Timely Move for Appellate Attorney’s Fees (if You have a Basis!)
Moving for appellate attorney’s fees? If you do, make sure you TIMELY file a motion! Appeals take time…in many instances, lots of time…and if there is a basis to recover attorney’s fees, you want to make sure a motion is timely filed and supported by a contractual or statutory basis.
Florida Rule of Appellate Procedure 9.400 governs appellate costs and fees. This Rule provides:
(a) Costs. Costs shall be taxed in favor of the prevailing party unless the court orders otherwise. Taxable costs shall include
(1) fees for filing and service of process;
(2) charges for preparation of the record and any hearing or trial transcripts necessary to determine the proceeding;
(3) bond premiums; and
(4) other costs permitted by law.
Costs shall be taxed by the lower tribunal on a motion served no later than 45 days after rendition of the court’s order. If an order is entered either staying the issuance of or recalling a mandate, the lower tribunal is prohibited from taking any further action on costs pending the issuance of a mandate or further order of the court.
(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 be served not later than:
(1) in appeals, the time for service of the reply brief; 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.
(c) Review. Review of orders rendered by the lower tribunal under this rule shall be by motion filed in the court within 30 days of rendition.
The entitlement to attorney’s fees must be supported by a statutory or contractual basis. State, Dept. of Highway Safety and Motor Vehicles v. Trauth, 971 So.2d 906, 908 (Fla. 3d DCA 2007). It is incumbent on a party to timely file a motion for appellate attorney’s fees if they want to recover attorney’s fees relating to the appeal. An appellate court has jurisdiction to award appellate attorney’s fees. Bartow HMA, LLC v. Kirkland, 146 So.3d 1213, 1215 (Fla. 2d DCA 2014). “Once the appellate court determines that an award of appellate attorney’s fees is appropriate, a mandate is issued to the trial court to impose the fees after conducting a hearing. Absent a mandate, the trial court has no jurisdiction to award appellate attorney’s fees.” Respiratory Care Services, Inc. v. Murray D. Shear, P.A., 715 So.2d 1054, 1056 (Fla. 5th DCA 1998).
Please contact David Adelstein at [email protected] or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.
