Appellate Practice and Advocacy
Attorneys’ Fees on Appeal:
Basic Rules and New Requirements
by Tracy Raffles Gunn
here have been a number an appeal only if there is an inde-
of recent changes in the pendent basis for such recovery.10
law regarding recovery of The most important The motion must state the basis for
attorneys’ fees on appeal. the fee claim, or the motion will be
Some courts have become stricter lesson for both trial denied.11 If the claim is based on
in enforcing procedural require- statute, the statute and relevant
ments, while other case law creates counsel and case law should be cited. If the
new opportunities for fee recovery claim is based on a contract, the
on appeal. Additionally, some of the appellate counsel contract should be attached to the
unique procedures in appellate fee motion or a record citation provided.
recovery are unknown to many law- regarding appellate F. S. §59.46 provides that a contract
yers, who may inadvertently waive or statute generally allowing for
a fee claim if they are not familiar attorneys’ fees is payment of attorneys’ fees to the
with those procedures. This article prevailing party is presumed to in-
will outline both the basic rules and
the new issues involved in claim-
that they must be clude fees for an appeal.
Although Rule 9.400 ties the time
ing prevailing party attorneys’ fees for service of the fees motion to the
for handling an appeal in Florida
requested during time for service of the reply brief,
state court.1 the rule allows motions for attor-
the appeal. neys’ fees in original proceedings in
Time for Filing the Motion appellate courts as well.12
The most important lesson for
both trial counsel and appellate order to preserve the claim for ap- Who Is the
counsel regarding appellate attor- pellate attorneys’ fees, even if the “Prevailing” Party?
neys’ fees is that they must be re- award of fees is mandatory by stat- There has been a change in the
quested during the appeal. Specifi- ute.4 The existence of a statute pro- law, and there may be a conflict
cally, counsel must request a fee viding that the court “shall” award among the district courts of appeal,
award by motion filed in the appel- fees does not excuse a party from as to the “prevailing party” aspect
late court; the motion must be in a filing the motion required under the of a prevailing party fee award for
separate document;2 and the motion appellate rules.5 appeals.
must be served within the time for Any response to the motion must It is clear that a party must “pre-
service of the reply brief.3 This is be served within 10 days.6 Failure vail” at the end of the case in order
somewhat counter-intuitive for to serve a response to a motion for to recover fees for an appeal.13 In
most trial lawyers, who are accus- attorneys’ fees may amount to a many cases, such as those involv-
tomed to filing a motion for attor- waiver of the right to oppose the fees ing interlocutory appeals, parties
neys’ fees only after they have pre- claim.7 An award of attorneys’ fees must request (and the appellate
vailed in the case. The key lesson at the trial court level is not essen- court must grant or deny) fees for
for the trial lawyer is to make sure tial to the award of fees on appeal.8 the appeal before the ultimate out-
that the appellate lawyer knows at Florida’s Rules of Appellate Pro- come of the case is determined. In
the beginning of the appeal whether cedure describe the procedure for such cases, the appellate court will
there is any basis (or potential ba- filing of a motion for attorneys’ fees, enter a “provisional” or “condi-
sis) for a fee claim, so that the but the rules do not provide a sub- tional” fee order, granting attor-
proper motion can be filed. stantive basis for an attorneys’ fees neys’ fees for the appeal to the re-
A timely motion must be filed in claim.9 A party is entitled to fees for questing party if he prevails at the
THE FLORIDA BAR JOURNAL/APRIL 2002 31
end of the case.14 Even if the appel- to recover attorneys’ fees under a long-standing rule that fees would
late court’s order does not specifi- prevailing party attorneys’ fee pro- not be recoverable for an “unneces-
cally state that it is provisional, the vision, may recover fees for appeals sary” appeal.19 Counsel opposing a
provisional nature of the order is in which they had not prevailed. In fees claim for a lost appeal should
implied, and it is error to assess fees so holding, the Fourth DCA consid- argue that the appeal was unneces-
for the appeal until the outcome of ered Moritz v. Hoyt Enter., Inc., 604 sary. Furthermore, Aksomitas in-
