Florida Supreme Court Clarifies Procedure for Seeking Attorney’s Fees for Original Proceedings

Florida Supreme Court Clarifies Procedure for Seeking Attorney’s Fees for Original Proceedings

There has been some confusion about when and how a party must seek prevailing-party attorney’s 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 “all writs.” Until late 2012 most practitioners believed they could seek their attorney’s fees, when warranted by an applicable statute or contract provision, by filing a motion for attorney’s fees after the appellate court ruled on the petition. In December of 2012 the Fourth District Court of Appeal (“Fourth DCA”) held that a request for fees in an original proceeding must appear within the pleadings (the petition, response, or reply).

However, in May of 2014, the Florida Supreme Court held in Advanced Chiropractic and Rehabilitation Center v. United Automobile Insurance Co., 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’s fees.

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’s petition, and Advanced filed a motion for attorney’s 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.

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’s motion for fees, deciding that the request for fees was required to appear in one of the “pleadings” and that motions are not pleadings. Because Advanced did not request fees in its Petition or Reply, the Fourth DCA rejected Advanced’s motion for attorney’s fees as untimely.

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’s 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’s decision insofar as it had decided that a request for attorney’s fees must be made in a pleading (rather than a motion) in appellate-level original writ proceedings.

The Supreme Court decided that Rule 9.300, which governs appellate motions in general, controls a request for attorney’s fees in appellate-level extraordinary writ proceedings. Rule 9.300 “does not specify any time period in which motions must be filed. Rather, motions simply must be timely to provide the relief sought,” the Court noted. The Court did not explain exactly how to determine whether a motion is timely, but it held that Advanced’s motion was timely when it was filed six days after the Fourth DCA granted the Petition.

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 “timely” 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’s 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.

Here, we are not taking a position on what it means to file the motion “timely,” but the Court noted: “many 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,” or otherwise, “[i]It may be too late to obtain the relief requested.” Id. at 536 (e.s.; internal quotes and citation omitted). It is important to file the motion for fees promptly to avoid claims of untimeliness.