May Appellate Attorney Fees Be Awarded To The Party That Lost On Appeal?

You have just won your appeal. You are ecstatic. But wait, what is this?  You received an order from the appellate court ordering you to pay the other side’s appellate fees, even though they lost. You say to yourself, “but they lost.”

In the Fourth District Court of Appeal, winning or losing the appeal generally does not matter. At least, it does not generally matter when the basis for appellate attorney fees, is a contractual provision, which awards fees to the prevailing party in the litigation. According to the Fourth District Court of Appeal, a party who ultimately prevails in the litigation can be awarded appellate attorney fees even if they lost on appeal. See Aksomitas v. Maharaj, 771 So. 2d 541 (Fla. 4th DCA 2000).

However, if you are in the Second or Fifth District Court of Appeal, you would probably not have to pay such fees. See Brevard Orthopaedic, Spine & Pain Clinics, Inc. v. Health First Med. Mgmt., 130 So. 3d 274 (Fla. 5th DCA 2014); E. Coast Metal Decks, Inc. v. Boran Craig Barber Engel Constr., Co., 114 So. 3d 311 (2d DCA 2013); Dienstl v. Castle Builders U.S., Inc., 49 So. 3d 1272 (Fla. 2d DCA 2010). For instance, in Brevard Orthopaedic, Spine & Pain Clinics, Inc. v. Health First Med. Mgmt, the contract allowed attorney’s fees to the prevailing party. Brevard Orthopaedic, Spine & Pain Clinics, Inc. v. Health First Med. Mgmt., 130 So. 3d 274 (Fla. 5th DCA 2014). The Petitioner filed a petition for writ of certiorari, which was denied and both parties moved for appellate attorney fees. Id. The Fifth District granted “Respondent’s motion for fees provided Respondent is found by the trial court to be the prevailing party under the pertinent provision of the agreements at the conclusion of the underlying lawsuit.” Id. The Fifth District Court of Appeal denied the motion for appellate attorney fees to the Petitioner because Petitioner did not prevail in the certiorari proceedings. Id.

For example, in E. Coast Metal Decks, Inc. v. Boran Craig Barber Engel Constr., Co., “both parties moved for prevailing party appellate attorneys’ fees pursuant to the contract.” E. Coast Metal Decks, Inc. v. Boran Craig Barber Engel Constr., Co., 114 So. 3d 311 (2d DCA 2013). The Appellant did not prevail on appeal and as a result, the Second District denied Appellant’s motion for appellate attorney fees. Id. The Second District held that “we continue to adhere to the traditional approach of conditionally awarding prevailing party appellate attorneys’ fees only to the party who prevails on appeal.” Id.

Although, if the basis for appellate attorney is Fla. Stat. 627.428 then whether or not you win on appeal matters. The Florida Supreme Court has held that if the basis for appellate attorney fees is Fla. Stat. 627.428, an appellate court may not award attorney’s fees to an insured unless the insured prevails on appeal. See Brass & Singer, P.A. v. United Auto. Ins. Co., 944 So. 2d 252 (Fla. 2006). This is because the plain language of Section 627.428 states that the insured must prevail in the appeal to receive appellate attorney fees. See Fla. Stat. 627.428 (“..in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or degree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney…”).

Moreover, the Florida Supreme Court’s ruling appears to be limited to awarding attorney fees in insurance disputes under section 627.428 and thus should not be extended to attorney fees based on a contract. See E. Coast Metal Decks, Inc. v. Boran Craig Barber Engel Constr. Co., 114 So. 3d 311 (Fla. 2d DCA 2013) (Recognized that Brass & Singer was limited to the proper interpretation of section 627, 428(1), which contained specific language regarding when fees may be awarded to an insured or beneficiary in an insurance dispute.).  It is also recognized by the Fifth District that recovery of appellate fees under Fla. Stat. 627.428 is only permitted for appeals and thus an insured would not be entitled to fees for a certiorari proceeding even if the insured prevailed.  See Grider-Garcia v. State Farm Mut. Auto., Etc., 14 So. 3d 1120 (Fla. 5th DCA 2009).