the case has been determined.15 So. 2d 807 (Fla. 1992), in which the volved a mutual contractual right to
The long-standing rule is that a Florida Supreme Court adopted the prevailing party fees, and therefore
party must also prevail on the ap- “significant issues” test for deter- was controlled by Moritz. The Moritz
peal to be entitled to attorneys’ fees mining which party prevails in a analysis does not apply to at least
for that appeal; prevailing at the end prevailing party fee dispute. 18 Al- some one-sided attorneys’ fee pro-
of a case does not resurrect a fees though Moritz deals solely with the visions.20 If Moritz does not apply
claim for the lost appeal.16 As Judge issue of which party prevails, the to a given claim or case, counsel
Padovano explained: “Although it is Fourth DCA in Aksomitas interprets should question whether Aksomitas
not expressly stated in Rule Moritz to mean that a lost appeal applies.21
9.400(b), the right to recover an can be included in the fees assessed Courts following the Aksomitas
attorney’s fee for services rendered as long as the party prevails on the decision will have to adopt a new
in an appellate proceeding is limited “significant issues” at the end of the procedure. The court will basically
to the prevailing party.”17 case. The Aksomitas court stated be required to grant any party’s
However, the Fourth District has that the new rule was intended to motion for fees under a prevailing
recently changed this rule, appar- make prevailing parties “whole,” party standard, which means that
ently creating a new theory of ap- ostensibly even for appellate pro- in many cases both sides will obtain
pellate fee recovery. In Aksomitas v. ceedings which they lost during the a provisional fee award from the
Maharaj, 771 So. 2d 541 (Fla. 4th case. appellate court. The trial court will
DCA 2000), the court held that par- There are some potential limita- then apparently decide which party
ties prevailing on the “significant tions on the Aksomitas analysis. The should be awarded appellate fees, as
issues” in a case, who are entitled Aksomitas court acknowledged the part of its assessment of which party
prevailed on the “significant issues”
in the case. This will shift to the trial
courts the historical role of the ap-
pellate courts in determining en-
titlement to fees for the appeal.
Whether fees for the appeal should
be included may ultimately become
a question of “amount” rather than
In fact, allowing recovery for a lost
appeal to be included in a prevail-
ing party fee award seems to be a
reversion to the “net recovery” rule
rather than the “significant issues”
test, since it would allow a party
who does not prevail in an appeal to
recover for the lost appellate pro-
ceeding solely because of the “net”
outcome of the case. Until these is-
sues are resolved, at least in the
Fourth DCA, counsel can now expect
provisional attorneys’ fees awards
even in favor of the party who loses
on appeal if the ultimate outcome
of the case is yet to be determined.
Fees Under §57.105
F. S. §57.105 can be used to award
appellate attorneys’ fees against a
party taking a frivolous appeal.23
The Florida Supreme Court has ex-
32 THE FLORIDA BAR JOURNAL/APRIL 2002
A frivolous appeal is not merely one that frivolous.25 The reasoning was that this patently erroneous decision.”27
is likely to be unsuccessful. It is one that
is so readily recognizable as devoid of
since the trial court’s decision is pre- The court did not directly address
merit on the face of the record that there sumed to be correct, the winning ar- much of the prior case law disallow-
is little, if any, prospect whatsoever that gument necessarily presents a jus- ing §57.105 awards to appellees, but
it can ever succeed. It must be one so ticiable issue of law or fact. explained that the 1999 amend-
clearly untenable, or the insufficiency of
which is so manifest on a bare inspec- Recently, however, at least one ments to §57.105 would allow attor-
tion of the record and assignments of court has awarded attorneys’ fees neys’ fee awards where they were
error, that its character may be deter- under §57.105 to an appellant. In previously unavailable.28 Thus, it
mined without argument or research. An
Forum v. Boca Burger, Inc., 788 So. appears that appellees can validly
appeal is not frivolous where a substan-
tial justiciable question can be spelled 2d 1055 (Fla. 4th DCA 2001), the request and be awarded attorneys’
out of it, or from any part of it, even court awarded both trial court and fees under the post-1999 version of
though such question is unlikely to be appellate fees under §57.105 to the §57.105.
