awarded to the prevailing party, and their award therefore does not depend upon the outcome of the main claims.

Therefore, we adopt the United States Supreme Court's reasoning and holding in White and conclude that a post-judgment motion for attorney's fees raises a "collateral and independent claim" which the trial court has continuing jurisdiction to entertain within a reasonable time, notwithstanding that the litigation of the main claim may have been concluded with finality.

Nurse Poore, one of the defendants in the malpractice action, contends that the trial court lacked jurisdiction to award attorney's fees against her because she is not one of the enumerated health care professionals affected by section 768.56. We agree.

Section 768.56 provides in pertinent part that:

Except as otherwise provided by law, the court shall award a reasonable attorney's fee to the prevailing party in any civil action which involves a claim for damages ... on account of alleged malpractice by any medical or osteopathic physician, podiatrist, hospital or health maintenance organization.

Nurse Poore is not a medical or osteopathic physician, a podiatrist, a hospital or a health maintenance organization. Therefore, the trial court erred in assessing attorney's fees against Nurse Poore because she is not a member of any of the classes of persons enumerated in section 768.56.

The principle that the mention of one thing in a statute implies the exclusion of another, Thayer v. State, 335 So.2d 815 (Fla. 1976), coupled with the requirement that statutes awarding attorney's fees must be strictly construed, Roberts v. Carter, 350 So.2d 78 (Fla. 1977), mandates reversal of the trial court's order assessing attorney's fees against Nurse Poore.

Accordingly, the decision of the district court is quashed and the cause is remanded[*1244] with instructions to reinstate the order of the trial court except that portion of the order awarding attorney's fees against Nurse Poore.

It is so ordered.

BOYD, C.J., and OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur.