On December 19, 2012, the Fourth District Court of Appeal determined that a request for attorneys’ fees in an original writ proceeding must be included in a party’s petition, response or reply, or it will be considered untimely.
Advanced Chiropractic and Rehabilitation Center (ACRC) sued United Automobile Insurance Company (UAI) for personal injury protection benefits. The case settled for $4,128.00 and $1,980.00 in prejudgment interest. A dispute arose between the parties when ACRC moved for attorneys’ fees, which the county court ultimately granted. UAI appealed to the circuit court, arguing that the county court abused its discretion in finding that the motion for attorneys’ fees was timely. The circuit court held that the county court had abused its discretion and reversed, leading ACRC to file a second-tier certiorari petition at the Fourth District. Three days after the Fourth District granted the petition and issued a written decision, ACRC moved for appellate attorneys’ fees. The court denied the motion for appellate attorneys’ fees as untimely, because neither ACRC’s petition nor its reply sought attorneys’ fees.
In its decision, the court noted that no appellate rule sets forth a procedure for requesting attorneys’ fees in a Rule 9.100 (original) proceeding. Accordingly, it deferred to Stockman v. Downs, 573 So. 2d 835, 837 (Fla. 1991), holding that the “fundamental concern is one of notice” and therefore a claim of attorneys’ fees “must be pled.” The panel concluded that the phrase “must be pled” required that a request for fees be included in a “pleading,” such as a petition, response or reply, and could not be included in a motion made subsequent to such a “pleading.” Unfortunately, the decision does not address whether a separate motion filed contemporaneously with a reply (as is appropriate when seeking fees in connection with an appeal) would suffice. For that matter, the decision does not reconcile how including “notice” of the appellate fee request in a reply would afford the other party an opportunity to respond in opposition to the request. In contrast, in the context of an appeal, the opposing party would simply respond to the motion for fees in accordance with Fla. R. App. P. 9.300(a).
Chaired by Partner Edward G. Guedes, our Appellate Practice Group has a record of success pursuing and defending appeals of final judgments and verdicts, as well as non-final, interlocutory appeals and original writ proceedings on behalf of public and private sector clients throughout the State. Not only do we handle dozens of appellate proceedings generated each year by our Litigation Division, but we are frequently called upon to serve as appellate counsel for our peers and major corporations. Our collective experience includes handling some of the most significant constitutional and governmental law matters to come before the courts of Florida and the United States.
Author(s): Edward G. Guedes