decided other than as the lower court
decided it. . . .24 appellee where the appellant The Forum case also indicates
“plainly attempted to lead the trial that the previous standard for de-
Most courts previously held that judge to a result that plaintiff was fining when a position on appeal is
fee awards could not be made needlessly forced to appeal,” one frivolous is no longer controlling af-
against an appellee under §57.105 “that they know—or should know— ter 1999. Under Forum and the 1999
because an appellee’s position on is contrary to existing law,”26 and statute, both appellants and
appeal was, as a matter of law, not then “persisted in trying to uphold appellees are more likely to be ex-
THE FLORIDA BAR JOURNAL/APRIL 2002 33
posed to attorneys’ fee liability un- lower court’s attorneys’ fee order.35 prevail[s] after the completion of all
der §57.105 for their positions on Some courts have been lenient in of the litigation.”45
appeal. allowing review of an appellate fee
assessment by separate appeal. 36 Conclusion
Proposals for Some of these courts applied the There are a number of new issues
Settlement on Appeal general rule that the court will treat to be considered in protecting a
Offers of judgment or proposals an improper mechanism of review claim for appellate attorneys’ fees.
for settlement properly served dur- as if the proper method of review New cases may open the door to fees
ing the trial court proceedings can had been sought, as long as the pro- claims which have previously been
serve as the basis for an award of cedure used complies with the time unavailable, while other new cases
appellate attorneys’ fees.29 However, deadlines and substantive require- require strict compliance with the
a proposal for settlement or offer of ments applicable to the proper pro- Rules of Appellate Procedure to en-
judgment cannot be made after cedure.37 In other cases, it appears sure recovery. Appellate counsel
judgment or during an appeal.30 that the issue may not have been should be aware of these new issues
raised.38 There is also a limited ex- in order to maximize the benefit to
Attorneys’ Fee Contracts ception for review by plenary appeal the client. u
A new case from the Fourth Dis- if a single judgment disposes of is-
trict holds that appellate attorneys’ sues other than appellate attorneys’
fees may be deemed part of the origi- fees.39
nal contingency fee contract if the However, several cases have 1
This article does not specifically ad-
contract does not clearly provide oth- strictly construed the requirements dress attorneys’ fee awards in family
law cases, which are controlled by a dif-
erwise. In Arabia v. Siedlecki, 789 and refused to review an attorneys’ ferent standard. See Rados v. Rados,
So. 2d 380(Fla. 4th DCA 1995), the fee order by plenary appeal.40 Once 791 So. 2d 1130 (Fla. 2d D.C.A. 2001).
court held that a contract to handle the improper appeal is dismissed, Florida Dep’t. of Commerce, Div. of
“court proceedings” for the plaintiff Risk Mgmt. v. Davies, 379 So. 2d 1313
the time for filing the motion for re- (Fla. 1st D.C.A. 1980) (request made in
for 25 percent of the recovery was view will have passed and the party brief on cross-appeal).
ambiguous as to whether appeals will be left without review of the at- 3
Florida Rule of Appellate Procedure
were included and would therefore torneys’ fee determination. At least 9.400(b); N. Chamber Dev. Co. v.
Weaver, 508 So. 2d 390, 390 (Fla. 4th
be construed against the attorney.31 one court has recently refused to D.C.A. 1987); Lobel v. Southgate Condo.
