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Fee Simple: A Procedural Primer on Appellate Attorneys’ Fees and Costs

Appellate Practice

Before a motion for appellate attorneys’ fees will even be considered by a Florida appellate court, let alone granted, it must comply with the procedural requirements of Fla. R. App. P. 9.400, and it must provide a specific legal basis for the award. This article provides a procedural primer for appellate attorneys’ fees in Florida’s state courts and an overview of some of the common substantive grounds for awarding such fees. The related, but distinct, issue of appellate court costs will also be addressed.

Procedures for Motions for Appellate Attorneys’ Fees
A motion for appellate attorneys’ fees under Rule 9.400(b) is filed in the appellate court, not the lower tribunal. A request for fees cannot be presented as part of an appellate brief, but must be made by separate motion.1 The motion must state the legal and factual basis for the award. A citation to the rule is recommended, but it is not enough. The rule provides the procedural mechanism for fees, but is not itself a substantive basis for fees.2 Thus, the motion must specify the particular contractual, statutory, or other substantive legal grounds for the fees.3 Supporting documentation, when applicable, should be attached as an exhibit to the motion; for example, if fees are sought based on a contract, the contract should be attached.

A motion for appellate attorneys’ fees must be served no later than the time for serving the reply brief. Presumably, an extension of time to serve the reply brief also extends the time for the motion.4 Untimely motions may not be considered.5 The nonmoving party should serve a response within 10 days of service of the motion,6 raising any objections to ensure they are preserved. Special time limits and requirements apply when the motion is brought under Rule 9.410(b), seeking sanctions. These detailed special requirements will be addressed below, and Rule 9.410(b) should also be consulted for further guidance.

Only the appellate court, and not the lower tribunal, has the authority to award appellate attorneys’ fees.7 The appellate court generally determines only a party’s entitlement to attorneys’ fees and then remands for a determination of amount, which is an evidentiary matter better suited to the lower tribunal. The issue of entitlement may also be remanded to the lower tribunal, for example, when the matter cannot be determined from the appellate record. In such cases, the appellate court may provisionally grant the motion, contingent upon the lower tribunal determining the party is ultimately entitled to fees and, if so, the amount. This procedure is most commonly seen in family law cases and in cases in which the fees are sought based on a proposal for settlement.8 Similarly, when the appeal does not mark the end of the litigation, the court may grant the fee motion, contingent upon the party ultimately prevailing at the end of the case.9

When the cause is remanded by the appellate court for a determination of entitlement and/or amount, the party in whose favor fees are awarded should promptly file a motion to tax appellate fees with supporting affidavits in the lower tribunal, following the issuance of the appellate court’s mandate. The appellate court’s mandate and order granting the fee motion should be attached as exhibits to the post-remand motion. Although no express time limit appears in the appellate rules, it is advisable to file the post-remand motion within 30 days of the mandate, in line with the rule governing trial level fees, even though appellate fee motions are not technically subject to that rule.10 Orders entered by the lower tribunal on remand regarding appellate fee and costs issues are reviewed, not by a new appeal, but by filing a motion in the appellate court within 30 days of the order to be reviewed, pursuant to Rule 9.400(c).11

Procedures for Motions for Appellate Court Costs
Unlike a motion for appellate attorneys’ fees, a motion for appellate court costs is filed in the lower tribunal. In fact, a motion for appellate attorneys’ fees should not include a request for appellate court costs.12 Rule 9.400(a) provides that appellate court costs “shall be taxed by the lower tribunal on motion served within 30 days after issuance of the mandate.” This time limit is jurisdictional, and the lower tribunal lacks authority to entertain an untimely motion to tax appellate court costs.13

When the motion is timely, the lower tribunal must assess taxable appellate court costs in favor of the prevailing party on appeal, unless the appellate court orders otherwise.14 Taxable appellate costs include filing fees, bond premiums, and charges for preparation of the appellate record. The “prevailing party” entitled to appellate costs is the party who prevails on the significant issues in the appeal, without regard to who prevails in the underlying action.15 In rare instances in which neither party can be said to have prevailed on significant issues in the appeal, costs should not be awarded to either party.16 An appellate court generally will not address the issue of appellate court costs unless or until a party seeks review of an order assessing such costs by a motion filed under Rule 9.400(c).17

Common Grounds for Appellate Attorneys’ Fees
As with attorneys’ fees at the trial level, attorneys’ fees cannot be awarded at the appellate level unless authorized by contract, statute, or other substantive legal basis. Whether grounded in contract or statute, the vast majority of fee awards are based on the prevailing party, and the moving party must generally prevail both in the appeal and ultimately in the action to recover appellate attorneys’ fees. When the “prevailing party” is unclear, the usual test is which party prevailed on “significant issues” in the case, although the applicability of this test depends on the controlling statutes and case law,18 And a partial success may warrant a partial award in a given case.19 A statute or contract authorizing an award of attorneys’ fees is generally interpreted to include an award of appellate attorneys’ fees to the prevailing party on appeal, absent an expressed contrary intent.20 The following provides an overview of a few of the common grounds for appellate attorneys’ fees.

