Attorneys' fees on appeal: basic rules and new requirements.

• Author: Gunn, Tracy Raffles
• Position: Florida

There have been a number of recent changes in the law regarding recovery of attorneys' fees on appeal. Some courts have become stricter in enforcing procedural requirements, while other case law creates new opportunities for fee recovery on appeal. Additionally, some of the unique procedures in appellate fee recovery are unknown to many lawyers, who may inadvertently waive a fee claim if they are not familiar with those procedures. This article will outline both the basic rules and the new issues involved in claiming prevailing party attorneys' fees for handling an appeal in Florida state court. (1)

Time for Filing the Motion

The most important lesson for both trial counsel and appellate counsel regarding appellate attorneys' fees is that they must be requested during the appeal. Specifically, counsel must request a fee award by motion filed in the appellate court; the motion must be in a separate document; (2) and the motion must be served within the time for service of the reply brief. (3) This is somewhat counter-intuitive for most trial lawyers, who are accustomed to filing a motion for attorneys' fees only after they have prevailed in the case. The key lesson for the trial lawyer is to make sure that the appellate lawyer knows at the beginning of the appeal whether there is any basis (or potential basis) for a fee claim, so that the proper motion can be filed.

A timely motion must be filed in order to preserve the claim for appellate attorneys' fees, even if the award of fees is mandatory by statute. (4) The existence of a statute providing that the court "shall" award fees does not excuse a party from filing the motion required under the appellate rules. (5)

Any response to the motion must be served within 10 days. (6) Failure to serve a response to a motion for attorneys' fees may amount to a waiver of the right to oppose the fees claim. (7) An award of attorneys' fees at the trial court level is not essential to the award of fees on appeal. (8)

Florida's Rules of Appellate Procedure describe the procedure for filing of a motion for attorneys' fees, but the rules do not provide a substantive basis for an attorneys' fees claim. (9) A party is entitled to fees for an appeal only if there is an independent basis for such recovery. (10)

The motion must state the basis for the fee claim, or the motion will be denied. (11) If the claim is based on statute, the statute and relevant case law should be cited. If the claim is based on a contract, the contract should be attached to the motion or a record citation provided. F. S. [section] 59.46 provides that a contract or statute generally allowing for payment of attorneys' fees to the prevailing party is presumed to include fees for an appeal.

Although Rule 9.400 ties the time for service of the fees motion to the time for service of the reply brief, the rule allows motions for attorneys' fees in original proceedings in appellate courts as well. (12)

Who Is the "Prevailing" Party?

There has been a change in the law, and there may be a conflict among the district courts of appeal, as to the "prevailing party" aspect of a prevailing party fee award for appeals.

It is clear that a party must "prevail" at the end of the case in order to recover fees for an appeal. (13) In many cases, such as those involving interlocutory appeals, parties must request (and the appellate court must grant or deny) fees for the appeal before the ultimate outcome of the case is determined. In such cases, the appellate court will enter a "provisional" or "conditional" fee order, granting attorneys' fees for the appeal to the requesting party if he prevails at the end of the case. (14) Even if the appellate court's order does not specifically state that it is provisional, the provisional nature of the order is implied, and it is error to assess fees for the appeal until the outcome of the case has been determined. (15)

The long-standing rule is that a party must also prevail on the appeal to be entitled to attorneys' fees for that appeal; prevailing at the end of a case does not resurrect a fees claim for the lost appeal. (16) As Judge Padovano explained: "Although it is not expressly stated in Rule 9.400(b), the right to recover an attorney's fee for services rendered in an appellate proceeding is limited to the prevailing party." (17)

However, the Fourth District has recently changed this rule, apparently creating a new theory of appellate fee recovery. In Aksomitas v. Maharaj, 771 So. 2d 541 (Fla. 4th DCA 2000), the court held that parties prevailing on the "significant issues" in a case, who are entitled to recover attorneys' fees under a prevailing party attorneys' fee provision, may recover fees for appeals in which they had not prevailed. In so holding, the Fourth DCA considered Moritz v. Hoyt Enter., Inc., 604 So. 2d 807 (Fla. 1992), in which the Florida Supreme Court adopted the "significant issues" test for determining which party prevails in a prevailing party fee dispute. (18) Although Moritz deals solely with the issue of which party prevails, the Fourth DCA in Aksomitas interprets Moritz to mean that a lost appeal can be included in the fees assessed as long as the party prevails on the "significant issues" at the end of the case. The Aksomitas court stated that the new rule was intended to make prevailing parties "whole," ostensibly even for appellate proceedings which they lost during the case.

There are some potential limitations on the Aksomitas analysis. The Aksomitas court acknowledged the long-standing rule that fees would not be recoverable for an "unnecessary" appeal. (19) Counsel opposing a fees claim for a lost appeal should argue that the appeal was unnecessary. Furthermore, Aksomitas involved a mutual contractual right to prevailing party fees, and therefore was controlled by Moritz. The Moritz analysis does not apply to at least some one-sided attorneys' fee provisions. (20) If Moritz does not apply to a given claim or case, counsel should question whether Aksomitas applies. (21)

Courts following the Aksomitas decision will have to adopt a new procedure. The court will basically be required to grant any party's motion for fees under a prevailing party standard, which means that in many cases both sides will obtain a provisional fee award from the appellate court. The trial court will then apparently decide which party should be awarded appellate fees, as part of its assessment of which party prevailed on the "significant issues" in the case. This will shift to the trial courts the historical role of the appellate courts in determining entitlement to fees for the appeal. Whether fees for the appeal should be included may ultimately become a question of "amount" rather than entitlement. (22)

In fact, allowing recovery for a lost appeal to be included in a prevailing party fee award seems to be a reversion to the "net recovery" rule rather than the "significant issues" test, since it would allow a party who does not prevail in an appeal to recover for the lost appellate proceeding solely because of the "net" outcome of the case. Until these issues are resolved, at least in the Fourth DCA, counsel can now expect provisional attorneys' fees awards even in favor of the party who loses on appeal if the ultimate outcome of the case is yet to be determined.

Fees Under...