Lead Opinion
The prevailing plaintiff in an action to compel arbitration challenges two orders of the trial court which denied his motion to tax costs and attorneys fees against appel-lee, his insurer.
Following an automobilе accident involving personal injuries, appellant settled with the tortfeasor without the written consent of appellee, then sought arbitration of his underinsured motorist claim. Appellee declined to arbitrate and appellant filed the instant suit. The trial court found in favor of appellant, and entered a final judgment which compelled arbitration, awarded costs and attorneys fees pursuant to Section 627.-428, Florida Statutes (1981), and rеserved jurisdiction to set the amount of such fees. Appellee made no motion for rehearing or to alter or amend the judgment. At the subsequent hearing to determine the amount of appellant’s attorneys fees, appellant’s counsel presented evidence relevant to the proper amount of such feеs. At the close of appellant’s evidence, and with no prior notice to appellant, apрellee’s counsel made a substantive argument, disputing appellant’s entitlement to fees under Section 627.428. After hearing appellee’s argument the court orally denied appellant’s motion for attorneys feеs. Appellant moved for rehearing of this oral ruling. The court thereafter took various confusing actions which alternatively awarded and denied attorneys fees to appellant.
On August 4, 1981, the judge entered an order dеnying attorneys fees and modifying the final judgment to that effect. In this order the court construed Section 627.428 and concluded that appellant was not entitled to recover attorneys fees. Subsequently, the trial judge reversed himsеlf. He entered an order granting appellant’s motion for rehearing, and ruled that appellant was entitlеd to attorneys fees under Section 627.428. One week later, September 2,
Appellee challenges this cоurt’s jurisdiction and contends that appellant’s motion for rehearing, directed at the trial judge’s oral ruling, did not oрerate to toll the time to appeal from the court’s written order implementing that ruling, rendered on August 4. Accordingly, appellee also contends that the time to file appellant’s notice of appeal expired on September 3, 1981.
We need not determine the effect of appellant’s motion for rehearing because before the time to appeal the August 4 order expired, the trial judge entered аn order which awarded appellant attorneys fees. Accordingly, as of August 26, appellant had prevailed on all points. He had nothing to appeal. Not until September 2, when the trial judge reversed himself for the third timе, did appellant’s need to file a notice of appeal resurrect itself. Appellant’s noticе of appeal refers to this order. We have jurisdiction.
Rule 1.540(b) permits the trial court to relieve a party from final judgment on several grounds, including mistake or inadvertence, within one year of entry of final judgment. The rule envisiоns an inadvertent and honest mistake made in the ordinary course of litigation, Viking General Corp. v. Diversified Mortgage Investors,
Appellee vigorously argues that the trial judge had the authority to alter this judgment under Rule 1.540(b) because the judge inadvertently signed the final judgment, prepared by аppellant’s counsel, without realizing that it included a fee award. We find no support for this argument in the record. Although the September 2 order cites Rule 1.540(b), it also explicitly refers to the argument presented at the fee hearing as grounds for entry of the order. We find no indication that appellee presented an argument on mistake to the court in this hearing, or at any other time. Instead, appellee argued the substantive merits of the award during the hearing. The transcript of this hearing demonstrates that the trial judge based his ruling on, and only on, appеllee’s substantive argument. Such a change in the trial judge’s view of the law did not provide grounds for relief under Rule 1.540(b). Acсordingly, the trial judge had no cognizable grounds to alter this judgment. We decline to discuss other points presented, аs our holding disposes of them. Since appellee did not dispute the amount of fees established at the hеaring, and in fact agreed the amount was reasonable, we reverse and remand with directions to reinstatе the award of attorney fees in favor of appellant in the amount of $6,581.50.
REVERSED and REMANDED WITH DIRECTIONS.
Concurrence Opinion
ON MOTION FOR REHEARING
We grant appellant’s Motion for Rehearing and Clarification to the extent that we grant appellant’s motion for appellate at