Florida Supreme Court Clarifies Procedure for Seeking Attorney\u2019s Fees for Original Proceedings<\/p>\n
There has been some confusion about when and how a party must seek prevailing-party attorney\u2019s fees for an original proceeding in an appellate court under Rule 9.100, including petitions for writs of certiorari, mandamus, prohibition, habeas corpus, quo warranto, and \u201call writs.\u201d Until late 2012 most practitioners believed they could seek their attorney\u2019s fees, when warranted by an applicable statute or contract provision, by filing a motion for attorney\u2019s fees after the appellate court ruled on the petition. In December of 2012 the Fourth District Court of Appeal (\u201cFourth DCA\u201d) held that a request for fees in an original proceeding must appear within the pleadings (the petition, response, or reply).<\/p>\n
However, in May of 2014, the Florida Supreme Court held in Advanced Chiropractic and Rehabilitation Center v. United Automobile Insurance Co<\/em>., 140 So. 3d 529 (Fla. 2014) that a separate motion is the proper way to seek fees for an original proceeding, although the motion does not fall under the authority of the rule that is normally cited in motions for appellate attorney\u2019s fees.<\/p>\n The case arose from litigation in a Personal Injury Protection insurance benefits matter. Advanced Chiropractic filed a petition for certiorari in the Fourth DCA. The appellate court granted Advanced\u2019s petition, and Advanced filed a motion for attorney\u2019s fees in the Fourth DCA six days later. United Auto opposed the motion, asserting that it was untimely under rule 9.400(b), which requires that a motion for attorney’s fees be filed no later than the time for service of the reply brief. United Auto argued that Advanced was required to move for fees when it file its Reply to the Petition for Writ of Certiorari.<\/p>\n The Fourth DCA held that Rule 9.400(b) does not apply to extraordinary writ proceedings under Rule 9.100. However, it still denied Advanced\u2019s motion for fees, deciding that the request for fees was required to appear in one of the \u201cpleadings\u201d and that motions are not pleadings. Because Advanced did not request fees in its Petition or Reply, the Fourth DCA rejected Advanced\u2019s motion for attorney\u2019s fees as untimely.<\/p>\n Advanced obtained review by the Florida Supreme Court, which agreed with the Fourth DCA on one point: that Rule 9.400(b) does not apply to seeking attorney\u2019s fees in original proceedings under Rule 9.100, so Rule 9.400(b) does not govern the time or method by which a party must request attorney’s fees for an original proceeding. However, the Supreme Court quashed the Fourth DCA\u2019s decision insofar as it had decided that a request for attorney\u2019s fees must be made in a pleading (rather than a motion) in appellate-level original writ proceedings.<\/p>\n The Supreme Court decided that Rule 9.300, which governs appellate motions in general, controls a request for attorney\u2019s fees in appellate-level extraordinary writ proceedings. Rule 9.300 \u201cdoes not specify any time period in which motions must be filed. Rather, motions simply must be timely to provide the relief sought,\u201d the Court noted. The Court did not explain exactly how to determine whether a motion is timely, but it held that Advanced\u2019s motion was timely when it was filed six days after the Fourth DCA granted the Petition.<\/p>\n Even though the Supreme Court has clarified the proper procedural vehicle, it seems likely that there will be some future litigation in other original proceedings over that it means for the motion to be timely. We would not be surprised if some parties argue that \u201ctimely\u201d should mean filing within 30 days of an order granting the petition, by analogy to a rule of civil procedure allowing 30 days to file a motion for attorney\u2019s fees after a final judgment is rendered in the trial court. Others may argue a shorter time period by analogy to various appellate rules such as the 15-day deadline to file a motion for rehearing in the appellate court.<\/p>\n Here, we are not taking a position on what it means to file the motion \u201ctimely,\u201d but the Court noted: \u201cmany motions that may be filed in an appellate court are not governed by a fixed time limit, but these motions must still be submitted in a timely fashion,\u201d or otherwise, \u201c[i]It may be too late to obtain the relief requested.\u201d Id. at 536<\/em> (e.s.; internal quotes and citation omitted). It is important to file the motion for fees promptly to avoid claims of untimeliness.<\/p>\n NOTE: After publication of the above blog in the fall of 2014, the Florida Supreme Court amended the appellate rules at the end of 2014 to require a motion for attorney\u2019s fees under Rule 9.400(b). In re: Amendments to the Fla. Rules of Appellate Proc<\/em>., 183 So. 3d 245, 264 (Fla. 2014). The revised Rule 9.400(b)(2) provides that a motion for attorney\u2019s fees in original proceedings under Rule 9.100 \u201cshall be served not later than … the time for service of the petitioner\u2019s reply to the response to the petition.\u201d This language superseded the holding in Advanced Chiropractic<\/em>. Please review our more recent article<\/a> on this subject in Attorney at Law Magazine, discussing how to avoid common pitfalls when seeking fees in original proceedings under Rule 9.400(b)(2).<\/p>\n","protected":false},"excerpt":{"rendered":" Florida Supreme Court Clarifies Procedure for Seeking Attorney\u2019s Fees for Original Proceedings There has been some confusion about when and how a party must seek prevailing-party attorney\u2019s fees for an original proceeding in an appellate court under Rule 9.100, including petitions for writs of certiorari, mandamus, prohibition, habeas corpus, quo warranto, and \u201call writs.\u201d Until…<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[1811,1812],"tags":[1855,2073,2437,1875,1932,2008,2655,2656,2657,2658,1921,2659,2660,2661,2662,1944,2663,2664,2665,2239],"class_list":["post-2105","post","type-post","status-publish","format-standard","hentry","category-4th-dca-rulings","category-attorneys-fees","tag-appellate-court","tag-attorneys-fees","tag-civil-procedure","tag-florida-supreme-court","tag-fourth-dca","tag-fourth-district-court-of-appeal","tag-habeas-corpus","tag-insurance-benefits","tag-litigation","tag-mandamus","tag-motion","tag-motion-for-fees","tag-personal-injury-protection","tag-petitions-of-writs-of-certiorari","tag-phrohibition","tag-pleadings","tag-proceedings","tag-quo-warranto","tag-request-for-fees","tag-statute"],"acf":[],"_links":{"self":[{"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/posts\/2105","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/comments?post=2105"}],"version-history":[{"count":0,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/posts\/2105\/revisions"}],"wp:attachment":[{"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/media?parent=2105"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/categories?post=2105"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/tags?post=2105"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}