Attorney’s Fees on Appeal: Part I – Preserving the Appellee’s Attorney Fee Award

Appellate Law Blog Post - 11.9.18After years of exhaustive litigation, you finally won your case. You obtained a judgment against the other side. You then filed a motion seeking to recover your attorney’s fees as the prevailing party pursuant to statute or contract at issue. What’s more, the trial court found you were entitled to recover your attorney’s fees as the prevailing party pursuant to a contract at issue or statute. You are ecstatic – the case is finally over and done, right? Not necessarily. Just as you are beginning the celebration, the losing party files and serves a timely notice of appeal of the substantive final judgment.  How can you make sure your client is entitled to fees for defending the appeal?

A separate motion for attorney’s fees must be filed in an appeal in order to recover attorney’s fees incurred in the appeal.  This is so even if the fee entitlement is established by statute or contract, even if you are proceeding under a fee entitlement pursuant to an offer of judgment, and even if the trial court has already declared that you are entitled to a fee award.

In addition to requiring a separate motion for appellate attorney’s fees, the Florida Rules of Appellate Procedure have strict rules for when and how to file a motion for appellate attorney’s fees. In trial courts, motions for attorney’s fees are usually filed after a court finds one side to be the prevailing party. But the procedure for appellate attorney’s fees is different. A motion for appellate attorney’s fees must be filed within the time for service of the reply brief.  While this timing requirement seems simple, it is not without potential pitfalls. For example, if the appellant files its reply brief before the deadline to do so, and the deadline is removed from the appellee’s counsel’s calendar, the appellee might miss the deadline to file a motion for attorney’s fees within the prescribed time.  Best practice is to file a fee motion before or with your principal brief.

Additionally, many litigants request the appellate court to award costs incurred in the appeal. No motion to tax costs needs to be filed in the appellate court, and such a request likely will be denied.  Instead, once the appellate court issues a decision, the prevailing party may request a cost award in the trial court.

Now let’s assume the appellate court affirms the trial court’s order or judgment and grants your motion for appellate attorney’s fees. You are ecstatic – now the case is finally over and done, right? No.  Assuming if the appellate court grants your motion for attorney’s fees incurred in the appeal, it will remand to the trial court to determine the amount of the attorney fee award. This may entail additional experts, additional discovery, additional hearings, and importantly, more time.

In conclusion, the Florida Rules of Appellate Procedure dictate the timing and procedure for obtaining attorney’s fees on appeal, and those requirements differ significantly from typical trial court procedure. So make sure you don’t start celebrating a trial victory too soon and unintentionally miss your opportunity to recover attorney’s fees incurred in your appeal!

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