FAILURE TO RESPOND TO REQUEST FOR ADMISSIONS

Plaintiff has failed to timely respond to the Request for Admissions. This does not always preclude the plaintiff from relief. It has been recognized that it is “reversible error to involuntarily dismiss an action or grant summary judgment based solely on the failure to timely respond to a request for admissions where the pleadings and/or the record evidence contradicts the technical admissions and no prejudice has been demonstrated.” See HSBC Bank USA, etc. v. Fulbio S. Parodi, 41 Fla. L. Weekly D1093a (Fla. 3d DCA May 4, 2016). For instance, in HSBC Bank USA, the Third District held that “the trial court erred by involuntarily dismissing HSBC’s foreclosure action based solely on its technical admissions because these technical admissions were contradicted by HSBC’s pleadings, discovery responses, and/or trial evidence; Parodi failed to argue or demonstrate prejudice; and the trial court failed to find prejudice.” As a result, the Third District reversed the final judgment involuntarily dismissing HSBC’s foreclosure action. Id.

Child Support & Outdated Financial Information

When you are seeking an award of child support or a modification of child support make sure that the court is relying on updated financial information.  This is because, if the court is relying on outdated financials to calculate child support, your award of child support may be reversed.  For instance, recently In Santos v. Santos, the parties filed petitions to modify the child support plan.  In modifying the child support, the trial court relied on financial affidavits from the original dissolution instead of the updated affidavits filed in connection with the modification petitions.  See Santos v. Santos, 40 Fla. L. Weekly D1057a (Fla. 2d DCA, May 6, 2015).  As a result, the trial court relied on outdated financial affidavits to calculate child support.  Id. The Second District recognized that the use of this outdated financial information in calculating child support was reversible error and thus reversed the final judgment with respect to the child support modification. Id.

Notable Changes to the Florida Rules of Appellate Procedure – Effective 2015

Anyone handling an appeal or original proceeding before the Florida appellate courts should always keep up to date on the changes to the Florida Rules of Appellate Procedure.  Accordingly, many changes were made to the Florida Rules of Appellate Procedure, which became effective this year.   Highlighted below are a few of those key changes.

Under Florida Rules of Appellate Procedure 9.020(i), the filing of a notice appeal no longer causes one’s timely and authorized post-judgment motions to be deemed abandoned. See In re Amendments to Florida Rules of Appellate Procedure, 39 Fla. L. Weekly S665 (Fla. Nov. 6, 2014).  The amended rule rather allows the appeal to be held in abeyance until said motion is disposed of.  See Id.; Fla. R. App. P. 9.020(i).   Florida Rules of Appellate Procedure 9.110(l), which dismisses premature appeals, was amended in light of the amendment to Rule 9.020(i).  As a result, the amendment adds language to ensure that the exception provided in rule 9.020(i) is recognized.  See Fla. R. App. P. 9.110(l).

Moreover, Florida Rules of Appellate Procedure 9.320, which covers oral arguments was amended.  In re Amendments to Florida rules of Appellate Procedure, 39 Fla. L. Weeky S775 (Fla. Nov. 6, 2014).  First of all, it extended the time to request an oral argument in an appeal by 10 days. See Id; Fla. R. App. P. 9.310(a).  A request must be served “not later than 10 days after the last brief is due to be served.” Fla. R. App. P. 9.320(a).

Second of all, it clarified the timeline for requesting an oral argument in original proceedings.  The prior rule only specified the timeline to request such when the proceeding involved briefs. See In re Amendments to Florida rules of Appellate Procedure, 39 Fla. L. Weeky S775 (Fla. Nov. 6, 2014).  Since briefs are not filed in original proceedings, it was unclear when such was due. The amendment now makes it clear that such a request must be made “not later than 10 days after the reply is due to be served.” Fla. R. App. P. 9.320(b).

Furthermore, Florida Rules of Appellate Procedure 9.350 was amended to clarify that the filing of a stipulation or notice of dismissal does not itself dismiss the cause.  See re Amendments to Florida rules of Appellate Procedure, 39 Fla. L. Weeky S775 (Fla. Nov 6, 2014).  Rather the matter is automatically stayed until the court determines whether to recognize the dismissal or not. See Fla. R. App. P. 9.350(d).

In addition, Florida Rules of Appellate Procedure 9.400 amendment with regards to attorney fees in original proceedings clarifies when such is due.  The prior rule only specified the timeline to file such when the proceeding involved reply briefs.  Since original proceedings did not include reply briefs, it was unclear whether rule 9.400 governed such or if it did not then when such motions for attorney fees were due.