The court concluded that the trial treat a timely notice of appeal as a Ass’n, Inc., 436 So. 2d 170, 171 (Fla. 4th
attorneys’ fee would be reduced by motion for review because the bare D.C.A. 1983). In the 11th Circuit, par-
the amount awarded to the appel- ties seeking fees for an appeal must file
notice of appeal did not state any
a petition for fees with the clerk within
late attorneys.32 grounds for reversal. 41 Of course, 14 days of the issuance of the appellate
The lesson of Arabia is that attor- notices of appeal cannot contain ar- opinion. See Mills by Mills v. Freeman,
ney fee agreements should explicitly gument, so a notice of appeal will 118 F.3d 727, 734 (11th Cir. 1997);
Davidson v. City of Avon Park, 848 F.2d
define the scope of the representa- virtually never suffice under this 172, 174 n.4 (11th Cir. 1988).
tion, whether it includes appellate new case law. Likewise, several 4
Salley v. City of St. Petersburg, 511
representation, and how appellate courts allowing plenary appeals So. 2d 975, 977 (Fla. 1987), receded from
fees are to be paid. While Arabia is have warned that counsel should on other grounds, United Services Auto.
Ass’n v. Phillips, 775 So. 2d 921, 922
a contingency fee case, the analysis use the proper procedure in the fu- (Fla. 2000). See also Sch. Bd. of Alachua
could potentially be applied to any ture.42 Thus, it is crucial to use the County v. Rhea, 661 So. 2d 331, 332
fee agreement providing a given proper procedure for review. The (Fla. 1st D.C.A. 1995).
payment for “court proceedings” or See Salley, 511 So. 2d at 977.
standard of review of a trial court 6
Florida Rule of Appellate Procedure
a similarly ambiguous term. order setting the amount of fees for 9.300(a).
an appeal is abuse of discretion.43 Homestead Ins. Co. v. Poole, Masters
Review of Appellate & Goldstein, 604 So. 2d 825, 827 (Fla.
4th D.C.A. 1991).
Attorneys’ Fee Awards Appellate Costs Recovery 8
See Spencer v. Barrow, 752 So. 2d
While the trial court has no juris- Counsel should be aware that 135, 138 (Fla. 2d D.C.A. 2000) (“We can
diction to award entitlement to ap- costs recovery is different than fee perceive of many reasons why a right
pellate attorneys’ fees, appellate recovery in appeals. A motion to tax to fees in the trial court might be waived
or not be sought, through either inad-
courts often remand the determina- appellate costs is filed in the trial vertence or change of attorneys, or
tion of the amount of fees to the trial court, within 30 days of issuance of change of attitude or positions of the
court.33 Review of the trial court’s mandate by the appellate court. 44 parties or otherwise, and such failure
order after remand is by motion for to seek fees at the trial level should not
The “prevailing party” for purposes preclude a right to fees at the appellate
review filed in the appellate court of awarding costs is “the party who level.”).
in the same appellate case, not by prevailed in the appellate proceed- 9
Lewis v. Lewis, 689 So. 2d 1271,
separate appeal.34 The motion must ing that was the subject of the mo- 1273 (Fla. 1st D.C.A. 1997).
Fees may be awarded only if there
be filed with the appellate court tion to tax costs, and not necessar- is a statutory or contractual basis for
within 30 days of rendition of the ily the party who ultimately the claim, or if the attorney’s services
34 THE FLORIDA BAR JOURNAL/APRIL 2002
create a common fund from which the Klinger, 550 So. 2d 1131 (Fla. 3d D.C.A. 1030 (Fla. 4th D.C.A. 1994) (on rehear-
fee can be paid. See Kittel v. Kittel, 210 1989) (holding that a party who pre- ing). Under the one-sided provision of
So. 2d 1, 3 (Fla.1967); Israel v. Lee, 470 vailed on appeal on only one count out §627.428, the insured “prevails” against
So. 2d 861, 862 (Fla. 2d D.C.A. 1985). of nine would be entitled to appellate an insurer if he recovers more than the
Florida Rule of Appellate Procedure attorneys’ fees only for the count on insurer’s last offer. Danis, 645 So. 2d
9.400(b); United Servs. Auto. Ass’n v. which he prevailed). 420; Percefull, 638 So. 2d 1026. Thus,
Phillips, 775 So. 2d 921 (Fla. 2000) (in- Under this test, the party who pre- there is no need to use the “significant
terpreting Rule 9.400 “to require that vailed on the “significant issues” in the issues” test.