Contract — It almost goes without saying that when a provision of a contract authorizes an award of attorneys’ fees, it will be enforced according to its terms. Moreover, F.S. §57.105(7) specifically provides that “[i]f a contract contains a provision allowing attorneys’ fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorneys’ fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.” This section applies to all contracts entered into on or after October 1, 1988.21 It ensures a mutuality of attorneys’ fees by making “a unilateral contract clause for prevailing party attorneys’ fees bilateral in effect.”22 As mentioned above, a contractual attorneys’ fees provision is generally interpreted to extend to appellate attorneys’ fees.23

Proposals for Settlement — A valid proposal for settlement served in accordance with F.S. §768.79 and Fla. R. Civ. P. 1.442, during the proceedings in the lower tribunal, can also serve as a basis for appellate attorneys’ fees.24 In fact, this is probably the most common and most widely used basis for seeking attorneys’ fees at both the trial and appellate levels. At the trial level, a valid proposal for settlement that complies with the rule and statute generally entitles a defendant to fees when the plaintiff obtains a judgment that is at least 25 percent less than the defense offer, and it generally entitles a plaintiff to fees when the plaintiff obtains a judgment that is at least 25 percent more than his or her offer.25 A motion seeking trial-level fees under a proposal for settlement is filed in the trial court and must be served no later than 30 days after the judgment is entered,26 And a motion for appellate fees must be filed in the appellate court and served before the time for serving the reply brief, as discussed above. If available, proof of serving the proposal for settlement, such as a notice of service filed in the trial court, should be attached to the trial and appellate level motions as an exhibit, but the proposal itself generally should not be attached.27 The efficacy of a proposal for settlement as a basis for attorneys’ fees may be impacted when a competing fee statute or contractual provision is at issue in the same case, and interpreting case law should be consulted for further guidance in such cases.28

Family Law — F.S. §61.16 authorizes an award of attorneys’ fees at the trial and appellate levels in family law cases. The rules of appellate procedure provide two avenues for seeking appellate fees in such cases. The first is by filing a motion in the appellate court under Rule 9.400(b), in accordance with the procedures discussed above. The second alternative is to file a motion in the trial court before the end of the appeal pursuant to Rule 9.600(c)(1), which vests the lower tribunal with continuing jurisdiction to enter and enforce orders awarding “temporary attorney’s fees and costs reasonably necessary to prosecute or defend an appeal[.]” A party can seek review of such an order by filing a motion in the appellate court within 30 days of rendition of the order, pursuant to Rule 9.600(c)(3).

Another distinguishing characteristic in a family law case is that an award of attorneys’ fees under F.S. §61.16 is not based on the prevailing party, but on each party’s respective need and ability to pay at the time the award is made. The purpose of the statute “is to ensure that both parties will have a similar ability to obtain competent legal counsel.”29 Thus, in a family law case, “the most important factor in awarding attorneys’ fees is the financial resources of each party.”30

Sanctions for Unsupported Claims or Defenses — Under F.S. §57.105(1) a prevailing party can seek attorneys’ fees as a sanction for a losing party’s actions in maintaining a claim or defense he or she knew or should have known was not supported by material facts or the application of then-existing law to the material facts. This provision provides a legal basis for attorneys’ fees at the trial level, as well as on appeal. Rule 9.410(b) sets forth the procedures for seeking such fees for an appeal.

F.S. §57.105(1) essentially requires a showing that the claim or defense was “frivolous” when it was presented. The courts have acknowledged this term is incapable of precise definition.31 Generally, however, a frivolous position is one that an attorney of ordinary competence should recognize is so lacking in merit there is no reasonable possibility the court will accept it.32 In determining whether a claim or defense presented in the lower tribunal or on appeal is frivolous, courts should additionally consider whether it is 1) without merit in the law and cannot be supported by a good faith argument for the extension, modification, or reversal of existing law; 2) is contradicted by overwhelming evidence; 3) is undertaken primarily for delay or other improper purpose; or 4) asserts material factual statements that are false.33 In order to invoke the “good faith argument” justification, the party against whom sanctions are sought must have asserted that the claim or defense was presented to change or challenge existing law.34

Caution should be exercised in deciding whether to file a fee motion based on F.S. §57.105(1). In practice, “frivolousness” is a high standard to meet and such motions are not commonly granted. In addition, the motion may well invite the other side to respond with its own motion for sanctions.35 However, if the claim or defense is truly unsupported by the law and facts, the motion would be appropriate.

