Fee simple: a procedural primer on appellate attorneys' fees and costs.

• Author: Albrecht, Bretton C.

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...