a party seeking attorney’s fees in an ap- case is the prevailing party for purposes The Supreme Court’s disposition of
pellate court must provide substance of attorneys fee assessment. Courts pre- the petition in Aksomitas may support
and specify the particular contractual, viously applied the “net judgment” or an argument that the case should be
statutory, or other substantive basis for “net recovery” rule, under which a party limited. The party who lost the appeal
an award of fees on appeal. It is simply obtaining any recovery in its favor in Aksomitas sought review in the
insufficient for parties to only refer to would be deemed the prevailing party. Florida Supreme Court, which denied
rule 9.400 or to rely on another court’s It is well-established that an appel- review. There was no review sought of
order in support of a motion for late court may deny fees if it finds that the attorney’s fee ruling. In denying re-
attorney’s fees for services rendered in the work performed on an appeal is un- view, the Florida Supreme Court also
an appellate court.”). The court in necessary. “Unnecessary” appellate denied the petitioner’s motion for attor-
Phillips specifically receded from Salley work may include fees sought by an ap- neys’ fees and granted the respondent’s,
v. City of St. Petersburg, 511 So. 2d 975 pellant for an appeal which should contingent on the latter’s prevailing at
(Fla. 1987), to the extent that it sug- never have been taken and fees sought the end of the case. The Supreme Court
gested that appellate fees may be by an appellee who should have con- did not follow the Fourth DCA’s fees
awarded even if a party fails to comply fessed error. Aksomitas, 771 So. 2d at analysis since it denied the petitioner’s
with the substantive requirements of 544. See generally Florida Patient’s fees claim outright, regardless of
Florida Rule of Appellate Procedure Comp. Fund v. Rowe, 472 So. 2d 1145, whether the petitioner prevailed on the
9.400(b). 1150 (Fla.1985) (prevailing party attor- significant issues at the end of the case.
See Branch v. Charlotte County, 627 neys’ fees can be reduced for work which Cf. Sierra v. Sierra, 505 So. 2d 432
So. 2d 577 (Fla. 2d D.C.A. 1993); Dooley is unnecessary). (Fla. 1987).
v. Culver, 370 So. 2d 1154 (Fla. 4th For example, Moritz does not apply Visoly v. Sec. Pacific Credit Corp.,
D.C.A. 1978) (denying the motion be- to fees claims under FLA. STAT. §627.428. 768 So. 2d 482 (Fla. 3d D.C.A. 2000).
cause it did not state the grounds upon See Danis Indus. Corp. v. Ground Im- Treat v. State ex rel. Mitton, 121 Fla.
which the fees were claimed). provement Techniques, Inc., 645 So. 2d 509, 510-511, 163 So. 883, 883-884 (Fla.
Allstar Builders Corp. v. 420, 421 (Fla. 1994); Lumbermens Mut. 1935). See also Procacci Commercial
Zimmerman, 706 So. 2d 92 (Fla. 3d Cas. Co. v. Percefull, 638 So. 2d 1026, Realty, Inc. v. Dep’t of Health and Re-
D.C.A. 1998); Stringer v. Katzell, 695
So. 2d 369 (Fla. 4th D.C.A. 1997);
Publix Super Markets, Inc. v. Cheesbro
Roofing, Inc., 502 So. 2d 484, 488 (Fla.