If the decision is made to seek appellate attorneys’ fees as a sanction for filing a frivolous appeal, or raising a frivolous defense thereto, Rule 9.410(b) sets forth the procedure for doing so. Although Rule 9.410(b) is very detailed and must be independently consulted by the practitioner, the following provides an overview of the basic requirements. A motion seeking fees under Rule 9.410(b) must initially be served only on the party against whom sanctions are sought, and must not be served on other parties or filed with the appellate court unless the challenged claim or defense is not withdrawn or corrected within 21 days after the initial service of the motion.36 This safe-harbor provision is similar to that found in F.S. §57.105(1) and does not apply when the sanctions are based on the court’s own motion under Rule 9.410(a).

A party’s sanctions motion must contain a certificate of service in compliance with Rule 9.420, and a certificate of filing as set forth in Rule 9.410(b)(4).37 The certificate of filing remains unsigned unless or until the motion is filed with the court.38 The initial “safe-harbor” service of the motion on only the party to be sanctioned must be “no later than the time for serving any permitted response to a challenged paper or, if no response is permitted as of right, within 15 days after a challenged paper is served or a challenged claim, defense, contention, allegation, or denial is made at oral argument.”39 If, within 21 days after this initial service, the party sought to be sanctioned fails to withdraw or correct the challenged claim or defense, the moving party can proceed to file the sanctions motion with the appellate court. Once the 21-day safe harbor period expires, the sanctions motion must be filed, if at all, no later than the time for serving the reply brief or, if the reply brief time is inapplicable, the sanctions motion must be filed within 30 days after the initial service.40 The moving party must serve all parties with a copy of the sanctions motion, when and if the motion is filed with the court.41 The party against whom sanctions are sought has 10 days from this final service to file a response to the sanctions motion.42

Florida follows the general rule that litigants should bear their own attorneys’ fees, unless there is a specific statutory or contractual provision authorizing an award of fees, and the same rule applies to appellate attorneys’ fees.43 However, as increasingly more statutes and standard contracts provide for attorneys’ fees, it seems fee awards are becoming the rule, rather than the exception. Thus, it is important for appellate and trial attorneys alike to evaluate whether there is a basis for seeking attorneys’ fees in each case. The conditions and requirements for obtaining fees will be governed by the particular statute or contract authorizing the award. Consequently, one of the most important steps in determining whether fees are authorized and how to obtain them in a given case will be to carefully examine the controlling statutes and case law. As explained above, when there is a substantive legal basis for attorneys’ fees, the Florida Rules of Appellate Procedure provide the method for recovering them on appeal.44

1 See McCreary v. Fla. Residential Prop. & Cas. Joint Underwriting Ass’n, 758 So. 2d 692, 696 (Fla. 4th DCA 1999); Fla. Dep’t of Commerce v. Davies, 379 So. 2d 1313, 1313 (Fla. 1st DCA 1980).

2 See State, Dep’t of Highway Safety & Motor Vehicles v. Trauth, 971 So. 2d 906, 908 (Fla. 3d DCA 2007).

3 See United Servs. Auto. Ass’n v. Phillips, 775 So. 2d 921, 922 (Fla. 2000); Hembd v. Dauria, 859 So. 2d 1238, 1240 (Fla. 4th DCA 2003); see also Fla. R. App. P. 9.300 & 9.400(b).

4 See Barrett v. Barrett, 951 So. 2d 24 (Fla. 5th DCA 2007).

5 See id.; Lobel v. Southgate Condo. Ass’n, Inc., 436 So. 2d 170, 171 (Fla. 4th DCA 1983). The deadline is not jurisdictional, but should be  taken seriously. See also Ankeny v. Palm Beach County Sch. Bd., 643 So. 2d 1127, 1129-30 (Fla. 1st DCA 1994) (Wolf, J., concurring in reversal, but dissenting from award of appellate fees on untimely motion).