In May 2014, the Florida Supreme Court in Advanced Chiropractic and Rehabilitation Center, Corp. v. United Automobile Ins. Co., 140 So. 3d 529 (Fla. 2014) held that rule 9.300 and not rule 9.400 governs requests for attorney fees in original proceedings.  The Florida Supreme Court stated that requests for attorney fees must be timely to provide the relief sought, but did not specify the exact time period such should be filed or served. See Id.  The Florida Supreme Court by amending this rule, now specifies the time period and clarifies that this rule governs such.  See Fla. R. App. P. 9.400(b)(2).  It clearly states that a motion for attorney fees in original proceedings shall be served no later than “the time for service of petitioner’s reply to the response to the petition.” Fla. R. App. P. 9.400(b)(2).

In addition, it is important to recognize that the timeline to serve a motion for costs under Florida Rules of Appellate Procedure 9.400 has changed.   See In re Amendments to Florida rules of Appellate Procedure, 39 Fla. L. Weeky S775 (Fla. Nov 6, 2014).  Generally,  it is no longer dependent on when the mandate was issued. See In re Amendments to Florida rules of Appellate Procedure, 39 Fla. L. Weeky S775 (Fla. Nov. 6, 2014); Fla. R. App. P. 9.400(a).  It now depends on when the appellate court’s order was rendered. Id.  A party no longer has within 30 days after issuance of the mandate, but rather has no later than 45 days after rendition of the appellate court’s order to serve the motion for costs. See Id.

 

Am I Entitled To A Belated Appeal In A Civil Matter?

Your time to file your notice of appeal has run out.  Are you entitled to a belated appeal? Generally, in a civil proceeding, the appellate court lacks jurisdiction to grant you a belated appeal.  See Sharpe v. Stanley, 136 So. 3d 788 (Fla. 1st DCA 2014); Mekertin v. Winn Dixie Stores, Inc., 869 So. 2d 1286 (Fla. 4th DCA 2004).

But you had no timely notice of the entry of the order.  Does that matter? The fact that a party did not have timely notice of the entry of the order may not extend the jurisdictional time limit for appeal.  See Snelson v. Snelson, 440 So. 2d 477 (Fla. 5th DCA 1983); Sharpe v. Stanley, 136 So. 3d 788 (Fla. 1st DCA 2014).  In other words, the appellate court may be precluded from granting you a belated appeal.

However, there may be another way.  You may be able to file a Florida Rules of Civil Procedure Rule 1.540(b) motion in the lower court arguing that the order should be set aside due to lack of notice and request that a new order be entered so that the right of appeal is preserved.  See Diamond Drywall Systems, Inc. v. Mashan Contractors, Inc., 943 So. 2d 267 (Fla. 3d DCA 2006); Snelson v. Snelson, 440 So. 2d 477 (Fla. 5th DCA 1983); Woldarsky v. Woldarsky, 243 So. 2d 629 (Fla. 1st DCA 1971).

But what if you had timely notice, however, your attorney failed to timely file the notice of appeal.  Does that matter?  If this is a termination of parental rights matter, then yes it does.  In Interest of E.H., the Florida Supreme Court held that in a case involving termination of parental rights, parents are entitled to belated appeals based on ineffective assistance of counsel when their attorneys fail to timely file the notices of appeal. See In Interest of E.H., 609 So. 2d 1289 (Fla. 1992). The Florida Supreme Court further found that the proper procedural vehicle for seeking the appeal in such a case was by filing the petition for writ of habeas corpus with the trial court. Id.

I Have Filed the Notice of Appeal – What Is The Next Step?

You have filed your notice of appeal of the final order in this civil proceeding with the clerk of the court.  What should you do next?

Directions to Clerk

You have 10 days from the date of filing the notice of appeal to file directions to the clerk.  Should you file such?  It depends.  The clerk will automatically prepare a record on appeal that includes all the documents listed in Florida Rules of Appellate Procedure Rule 9.200(a)(1).   Fla. R. App. P. 9.200(a)(1) provides:

Except as otherwise designated by the parties, the record shall consist of the original documents, all exhibits that are not physical evidence, and any transcript(s) of proceedings filed in the lower tribunal, except summonses, praecipes, subpoenas, returns, notices of hearing or of taking deposition, depositions, and other discovery. In criminal cases, when any exhibit, including physical evidence, is to be included in the record, the clerk of the lower tribunal shall not, unless ordered by the court, transmit the original and, if capable of reproduction, shall transmit a copy, including but not limited to copies of any tapes, CDs, DVDs, or similar electronically recorded evidence. The record shall also include a progress docket.