5th D.C.A. 1987); Magee v. Bishop
Signs, Inc., 458 So. 2d 1174, 1175 (Fla.
4th D.C.A. 1984). Cf. Green Cos., Inc.
v. Kendall Racquetball Inv., Ltd., 658
So. 2d 1119, 1121 (Fla. 3d D.C.A. 1995)
(in a procedurally unusual case, allow-
ing a party that did not ultimately pre-
vail at trial to retain its award of ap-
pellate fees from a prior final order
See Mainlands Constr. Co., Inc. v.
Wen-Dic Constr. Co., Inc., 482 So. 2d
1369, 1371 (Fla. 1986).
Allstate Ins. Co. v. De La Fe, 647 So.
2d 965 (Fla. 3d D.C.A. 1994).
See Gen. Acc. Ins. Co. v. Packal, 512
So. 2d 344 (Fla. 4th D.C.A.1987); Israel
v. Lee, 470 So. 2d 861 (Fla. 2d D.C.A.
Phillip J. Padovano, Florida Appel-
late Practice §20.5 (2d ed. 1997). It is
sometimes difficult to determine which
party “prevailed” in the appeal, espe-
cially in cases where the appellate court
affirms on some issues and reverses on
others. See Hallenbeck v. Rangeline
Supply Corp., 697 So. 2d 876 (Fla. 4th
D.C.A. 1997) (party who prevailed on
appeal from portion of trial court order
was prevailing party on appeal); North
American Van Lines, Inc. v. Ferguson
Transp., Inc., 662 So. 2d 1275 (Fla. 4th
D.C.A. 1995) (appellant who reduced its
liability from $14.3 million to $1.3 mil-
lion by procuring reversal of punitive
damages award was prevailing party on
appeal); Zaremba Florida Co. v.
THE FLORIDA BAR JOURNAL/APRIL 2002 35
habilitative Servs., 690 So. 2d 603 (Fla. Courts must now interpret and apply trict has since explained: “Properly
1st D.C.A. 1997) (applying the same the text passed in 1999.” 788 So. 2d at read, Starcher and Magner recognize a
standard to administrative appeals); 1061. very limited exception to the command
Brahmbhatt v. Allstate Indem. Co., 655 See, e.g., Hartley v. Guetzloe, 712 So. of rule 9.400(c) that applies only when
So. 2d 1264, 1265 (Fla. 4th D.C.A. 1995) 2d 817, 818 (Fla. 5th D.C.A. 1998). the same parties are involved in a single
(awarding fees for frivolous appeal Glanzberg v. Kauffman, 771 So. 2d judgment after remand that encom-
where appellant took a position con- 60, 61 (Fla. 4th D.C.A. 2000); Deleuw, passes both an appellate fees issue and
trary to controlling Florida Supreme Cather & Co. v. Grogis, 664 So. 2d 989, another issue, and one party seeks re-
Court precedent). Section 57.105 states 989 (Fla. 4th D.C.A. 1995). view of both issues at the same time . .
that fees are to be assessed in equal Arabia, 789 So. 2d at 383. . the exception does not apply when
amounts against the losing party and Id. there are multiple and discretely differ-
their attorney. However, courts can See, e.g., Branch v. Charlotte ent judgments entered, and the appel-
make the assessment solely against the County, 627 So. 2d 577, 579 (Fla. 2d late fees issue involves a different party
attorney in appropriate cases. See D.C.A. 1993); Berry v. Scotty’s, Inc., 789 than the other issue determined on re-
Avemco Ins. Co. v. Tobin, 711 So. 2d So. 2d 1008 (Fla. 2d D.C.A. 1998). In mand.” U.S.B. Acquisition Co., Inc. v.