6 See Fla. R. App. P. 9.300(a).

7 See Respiratory Care Servs., Inc. v. Murray D. Shear, P.A., 715 So. 2d 1054, 1056 (Fla. 5th DCA 1998).

8 See, e.g., Joyner v. Int’l Real Estate Group, Inc., 937 So. 2d 259, 259-60 (Fla. 5th DCA 2006); Rados v. Rados, 791 So. 2d 1130 (Fla. 2d DCA 2001).

9 See, e.g., Johnson v. Maroone Ford LLC, 944 So. 2d 1059, 1061 (Fla. 4th DCA 2006).

10 See Fla. R. Civ. P. 1.525; Superior Prot., Inc. v. Martinez, 930 So. 2d 859, 860 (Fla. 2d DCA 2006); Computer Task Group, Inc. v. Palm Beach County, 809 So. 2d 10, 12 (Fla. 4th DCA 2002).

11 In contrast, review of an award of trial-level fees is by appeal. An order assessing trial-level fees is final and appealable once both entitlement to fees and the amount of fees have been determined. See, e.g., McIlveen v. McIlveen, 644 So. 2d 612 (Fla. 2d DCA 1994).

12 See Superior Prot., Inc., 930 So. 2d at 860.

13 See Mulato v. Mulato, 734 So. 2d 477, 478 (Fla. 4th DCA 1999).

14 See Fla. R. App. P. 9.400(a); Am. Med. Int’l, Inc. v. Scheller, 484 So. 2d 593, 594 (Fla. 4th DCA 1985).

15 See Markin v. Markin, 953 So. 2d 13, 15 (Fla. 4th DCA 2007); Centennial Mortgage, Inc. v. SG/SC, Ltd., 864 So. 2d 1258, 1260 (Fla. 1st DCA 2004); see also Varveris v. Carbonell, 785 So. 2d 576, 577 (Fla. 3d DCA 2001).

16 See Ariko v. Nicholson, 632 So. 2d 174, 174 (Fla. 5th DCA 1994); Phares v. Cowles, 459 So. 2d 1110, 1113 (Fla. 4th DCA 1984).

17 See Okeelanta Corp. v. Bygrave, 727 So. 2d 950, 951 (Fla. 4th DCA 1997).

18 Compare Moritz v. Hoyt Enters., Inc., 604 So. 2d 807, 810 (Fla. 1992) (setting forth significant issues test), with Trytek v. Gale Indus., Inc., 3 So. 3d 1194, 1203 (Fla. 2009) (applying significant issues test to fees sought in construction lien cases under Fla. Stat. §713.29), and Danis Indus. Corp. v. Ground Improvement Techniques, Inc., 645 So. 2d 420, 421-22 (Fla. 1994) (significant issues test inapplicable to attorneys’ fees sought by insured under Fla. Stat. §627.428).

19 See also Zaremba Fla. Co. v. Klinger, 550 So. 2d 1131, 1132 (Fla. 3d DCA 1989) (each of nine counts in complaint stated separate action and plaintiffs were only entitled to fees for the one count on which they prevailed); Great Sw. Fire Ins. Co. v. DeWitt, 458 So. 2d 398, 400 (Fla. 1st DCA 1984) (partial success warranted partial award).

20 See, e.g., Fla. Stat. §59.46 (“In the absence of an expressed contrary intent, any provision of a statute or of a contract entered into after October 1, 1977, providing for the payment of attorneys’ fees to the prevailing party shall be construed to include the payment of attorneys’ fees to the prevailing party on appeal.”).

21 Fla. Stat. §57.105(7).

22 Holiday Square Owners Ass’n, Inc. v. Tsetsenis, 820 So. 2d 450, 453 (Fla. 5th DCA 2002); see also Fla. Hurricane Prot. & Awning, Inc. v. Pastina, 43 So. 3d 893, 894 (Fla. 4th DCA 2010).

23 See Fla. Stat. §59.46.

24 See, e.g., Fla. Stat. §59.46; Motter Roofing, Inc. v. Leibowitz, 833 So. 2d 788, 789 (Fla. 3d DCA 2002).

25 See Fla. Stat. §768.79; Fla. R. Civ. P. 1.442. The “judgment obtained” is defined by the statute and interpreting case law, and generally means the net judgment plus pre-offer costs. See, e.g., White v. Steak & Ale of Florida, Inc., 816 So. 2d 546 (Fla. 2002).

