Page 46 - Miami Vol 7 No 2

ROBIN BRESKY AND RANDALL BURKS | Appellate Law
Attorney’s Fees in Original Proceedings Under
Rule 9.100: Pitfalls to Avoid
Aparty seeking or opposing is- suance of a writ in an original proceeding under Florida Rule of Appellate Procedure 9.100 may have statutory or contractual grounds for seeking an award of attorney’s fees, but there are some potential pro- cedural pitfalls as to the method and timing of requesting the award.
METHOD
e correct method of seeking attor- ney’s fees in original proceedings un- der Rule 9.100 is the ling of “a motion for attorneys’ fees [that] shall state the grounds on which recovery is sought.” Fla. R. App. P. 9.400(b).
is area of the law has developed over the past six years. In 2012, the Fourth District held that a request for fees had to be included within a pleading – the petition, response, or reply – rather than in a motion. Advanced Chiroprac- tic v. United Auto. Ins., 103 So. 3d 869, 871 (Fla. 4th DCA 2012). Two years later, the Florida Supreme Court decided that the request must be made in a motion but held that the general rule on mo- tions (Rule 9.300) applied rather than Rule 9.400(b). Advanced Chiropractic & Rehab. Ctr. v. United Auto. Ins. Co., 140 So. 3d 529, 537 (Fla. 2014). At the end of 2014, the Florida Supreme Court amended the rules to require a motion for attorney’s fees under Rule 9.400(b). In re: Amendments to the Fla. Rules of Appellate Proc., 183 So. 3d 245, 264 (Fla. 2014).
TIMING
As of this writing in 2018, Rule 9.400(b)(2) provides that a motion for attorney’s fees in original proceedings under Rule 9.100 “shall be served not laterthan...thetimeforserviceofthe petitioner’s reply to the response to the petition.” is language superseded the holding in Advanced Chiropractic, which had concluded that fee motions in original proceedings were not governed by a speci c timeline and “simply must be timely to provide the relief sought.” 140 So. 3d at 536.
Although the current rule provides a speci c deadline coinciding with the time for service of the petitioner’s reply, there is a potential pitfall. ere can be no reply unless there is a response, and a response is not allowed unless the court issues “an order either directing the re- spondent to show cause, within the time set by the court, why relief should not be granted or directing the respondent to otherwise le, within the time set by the court, a response to the petition.” Rule 9.100(h).
e court can quickly deny a petition – sometimes within a few days – without issuing an order to show cause or order- ing a response. In that situation, “the time for service of the petitioner’s reply to the response to the petition” under Rule 9.400(b)(2) never materializes. An attorney who plans to le a motion for fees at “the time for service of the peti- tioner’s reply to the response” may be caught o -guard by such a quick denial.
Even if the respondent is the de facto prevailing party upon the denial of the petition and attorney’s fees are available to the prevailing party on statutory or contractual grounds, the respondent’s lack of ling a motion for fees before
the denial of the petition will preclude receipt of prevailing-party fees because the motion for fees cannot be led a er thedenialofthepetition.GeicoGen.Ins. Co. v. Moultrop, 190 So. 3d 124 (Fla. 4th DCA2015).
In Geico, the Fourth District denied a petition for writ of certiorari without ordering a response. e petitioner led a motion for rehearing. e respondent then led a response to the motion for rehearing and moved for attorney’s fees. e court denied the petitioner’s mo- tion for rehearing and also denied the prevailing respondent’s motion for fees because it was untimely when led a er the petition had been denied.
Additional problems can arise in cer- tain areas of the law where eligibility for attorney’s fees is based on equity such as in family law where awards of fees are generally based on need and ability un- der section 61.16(1), Fla. Stat. As another example, attorney’s fees in trust actions are awarded “as in chancery actions” under section 736.1004(1), Fla. Stat., and “a court of equity may, as justice re- quires, order that costs follow the result of the suit, apportion the costs between the parties, or require all costs be paid by the prevailing party.” Nalls v. Millender, 721 So. 2d 426, 427 (Fla. 4th DCA 1998) (internal quotes and citations omitted). Even if equity can support an award to the non-prevailing party in such areas, any award would be precluded under Geico unless the party moved for fees before the denial of the petition.
Accordingly, it would be prudent for a petitioner’s attorney to le a motion for attorney’s fees at the same time as the petition and the respondent’s attorney would be wise to le a motion for fees the next day.
Robin Bresky, of The Law Of ces of Robin Bresky in Boca Raton, is an appellate attor- ney who handles civil and criminal appeals and litigation support matters throughout Florida. Robin is a member of The Florida Bar Board of Governors. She is the immedi- ate past president of the National Conference of Women’s Bar Associations and is a past president of the Florida Association for Women Lawyers. Randall Burks is an ex- perienced appellate attorney with the rm. You can visit www.BreskyAppellate.com for more information.
ROBIN BRESKY
RANDALL BURKS
ATTORNEY AT LAW MAGAZINE · MIAMI · VOL. 7 NO. 2 46