By Jacek Stramski

Last week the Supreme Court clarified the procedure available to a party who wishes to seek attorney’s fees in an original writs proceeding at the appellate level.

The decision, issued in Advanced Chiropractic and Rehabilitation Center Corp. v. United Automobile Insurance Co., (SC13-153), followed a finding by the 4th District Court of Appeal (DCA) that a motion for attorney’s fees filed by United Automobile Insurance Co. (UAIC) after the DCA granted a petition for certiorari was untimely because the request for attorney’s fees was made by motion after the petition was granted, and not in a pleading, which the 4th DCA concluded was only the petition, response, and reply in original writ proceedings under Rule 9.100, Fla. R. App. P. Advanced Chiropractic and Rehabilitation Center Corp. v. United Automobile Insurance Co., 103 So.3d 869, 871 (Fla. 4th DCA 2012), relying on Stockman v. Downs, 573 So.2d 835, 837 (Fla.1991), where the Supreme Court held that claims for attorney’s fees must satisfy the “fundamental concern” of notice, and that failure to plead entitlement to attorney’s fees would constitute a waiver of the claim.

The Court began its analysis by looking to rule 9.400(b), which provides a timeframe for filing a motion for attorney’s fees in appellate proceedings. The Court agreed with the 4th DCA that rule 9.400(b) is inapplicable to original writs proceedings, as the rule specifically provides that a “motion for attorneys’ fees may be served not later than the time for service of the reply brief…” whereas in original writs proceedings under rule 9.100, no reply brief is contemplated.

The Court, however, disagreed the 4th DCA’s reliance on Stockman to conclude that a claim for attorney’s fees in an original writs proceeding must be made in the “pleadings.” The Court pointed out that the holding in Stockman was limited to proceedings under the Florida Rules of Civil Procedure, and did not apply to matters under the rules of appellate procedure. The Court also noted that the “fundamental concern” of notice that was at issue in Stockman was not at issue in this case, as UAIC had sought attorney’s fees below in both county and circuit court.

The Court ultimately looked to rule 9.100 itself, and concluded that since neither it nor any precedent provides a procedure for requesting attorney’s fees in an original extraordinary writ proceeding, such requests would be controlled generally by rule 9.300, which governs appellate motions. That rule provides that “[u]nless otherwise prescribed by these rules, an application for an order or other relief available under these rules shall be made by filing a motion therefor.” Rule 9.300, Fla. R. App. P. Because no time limit for motions for attorney’s fees is specified in that rule, the Court ruled that any timely motion for attorney fees filed in an original writs proceeding could be considered. The Court also concluded that the motion filed by Advanced Chiropractic and Rehabilitation Center was timely under that standard, as it was filed six days after the DCA granted the petition for a writ of certiorari.

Attorney’s Fees in Extraordinary Writ Proceedings

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