26 See Fla. R. Civ. P. 1.442(g) & 1.525. The case law is unclear as to whether, when, or to what extent a motion for rehearing or appeal may toll this deadline, and the better practice is to serve the fee motion within 30 days of the filing of the judgment, without regard to rehearing or appeal. See, e.g., Jackson v. Anthony, 39 So. 3d 1285, 1286 (Fla. 1st DCA 2010); State Farm Mut. Auto. Ins. Co. v. Horkheimer, 901 So. 2d 329, 331 (Fla. 4th DCA 2005). Rule 1.090(b) may provide a basis for requesting an extension of time, even if the deadline is missed. See Saia Motor Freight Line, Inc. v. Reid, 930 So. 2d 598, 600 n.3 (Fla. 2006); Dep’t of Transp. v. Southtrust Bank, 886 So. 2d 393, 394 (Fla. 1st DCA 2004).

27 See Fla. Stat. §768.79(8) (“Evidence of an offer is admissible only in proceedings to enforce an accepted offer or to determine the imposition of sanctions under this section.”); Fla. R. Civ. P. 1.442(d) (“A proposal shall be served on the party or parties to whom it is made but shall not be filed unless necessary to enforce the provisions of this rule.”).

28 See, e.g., State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067 (Fla. 2006); Tierra Holdings, Ltd. v. Mercantile Bank, 78 So. 3d 558 (Fla. 1st DCA 2011).

29 Rosen v. Rosen, 696 So. 2d 697, 699 (Fla. 1997).

30 Lovell v. Lovell, 14 So. 3d 1111, 1117 (Fla. 5th DCA 2009); see also Fla. Stat. §61.16(1) (“In determining whether to make attorneys’ fees and costs awards at the appellate level, the court shall primarily consider the relative financial resources of the parties, unless an appellate party’s cause is deemed to be frivolous.”).

31 See, e.g., Wendy’s of N.E. Florida, Inc. v. Vandergriff, 865 So. 2d 520, 524 (Fla. 1st DCA 2003) (quoting Visoly v. Security Pacific Credit Corp., 768 So. 2d 482, 491 (Fla. 3d DCA 2000)).

32 de Vaux v. Westwood Baptist Church, 953 So. 2d 677, 683 (Fla. 1st DCA 2007).

33 Id. (quoting Wendy’s, 865 So. 2d at 524).

34 See, e.g., id. at 684.

35 See generally Albritton v. Ferrera, 913 So. 2d 5, 8-10 (Fla. 1st DCA 2005) (explaining 57.105(1) permits a “reverse frivolous claim” for fees).

36 See Fla. R. App. P. 9.410(b)(3)-(b)(4).

37 Fla. R. App. P. 9.410(b)(2).

38 See Fla. R. App. P. 9.410(b)(2)-(b)(3).

39 Fla. R. App. P. 9.410(b)(3).

40 Fla. R. App. P. 9.410(b)(4).

41 Id.

42 Fla. R. App. P. 9.410(b)(5).

43 See generally, Florida Hurricane Prot. & Awning, Inc. v. Pastina, 43 So. 3d 893, 895 (Fla. 4th DCA 2010); Hilyer Sod, Inc. v. Willis Shaw Express, Inc., 817 So. 2d 1050, 1054 (Fla. 1st DCA 2002), approved, 849 So. 2d 276 (Fla. 2003).

44 The following is a list of a few additional statutes that may provide a basis for attorneys’ fees in a given case: Fla. Stat. §78.20 (prevailing defendant in replevin action); Fla. Stat. §83.49(3)(c) (prevailing party in residential landlord-tenant dispute over security deposit); Fla. Stat. §120.595 (prevailing party in some circumstances in certain administrative law cases); Fla. Stat. §448.08 (prevailing party in an employee’s action for lost wages); Fla. Stat. §627.428 (prevailing insured in most insurance actions, not including an action for uninsured motorist benefits unless coverage is disputed, see Fla. Stat. §627.727(8)); Fla. Stat. §713.29 (prevailing party in action to enforce construction lien); Fla. Stat. §817.41(6) (prevailing party in civil action for violation of misleading advertising statute). This list is far from exhaustive, and the practitioner is again cautioned to consult the controlling statutes and case law to determine whether fees are authorized and how to obtain them in a particular case.

Bretton C. Albrecht is an associate in the appellate division at Kubicki Draper, P.A. Before joining Kubicki Draper, she served as a senior staff attorney at Florida’s Fifth District Court of Appeal. She earned her J.D., with honors, from the University of Mississippi School of Law.

This column is submitted on behalf of the the Appellate Practice Section, Jack R. Reiter, chair; Brandon Christian, editor, and Chris McAdams and Kristi Rothell, assistant editors.

Appellate Practice