You will not need to file directions to get such documents included in the record.

However, if you want to include something in the record that is not automatically included under Fla. R. App. P. 9.200(a)(1) then you should file such directions.  This does not mean you can include whatever you want.  Rather it means you can include those items that are automatically omitted.  For instance, notices of hearings, depositions, other discovery, etc. are not included in the record. See Fla. R. App. P. 9.200(a)(1).  As a result, if you want them included in the record then you have to file directions to the clerk.   You should also file such directions if you want to exclude items from the record.  In addition, these directions should be substantially in the form prescribed by Florida Rules of Appellate Procedure Rule 9.900(g).

You should also remember that the clerk of court is generally not preparing the record for free.  You will generally be billed for this service.  Thus, if you chose not to exclude items or fail to do such then you will probably have to pay more to the clerk of court then if you had excluded the unnecessary documents.  Although, sometimes you are not sure what is necessary or not until your brief is complete and thus, it may be wise not to exclude.  The choice is yours.

Statement of Judicial Acts

Also, if you exclude items from the record then you will be required to file with the lower court clerk a statement of judicial acts to be reviewed. See Fla. R. App. P. 9.200(a)(3).   The purpose of this statement is to inform the opposing party of the issues in order to allow that party the opportunity to decide whether additional portions of the record will be needed.  See Central Florida Wetlands Soc. v. Firstate Financial, 604 So. 2d 557 (Fla. 5th DCA 1992).

Designation to Court Reporter

In addition, if you want to include transcripts in the record that have not yet been transcribed then you need to file a designation to court reporter.  You have 10 days from the date of filing the notice of appeal to file such a designation to the court reporter.  See Fla. R. App. P. 9. 200(b)(1).  This is where you designate which portions of the proceedings not on file that you want transcribed and included in the record.   This designation should be substantially in the form prescribed by Florida Rules of Appellate Procedure Rule 9.900(h).

New Amendments to Florida Rules of Appellate Procedure 9.210

It has been a longstanding practice of the Florida Supreme Court to allow appellate briefs filed in cases relating to imposition of death penalty to exceed the standard page limits.  See In Re: Amendments to Florida Rules of Appellate Procedure 9.210, 40 Fla. L. Weekly S135a (Fla. March 12, 2015).  This practice, however, has been implemented on a case by case basis.  Id.  The Florida Supreme Court today has amended Fla. R. App. P. 9.210 and reduced its practice to code. Id.

It is now set forth in the Florida Rules of Appellate Procedure that longer appellate briefs in cases relating to imposition of the death penalty are permitted. Id.  The Florida Supreme Court new subdivision (a)(6) specifically states:

(6) In an appeal from a judgment of conviction imposing a sentence of death or in an appeal from an order ruling on, after an evidentiary hearing, an initial postconviction motion filed under Florida Rule of Criminal Procedure 3.851, the initial and answer briefs shall not exceed 100 pages in length, provided that if a cross-appeal has been filed, the answer brief/initial brief on cross-appeal shall not exceed 150 pages. Reply briefs shall not exceed 35 pages in length, provided that if a cross-appeal has been filed, the reply brief shall not exceed 100 pages, not more than 35 of which shall be devoted to argument replying to the answer portion of the appellee/cross-appellant’s brief. Cross-reply briefs shall not exceed 35 pages. In an appeal from an order summarily denying an initial postconviction motion filed under Florida Rule of Criminal Procedure 3.851, ruling on a successive postconviction motion filed under Florida Rule of Criminal Procedure 3.851, finding that a defendant is intellectually disabled as a bar to execution under Florida Rule of Criminal Procedure 3.203, or ruling on a motion for postconviction DNA testing filed under Florida Rule of Criminal Procedure 3.853, the initial and answer briefs shall not exceed 75 pages in length. Reply briefs shall not exceed 25 pages in length. The tables of contents and citations, the certificates of service and compliance, and the signature block for the brief’s author, shall be excluded from the computation. Longer briefs may be permitted by the court.

