By Jared Michael Krukar, Esq.
Florida Rule of Appellate Procedure 9.400(b) establishes the procedure for seeking attorney fees on appeal. Many practitioners have long assumed that the rule similarly applies to original proceedings, there being no other rule clearly providing an alternative procedure. However, two recent opinions establish that rule 9.400(b) does not apply to original proceedings.
The Fourth District Holds That Rule 9.400(b) Does Not Apply.
The Fourth District Court of Appeal first questioned the relevance of rule 9.400(b) to original proceedings in Advanced Chiropractic and Rehabilitation Center Corp. v. United Automobile Insurance Company.1 In that certiorari proceeding, the petitioner made its first request for fees in a motion led three days after the court had awarded the petitioner its requested certiorari relief.2 The Fourth District initially denied the motion for fees as untimely pursuant to rule 9.400(b), which provides that a motion “may be served not later than . . . the time for service of the reply brief.”3 The petitioner moved for rehearing, arguing that rule 9.400(b) did not apply to original proceedings, but only to “a standard appeal with respect to a series of briefs.”4
Upon reconsideration, the Fourth District agreed that the language of rule 9.400(b) limited its application to appeals, and not to original proceedings.5 However, the court concluded that the petitioner’s request was still untimely.6 It relied on the supreme court’s decisions in Stockman v. Downs7 and Green v. Sun HarborHomeowners’ Association, Inc.8— both trial court fee cases — to hold that a re quest for attorney fees must be pled in the original petition, response, or reply, in a certiorari proceeding.9
Hence, the court likened an original proceeding in the appellate court to an original lawsuit in the trial court, where entitlement to fees usually must be pled in a plaintiff’s complaint or a defendant’s answer. The motion that was filed after the writ was granted was insufficient.
The Florida Supreme Court Partly Agrees With the Fourth District, but Holds a Different Procedure Applies.
The supreme court took jurisdiction over the case to review alleged express and direct conflict between the Fourth District’s opinion and Stockman and Green.10 The court agreed with the Fourth District that rule 9.400(b) “does not and was not intended to apply to rule 9.100 original proceedings . . . [so it] does not govern the time or method by which a party to a rule 9.100 original proceeding must request attorney fees.”11 However, the court “conclude[d] that the Fourth District misapplied Stockman and Green—cases that address requests for attorneys’ fees at the trial level—to a situation materially at variance with the one under review— a request for appellate-level original writ attorneys’ fees.”12
After determining that rule 9.400(b) procedures do not apply in original proceedings, the court determined the proper procedure for seeking fees in an original writ. It held that Florida Rule of Appellate Procedure 9.300—the general rule for appellate motions — governs.13 And because rule 9.300 does not set a prescribed time for a motion for fees, the court held that such motion “simply must be timely to provide the relief sought.”14
Consequently, Florida law currently requires a party seeking an award of fees in an original writ proceeding only to file a motion for fees under rule 9.300, within sufficient time to obtain relief requested.
The Florida Appellate Court Rules Committee Recommends Amending Rule 9.400(b) to Include Original Proceedings.
Following the Fourth District’s Advanced Chiropractic opinion — but before the supreme court’s subsequent ruling — the Florida Appellate Court Rules Committee recommended amendment to rule 9.400(b) specifically to “clarify any confusion caused by [that opinion].”15 The following is the committee’s proposal:16
(b) Attorneys’ Fees. With the exception of motions filed pursuant to rule 9.410(b), a motion for attorneys’ fees shall state the grounds on which recovery is sought and shall may be served not later than:
(1) in appeals, the time for service of the reply brief and shall state the grounds on which recovery is sought; or
(2) in original proceedings, the time for service of the petitioner’s reply to the response to the petition.
The assessment of attorneys’ fees may be remanded to the lower tribunal. If attorneys’ fees are assessed by the court, the lower tribunal may enforce payment.
Thus, the Committee seeks to bring both original and appellate proceedings under the same rule and procedure. The supreme court has not yet acted upon this proposed amendment.
The process for seeking fees in original proceedings has been unsettled over the past year. If the supreme court ultimately adopts the Committee’s proposed rule change, it will mark the third procedural modification in less than twelve months. Practitioners should watch upcoming rule amendments from the Florida Supreme Court to ensure they remain in compliance with current standards, satisfy any potential new standards, and avoid unintended abandonment of fee claims in original proceedings.
Update (April 12, 2018)
The Florida Supreme Court adopted the Appellate Court Rules Committee’s proposed amendment on November 6, 2014. The new rule language took effect on January 1, 2015. In re Amendments to Florida Rules of Appellate Procedure, 183 So. 3d 245, 264 (Fla. 2014).
- 103 So. 2d 869 (Fla. 4th DCA 2012).
- Id. at 870.
- Id.; Fla. R. App. P. 9.400(b).
- Advanced Chiropractic, 103 So. 3d at 870- 71.
- Id. at 871.
- 573 So. 2d 835 (Fla. 1991).
- 730 So. 2d 1261 (Fla. 1998).
- Advanced Chiropractic, 103 So. 2d at 870- 71.
- Advanced Chiropractic and Rehabilitation Center, Corp. v. United Auto. Ins. Co., 2014 WL 2208895 (Fla. May 29, 2014).
- Id. at *4.
- Id. at 6.
- Appellate Court Rules Committee, Three- Year Cycle Report of the Appellate Court Rules Committee, page 17 (petition led February 3, 2014, in case number SC14-227) (available at http://www.floridasupremecourt.org/clerk/ comments/2014/14-227_020314_Petition.pdf).
- Appellate Court Rules Committee, Appendix B to Three-Year Cycle Report of the Appellate Court Rules Committee, page B-127 (filed February 3, 2014, in case number SC14-227) (available at http://www.floridasupremecourt.org/clerk/comments/2014/14-227_020314_Appendix%20B.pdf).