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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
DANNY ATKINS and
NOT FINAL UNTIL TIME EXPIRES TO
JAN WALKER,
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED.
Appellants,
v.
CASE NO.: 1D03-0306
GRACE ERIS and KAYE C.
HOWERTON
Appellees.
________________/
Opinion filed May 28, 2004.
An appeal from the Circuit Court for Escambia County.
Terry D. Terrell, Judge.
Charles F. Beall, Jr., of Moore, Hill & Westmoreland, P.A., Pensacola, for
Appellants.
R. John Westberry of Holt & Westberry, P.L., Pensacola, for Appellees.
VAN NORTWICK, J.
Danny Atkins and Jan Walker seek reversal of a supplemental final judgment in
favor of appellees, Grace Eris and Kaye C. Howerton, assessing attorney's fees
against Walker and assessing costs against Atkins and Walker. For the reasons that

follow, we reverse.
On December 10, 2001, the trial court entered a final judgment following a
bench trial in August 2001 in an action brought by Eris against Walker and Atkins
seeking to rescind a warranty deed and to set aside a mortgage, among other relief.
On September 7, 2001,1 Eris filed one of the motions which was a subject of the
order on appeal. Eris does not contest the claim of Atkins and Walker that this motion
was not filed within 30 days of the rendition of the final judgment. Instead, Eris argues
that the September 7 motion was a motion seeking costs and that this motion was
served within ten days of the trial court's oral pronouncement of its decision at the
conclusion of the bench trial. On its face, however, the September 7 motion does not
seek taxable costs. Rather, the motion seeks only to have an award of attorney's fees
assessed.2 Because the motion of September 7 did not expressly seek costs, it cannot
serve as a basis for an award of costs. Gulf Landings Ass'n v. Hershberger, 845 So.
2d 344, 346 (Fla. 2d DCA 2003). Accordingly, we reverse the award of costs based
1Eris states that this motion was filed on September 2, 2001. There is no
motion of record dated September 2, 2001, however. There is a motion in the
record on appeal which is dated September 7, 2001, and which bears a filing stamp
of September 7, 2001.
2In the motion dated September 2, 2001, and filed September 7, 2001, Eris
sought an assessment of attorney's fees against "both the Defendants." However,
by an amended motion dated September 13, 2001, Eris sought attorney's fees only
against defendant Walker.
2

upon the September 7 motion. We do not address the timeliness issue with respect
to the September 7 motion.
Eris' motion of January 23, 2002, which does expressly seek an award of costs,
was not served within 30 days of the filing of the final judgment on December 10,
2001. A motion which is not served "within 30 days after filing of the judgment" does
not satisfy the explicit requirements of rule 1.525, Florida Rules of Civil Procedure.
Rule 1.525 is mandatory. Ulico Cas. Co. v. Roger Kennedy Constr., Inc., 821 So.
2d 452, 453 (Fla. 1st DCA 2002). Thus, we reverse the award of costs based upon the
January 23 motion.
As for the award of attorney's fees, Walker does not argue that the motions for
an award of attorney's fees were untimely, but asserts that the motions state no
permissible basis for an award of attorney's fees. We agree. In her motions, Eris
sought attorney's fees pursuant to the terms of a shareholders' agreement to which
Eris and Walker were parties. The agreement provides in pertinent part that: "[i]n the
event a suit or proceeding is brought by a party to this Agreement to enforce or defend
its provisions, or seek remedy for any breach thereof, the prevailing party or parties
shall be entitled to receive its reasonable attorney's fees. . . ." The relief granted to
Eris by the final judgment, however, was not based upon a finding that Walker
breached a provision of the shareholders' agreement and did not enforce or defend
3

any provision of the shareholders' agreement. Thus, the shareholders' agreement, by
its terms, does not provide a basis for an award of attorney's fees in this action. No
other basis for an award has been alleged by Eris. Accordingly, we are constrained
to reverse the award of attorney's fees.
The supplemental final judgment is reversed in its entirety.
KAHN AND WEBSTER, JJ., CONCUR.
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