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Spring 2013
d&G Lawyer News

  • Be Careful When Seeking Attorneys' Fees In Extraordinary Writ Proceedings
  • By: David M. Caldevilla, Board Certified Appellate Lawyer

    In Advanced Chiropractic & Rehabilitation Center, Corp. v. United Automobile Insurance Co., 103 So.3d 869 (Fla. 4th DCA 2012), the Florida Fourth District Court of Appeal recently held that the prevailing party did not properly seek an award of attorneys' fees in an original proceeding for certiorari review. According to this decision, a claim for attorney's fees in original proceedings must be raised in the "pleadings" (i.e., the petition, response, or reply), instead of by separate motion. This decision came as a surprise to many lawyers.

    In Florida state court appellate proceedings, motions for attorneys' fees are governed by Florida Rule of Appellate Procedure 9.400(b). In pertinent part, that rule states, "A motion for attorneys' fees may be served not later than the time for service of the reply brief." The rule seems straight forward enough, but there is more than meets the eye! In Florida, our state appellate courts have jurisdiction over "appeals" and over "original proceedings" for extraordinary writs (such as certiorari, prohibition, mandamus, habeas corpus, and quo warranto). A "reply brief" may be filed in an appeal, but technically, "briefs" are not filed in original proceedings for extraordinary writs. Compare, Fla.R.App.P. 9.100(b) (authorizing "a reply" in original proceedings) and 9.210(a) (authorizing "a reply brief" in appeals).

    On its face, Rule 9.400(b) says that motions for appellate attorneys' fees may be served no later than the time for serving the reply "brief." Because "briefs" are not filed in original proceedings, this language does not appear to contemplate that a motion for attorneys' fees can be filed in an original proceeding. In the Advanced Chiropractic case, the motion for attorneys' fees was filed long after the pleadings were filed. The Fourth District held that the motion was untimely and that the claim should have been raised in the pleadings themselves, instead of by motion.

    Again, this result has surprised many lawyers. Why? For purposes of determining entitlement to appellate attorneys' fees, there does not appear to be any legitimate reason to distinguish between appeals or petitions for extraordinary writs. This is because "proceedings by mandamus, quo warranto, habeas corpus, certiorari and prohibition are original in their nature, though they may be invoked to perform functions that are appellate in their nature." Sutton v. State, 975 So.2d 1073, 1076 (Fla. 2008), quoting State ex rel. Associated Utils. Corp. v. Chillingworth, 132 Fla. 587, 181 So. 346, 348 (1938). See also, DeGroot v. Sheffield, 95 So.2d 912, 915 (Fla. 1957) (certiorari is in the nature of an appellate process, as it is a method to obtain review rather than a collateral assault); Parker Family Trust I v. City of Jacksonville, 804 So.2d 493, 498 (Fla. 1st DCA 2001) (circuit court's certiorari review of local government's zoning decision was "appellate in nature"); Pyszka, Kessler, Massey, Weldon, Catri, Holton & Douberley, P.A. v. Mullin, 602 So.2d 956, 957-958 (Fla. 3d DCA 1992) (because certiorari petition was filed to obtain review of an order, and it is clear that certiorari is in the nature of an appellate process, wife is entitled to attorney fees in such review proceedings); City of Kissimmee v. Grice, 669 So.2d 307, 308-309 (Fla. 5th DCA 1996) ("It is clear that certiorari is in the nature of an appellate process. It is a method of obtaining review, as contrasted to a collateral assault.").

    Despite the foregoing, the Fourth District's decision in Advanced Chiropractic has now established a different process for seeking appellate attorneys' fees than the motion contemplated by Rule 9.400(b). Similarly, at least one other Florida appellate court has expressed doubt that a statute authorizing an award of attorneys' fees in an appeal could be construed as also authorizing an award of attorneys' fees in a certiorari proceeding. See, Grider-Garcia v. State Farm Mut. Auto., 14 So.3d 1120, 1122 (Fla. 5th DCA 2009) ("it is doubtful that an insured would even be entitled to fees for a certiorari proceeding in which it prevails based on the interpretation of the statute that appellate courts are authorized to award fees only for an appeal that the insured wins"). While the Grider court stated this in dicta and was construing a statute instead of Rule 9.400(b), the decision raises concerns.

    The Florida Appellate Court Rules Committee has recognized the problem and is recommending that the Florida Supreme Court should amend Rule 9.400(b) as follows:

    (b) Attorneys’ Fees. With the exception of motions filed pursuant to rule 9.410(b), a motion for attorneys’ fees shall state the grounds on which recovery is sought and shall be served not later than: (1) in appeals, the time for service of the reply brief or (2) in original proceedings, the time for service of the petitioner’s reply to the response to the petition. The assessment of attorneys’ fees may be remanded to the lower tribunal. If attorneys’ fees are assessed by the court, the lower tribunal may enforce the payment.

    The rule amendment process is slow. Until the proposed amendment to Rule 9.400(b) is ultimately considered and approved by the Florida Supreme Court, lawyers seeking attorneys' fee awards in an original proceeding should consider using a "belt-and-suspenders" approach by: (1) pleading the claim in their petition, answer or reply in accordance with Advance Chiropractic, and (2) filing a motion under Rule 9.400(b) by the time for service of the reply.

    de la Parte & Gilbert, P.A. has significant experience in handling appeals and original proceedings for extraordinary writs. If you have any questions or need assistance, please contact David Caldevilla at (813) 229-2775.
    101 E. Kennedy Blvd., Suite 2000 | Tampa, FL 33602 | 813-229-2775 Fax: 813-229-2712
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