October 5, 2012

There and Back Again: Recovering Appellate Attorney’s Fees After a Successful Appeal

Bresky Law recently obtained entitlement to appellate attorney’s fees in several appeals in which it prevailed. Additionally, Florida Rule of Appellate Procedure 9.400(a) provides that a prevailing party on appeal is entitled to recover its costs for litigating an appeal unless the appellate court orders otherwise. The recovery of appellate attorney’s fees and costs following a victory on appeal can sometimes be confusing for parties unfamiliar with the procedure. A brief explanation of the process follows. The general procedure is outlined below, but will differ somewhat where fees are granted as a sanction for a party’s or attorney’s conduct.

The most important point for practitioners to understand in recovering appellate attorney’s fees is that the appellate court typically only awards a party entitlement to appellate attorney’s fees. A party’s entitlement to fees will be based upon a substantive statute or contract. The party will then need to seek the actual award of appellate attorney’s fees in the trial court following remand. However, the appellate court does not award entitlement to fees automatically – a party must file a motion requesting its fees in the appellate court.

The correct procedure for a party to ensure recovery of its appellate attorney’s fees is to first make sure to file a timely motion for appellate attorney’s fees in the appellate court. Rule 9.400(b) requires that a fees motion be filed no later than the time for the appellant’s reply brief, and must state the grounds for entitlement. If the party requesting fees prevails on appeal and the appellate court grants the motion for fees, the appellate court’s order will often contain language stating that the trial court is to determine the amount. In family law cases, the appellate court’s order will often state that the fees are granted conditioned upon the trial court’s determination of the party’s need and the other party’s ability to pay.

The procedure to recover costs is a bit simpler. No motion requesting entitlement to costs is necessary in the appellate court. Pursuant to Rule 9.400(a), a party has thirty days from the issuance of the appellate court’s mandate to serve a motion in the trial court seeking the party’s appellate costs for the successful appeal. Rule 9.400(a) provides a list of included taxable cost items. Although there is no corresponding 30-day deadline for a motion for appellate attorney fees to be filed in the trial court, the better practice is to file both the motion for costs and fees in the trial court within thirty days of the appellate court mandate.