A party seeking or opposing issuance 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 procedural pitfalls as to the method and timing of requesting the award.
The correct method of seeking attorney’s fees in original proceedings under Rule 9.100 is the filing of “a motion for attorneys’ fees [that] shall state the grounds on which recovery is sought.” Fla. R. App. P. 9.400(b).
This 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 Chiropractic 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 motions (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).
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 later than . . . the time for service of the petitioner’s reply to the response to the petition.” This language superseded the holding in Advanced Chiropractic, which had concluded that fee motions in original proceedings were not governed by a specific timeline and “simply must be timely to provide the relief sought.” 140 So. 3d at 536.
Although the current rule provides a specific deadline coinciding with the time for service of the petitioner’s reply, there is a potential pitfall. There can be no reply unless there is a response, and a response is not allowed unless the court issues “an order either directing the respondent to show cause, within the time set by the court, why relief should not be granted or directing the respondent to otherwise file, within the time set by the court, a response to the petition.” Rule 9.100(h).
The court can quickly deny a petition – sometimes within a few days – without issuing an order to show cause or ordering 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 file a motion for fees at “the time for service of the petitioner’s reply to the response” may be caught off-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 filing a motion for fees before the denial of the petition will preclude receipt of prevailing-party fees because the motion for fees cannot be filed after the denial of the petition. Geico Gen. Ins. Co. v. Moultrop, 190 So. 3d 124 (Fla. 4th DCA 2015).
In Geico, the Fourth District denied a petition for writ of certiorari without ordering a response. The petitioner filed a motion for rehearing. The respondent then filed a response to the motion for rehearing and moved for attorney’s fees. The court denied the petitioner’s motion for rehearing and also denied the prevailing respondent’s motion for fees because it was untimely when filed after the petition had been denied.
Additional problems can arise in certain 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 under 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 requires, 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 file a motion for attorney’s fees at the same time as the petition and the respondent’s attorney would be wise to file a motion for fees the next day. Robin Bresky