128, 130 (Fla. 4th D.C.A. 1998) (assess- federal appeals, the 11th Circuit typi- Stamm, 695 So. 2d 373 (Fla. 4th D.C.A.
ing §57.105 fees solely against the at- cally remands the case to the district 1997), quashed on other grounds, Bell
torneys where it found “the lawyers court to determine the amount of fees v. U.S.B. Acquisition Co., Inc., 734 So.
alone maintained the frivolous position to be assessed for the appeal. However, 2d 403 (Fla. 1999).
in the litigation, without the knowledge the court has awarded a sum certain See Browning v. New Hope South,
or acquiescence by their client”). where the movant’s attorney filed an af- 785 So. 2d 732 (Fla. 1st D.C.A. 2001);
See, e.g., State, Dep’t of Highway fidavit of amount and that amount was Magner v. Merrill Lynch Realty/MCK,
Safety and Motor Vehicles v. Salter, 710 not disputed by the opposing party. Inc., 585 So. 2d 1040 (Fla. 4th D.C.A.
So. 2d 1039, 1041 (Fla. 2d D.C.A. 1998); Taiyo Corp. v. Sheraton Savannah 1991).
Carnival Leisure Ind., Ltd. v. Holzman, Corp., 49 F.3d 1514, 1516 (11th Cir. See Browning v. New Hope South,
660 So. 2d 410, 413 (Fla. 4th D.C.A. 1995) (making the award “in the inter- 785 So. 2d 732 (Fla. 1st D.C.A. 2001).
1995); Carnival Leisure Ind., Ltd. v. est of judicial economy and to avoid fur- Gen. Acc. Ins. Co. v. Packal, 512 So.
Arviv, 655 So. 2d 177, 181 (Fla. 3d ther expenditures by the parties neces- 2d 344 (Fla. 4th D.C.A.1987); Starcher
D.C.A. 1995); Fairview Props., Inc. v. sitated by a remand”). v. Starcher, 430 So. 2d 991 (Fla. 4th
Pate Constr. Co., Inc., 638 So. 2d 998, See Florida Rule of Appellate Proce- D.C.A. 1983).
1000 (Fla. 4th D.C.A. 1994); Kahn f/ dure 9.400(c); Pellar v. Granger Asphalt Pellar v. Granger Asphalt Paving,
u/b/o Amica Mut. Ins. Co. v. Kahn, 630 Paving, Inc., 687 So. 2d 282, 284 (Fla. Inc., 687 So. 2d 282 (Fla. 1st D.C.A.
So. 2d 223, 224 (Fla. 3d D.C.A. 1994); 1st D.C.A. 1997); Sabina v. Dahlia 1997); G.H. Johnson Constr. Co. v.
Coral Springs Roofing Co., Inc. v. Corp., 678 So. 2d 822 (Fla. 2d D.C.A. A.P.G. Elec., Inc., 656 So. 2d 566 (Fla.
Campagna, 528 So. 2d 557, 558 (Fla. 1996); Dalia v. Alvarez, 605 So. 2d 1282 2d D.C.A. 1995).
4th DCA 1988); First v. Carver, 504 So. (Fla. 3d D.C.A. 1992). Florida Rule of Appellate Procedure
2d 50, 52 (Fla.2d D.C.A. 1987); Enoch Florida Rule of Appellate Procedure 9.400(a).
Assocs., Inc. v. Moult Invs., Ltd., 404 9.400(c). See Bell v. U.S.B. Acquisition Stringer v. Katzell, 695 So. 2d 369,
So. 2d 798, 799 (Fla. 3d D.C.A. 1981). Co., Inc., 734 So. 2d 403, 412-13 (Fla. 370 (Fla. 4th D.C.A. 1997) (quoting
There are a few reported decisions 1999) (time runs from “rendition” of Padovano, Florida Appellate Practice
awarding §57.105 fees to an appellant, trial court order and therefore no addi- §16.2 (1988)). See also Lucas v. Barnett
but it is not clear that the issue was tional time is permitted after mailing). Bank of Lee County, 732 So. 2d 405, 406
raised in those cases. See Rapid Credit See, e.g., Pellar v. Granger Asphalt (Fla. 2d D.C.A. 1999); Fleitman v.