See In Re: Amendments to Florida Rules of Appellate Procedure 9.210, 40 Fla. L. Weekly S135a (Fla. March 12, 2015).

You Are Denied Your Motion to Intervene – When Should You Appeal?

According to the Third District Court of Appeal, a party who is not named in the action and whose motion to intervene is denied do not have the right to appeal the final judgment . See Quinones v. Southeastern Investment Group Corp., 39 Fla. L. Weekly D909a (Fla. 3d DCA 2014).  Rather, the order denying the motion to intervene is considered the final determination of the proceedings with regards to that party. Id.  As a result, that party has the right to appeal the order denying the motion to intervene within 30 days of rendition of that order.  Id.  Waiting until rendition of the final judgment in that case will result in your appeal being dismissed due to lack of standing. Id.

An Attorney’s Unsworn Statements Of Fact Are Not Evidence

A key point every attorney should remember is that an attorney’s unsworn statements of fact do not establish a fact.  See Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423 So. 2d 1015 (Fla. 4th DCA 1982); Arnold v. Arnold, 889 So. 2d 215 (Fla. 2d DCA 2004); H.K. Development, LLC v. Greer, 32 So. 3d 178 n 4 (Fla. 1st DCA 2010).  It is not evidence. See Smith v. Smith, 64 So. 3d 169 (Fla. 4th DCA 2011)(“As we have explained, we reject the use of unsworn assertions made by attorneys as evidence.”).  A trial court “cannot rely upon these unsworn statements of fact as the basis for the trial court’s factual determinations… [ and the appellate court] cannot so consider them on review of the record.” See Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423 So. 2d 1015 (Fla. 4th DCA 1982).

For instance, in Brown v. School Bd. of Palm Beach County, 855 So. 2d 1267 (Fla. 4th DCA 2003), the trial court erred by relying on the unsworn statements of counsel in makings its decision and thus, the appellate court reversed the trial court’s decision and remanded for further proceedings.  In order to establish a fact, the attorney should provide sworn testimony through a witness or a stipulation to which his opponent agrees.  See Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423 So. 2d 1015 (Fla. 4th DCA 1982); Brown, 855 So. 2d at 1269-1270.

Filing the Notice of Appeal – Criminal Cases

The defendant has been found guilty of a crime.  A written sentencing order has been filed with the clerk of the court.  A notice of appeal has not yet been filed.  The countdown begins.  A defendant has 30 days from the date when the signed written order imposing sentence is filed with the clerk of the lower court to file a notice of appeal.  See Fla. R. App. P. 9.140(b)(3); Fla. R. App. P. 9.020(i).

This 30 day countdown can be put on hold if any of the motions listed in Fla. R. App. P. 9.020(i) are authorized and timely filed with the court.   For instance, if an authorized motion to correct a sentencing error (Rule 3.800(b) motion) is timely filed with the court, the time for filing an appeal begins to run from the date of filing a signed order disposing of that motion. See Fla. R. App. P. 9.020(i).

If the clock has begun to run and the defendant has expressed a desire to his/her trial counsel to take an appeal, then defendant’s trial counsel has an obligation to file a timely notice of appeal with the clerk of the lower court, even if the defendant will be represented on appeal by a different attorney. See Fla. R. App. P. 9.140(d)(1). The notice of appeal must bear a caption, which contains the name of the lower court, the name and designation of at least one party on each side, and the case number in the lower court.  See Fla. R. App. P. 9.110(d).  The notice of appeal must state “the name of the court to which the appeal is taken, the date of rendition, and the nature of the order to be reviewed” on appeal. Fla. R. App. P. 9110(d).  An example of a notice of appeal is included in Fla. R. App. P. 9.900(a).

A copy of the notice of appeal must also be served on the attorney general, as well as, the state attorney handling the case at the trial level.  Fla. R. App. P. 9.140(b)(3). The attorney general’s office ordinarily represents the state in all criminal appeals.  If a notice of appeal is untimely then the appellate court does not have jurisdiction to hear the appeal. See State ex rel. Cantera v. District Court of Appeal, Third Dist., 555 So. 2d 360 (Fla. 1990).  In a criminal case, however, a defendant may be entitled to a belated appeal.  See Fla. R. App. P. 9.141(c).