Corp. v. Sunset Park Centre, Ltd., 566 Paving, Inc., 687 So. 2d 282 (Fla. 1st McPherson, 704 So. 2d 587, 590 (Fla.
So. 2d 810, 812 n.2 (Fla. 3d D.C.A. 1990) D.C.A. 1997); Gen. Accident Ins. Co. v. 1st D.C.A. 1997); Di Teodoro v. Lazy
(Schwartz, J., specially concurring) Packal, 512 So. 2d 344 (Fla. 4th D.C.A. Dolphin Dev. Co., 432 So. 2d 625, 626
(noting court’s award of fees to an ap- 1987). See generally Bell v. U.S.B. Ac- (Fla. 3d D.C.A. 1983); Swan v. Wisdom,
pellant where the appellee’s counsel’s quisition Co., Inc., 734 So. 2d 403 (Fla. 392 So. 2d 987, 987 (Fla. 5th D.C.A.
egregiously unethical conduct necessi- 1999). 1981).
tated the appeal); Insua v. Chantres, See Pellar, 687 So. 2d at 284;
665 So. 2d 288 (Fla. 3d D.C.A. 1995) Zaremba Florida Co. v. Klinger, 550 So.
(awarding fees to appellant under 2d 1131 (Fla. 3d D.C.A. 1989).
§57.105, then vacating the order on re- See G.H. Johnson Constr. Co. v.
hearing). A.P.G. Elec., Inc., 656 So. 2d 566 (Fla.
Forum, 788 So. 2d at 1062. 2d D.C.A. 1995).
Id. at 1063. See, e.g., Starcher v. Starcher, 430
Forum, 788 So. 2d at 1060-61. See So. 2d 991 (Fla. 4th D.C.A. 1983) (hold-
Ch. 99-225, §4, Laws of Fla. The court ing that trial court’s attorneys’ fees or-
held that the 1999 amendments der after remand could be considered Tracy Raffles Gunn is a share-
changed the statute “considerably,” and as a point on appeal because it was one holder in the Appellate Practice Group
explained: “No longer does the statute of several points arising out of single of Fowler White Boggs Banker, P.A., in
apply only to an entire action; it now judgment, but cautioning against the Tampa. She received her J.D., summa
applies to any claim or defense. No failure to follow Rule 9.400(c) when the cum laude, from Stetson University Col-
longer are awards of fees limited to “a sole point involved is appellate attor- lege of Law in 1993. Ms. Gunn is board
complete absence of a justiciable issue neys’ fees); Magner v. Merrill Lynch certified by The Florida Bar in appellate
of either law or fact raised by the los- Realty/MCK, Inc., 585 So. 2d 1040, practice. She is chair of the Amicus Cu-
ing party.” The operative standard is 1044 (Fla. 4th D.C.A. 1991) (holding “by riae Committee of the Florida Defense
now that the party and counsel “knew way of careful limitation” that a timely Lawyers Association and is a member of
or should have known” that any claim challenge to an attorneys’ fee award can the Florida Supreme Court Committee
or defense asserted was (a) not sup- be consolidated with a simultaneous on Standard Jury Instructions in Civil
ported by the facts or (b) not supported plenary appeal where strict compliance Cases.
by an application of “then-existing” law. with Rule 9.400(c) would “unnecessar- This column is submitted on behalf
Hence most of the old interpretations ily result in multiple actions”). See also of the Appellate Practice Section, Hala
of the statute as it was drafted before Underwood v. Elliott, 601 So. 2d 317 A. Sandridge, chair, and Jacqueline E.
1999 are no longer authoritative. (Fla. 1st D.C.A. 1992). The Fourth Dis- Shapiro, editor.
36 THE FLORIDA BAR JOURNAL/APRIL 2002