The Fourth DCA recently issued an opinion on rehearing in which it reiterated a pretty basic, but nonetheless important point: If you didn’t raise an issue in your initial brief, you can’t raise it for the first time on a motion for rehearing before the appellate court. See Philip Morris USA, Inc. v. Naugle, No. 4D10-1607 (Dec. 12, 2012) [.pdf]. The lesson, of course, is that if it is important enough to argue it all, an issue must go in your initial brief. Remember, Rule 9.330 requires that a party seeking rehearing point out “with particularity the points that…the court has overlooked or misapprehended in its decision.” The court cannot misapprehend or overlook that which a party never argued to begin with!
The First District Court of Appeal recently explained the different standards for rehearing at the appellate level versus the trial level under the Florida rules, and it’s an important distinction for both trial and appellate practitioners to keep in mind. The take home lesson: Your last chance at issue preservation is a motion for rehearing, particularly for cases decided at early stages.
The case is Fitchner v. Lifesouth Community Blood Centers, Inc., ___ So.3d ___, No. 1D10–2019 (Fla. 1st DCA April 13, 2012) [.pdf]. Against the background of a complicated procedural history, the Court sets out a terrific discussion of the rehearing standards. The Fitchners sought to amend their complaint after an appellate remand dismissing their complaint, and the trial court denied their motion. With new counsel, they moved the trial court for rehearing, making a new and (as the trial court admitted) “meritorious” argument as to why the amended complaint should be allowed. The trial court nonetheless denied the motion because the argument was being raised for the first time, and had not been “overlooked” or “misapprehended.”
The First DCA ruled the Fitchners had not waived their argument. The Court started its analysis, as we all should, with the text of the rules, in this case a comparison of the text of the appellate rehearing rule, Rule 9.330(a), with the trial-level rule, Rule 1.530(a). The Appellate Rule requires that the movant:
“state with particularity the points of law or fact that, in the opinion of the movant, the court has overlooked or misapprehended in its decision, and shall not present issues not previously raised in the proceeding .”
The Civil Procedure rule, by contrast, states:
“[o]n a motion for rehearing of matters heard without a jury, including summary judgments, the court may open the judgment if one has been entered, take additional testimony, and enter a new judgment.”
Reading these rules side-by-side, the Court concluded:
“It is clear from a comparison of the text of these two rules that the standard to be applied in trial courts is much broader than the one that applies on appeal. Rule 1.530 is not limited to a mistake the court has made. To the contrary, rehearing may be granted in an appropriate case to prevent an injustice that would be caused by an error or omission by one of the lawyers.”
Trial practitioners should beware, however: Just because the trial court has the power to consider a newly raised issue on a motion for rehearing made pursuant to Rule 1.530, does not mean it is required to do so. It is still best to raise every issue in your original motion. But the trial court did have the power to consider the new argument raised, and as a result the new issue was preserved for appellate review. The Court went on to reverse the dismissal based upon the legal argument raised and rejected in the Fitchners’ motion for rehearing.
As an aside, the decision also contains helpful analysis of the law of the case doctrine. More on law of the case in a future post.
Everybody wants to get paid for their work, and all the better if the other side has to foot the bill for your winning appellate brief. But you can’t get an award of appellate attorney’s fees or costs in Florida state courts if you don’t follow the rules. One of the biggest rookie mistakes I see other attorneys make — and a flashing beacon that the briefwriter is a trial lawyer working his own appeal rather than someone who focuses on appellate work — is failing to file a timely motion for attorney’s fees. The second biggest mistake is filing an inadequate motion for attorney’s fees. And the third biggest mistake is failing to timely move for taxation of costs after winning an appeal. This post, while not exhaustive, is designed to help you avoid these pitfalls.
Timing is (Almost) Everything
Start, as always, by reading the rule. At this case, the rule is Florida Rule of Appellate Procedure 9.400(b). The rule states, in relevant part:
a motion for attorneys’ fees may be served not later than the time for service of the reply brief and shall state the grounds on which recovery is sought. The assessment of attorneys’ fees may be remanded to the lower tribunal.
Now here’s where it gets fun. Failure to comply with this required timing is sufficient justification to deny an award of appellate attorney’s fees. Salley v. City of St. Petersburg, 511 So.2d 975 (Fla. 1987). The Courts of Appeal routinely deny attorney’s fees motions that are untimely. See, e.g., Barrett v. Barrett, 951 So.2d 24, 24 (Fla. 5th DCA 2007)(denying motion for fees and noting, “If a motion for attorney’s fees is untimely, why file it?”).
In my last appeal, I was appellant, and I served my motion for attorney’s fees with the Reply. Appellee’s counsel realized he goofed and served me with a motion for attorney’s fees about a week later. You can guess what cases I cited in my opposition to his motion. I’d hate to be in his shoes and have to show my opposition to his client. Don’t let this one fall through the cracks.
The Rest is Content
A motion for appellate fees need not be elaborate, but there are some basic standards. The Florida Supreme Court requires that “a party seeking attorney’s fees in an appellate court must provide substance and specify the particular contractual, statutory, or other substantive basis for an award of fees on appeal.” United Services Auto. Ass’n v. Phillips, 775 So.2d 921, 322 (Fla. 2000). Mere citation to Rule 9.400 is inadequate. Id..
Be sure to hold the other side to these rules, too. Remember, you have ten days from the date of service of a motion to oppose it. See Fla. R. App. P. 9.300(a). If the motion is untimely or inadequate, make sure the Court knows about it.
The Amount Comes Later
When moving for appellate attorney’s fees, don’t bother spending the time to compile your bills and fees. That comes later, after you find out you’ve won. The appellate courts will usually remand to the trial court to determine the amount of fees to be awarded. When that time comes, you’ll need affidavits, including, likely, an affidavit from an expert to support the reasonableness of the fees. The intricacies of how to prove up reasonable attorney’s fees is definitely a post — and perhaps a treatise — unto itself, but I’ve covered the high points here before.
Don’t Forget Costs
Costs can add up, especially if you are the appellant and have paid for the preparation of the record on appeal. This due date is keyed off of the issuance of the mandate, and — this is key — the motion is actually presented to the trial court, not the appellate court:
Costs. Costs shall be taxed in favor of the prevailing party unless the court orders otherwise. Taxable costs shall include
(1) fees for filing and service of process;
(2) charges for preparation of the record;
(3) bond premiums; and
(4) other costs permitted by law.
Costs shall be taxed by the lower tribunal on motion served within 30 days after issuance of the mandate.
Fla. R. App. P. 9.400(a). What are “other costs permitted by law”? Good question. The Statewide Uniform Guidelines for Taxation of Costs in Civil Actions [.pdf] provide a good starting point for answering that question. Copying and computer aidied research fees are generally categorized as overhead generally and are not considered taxable costs, but copies of items filed with the court can, in some instances, be taxed.
Also, the “after issuance of the mandate” language can be tricky here. As far as I can tell, the courts of appeals don’t generally issue a mandate on extraordinary writs such as certiorari. On regular appeals, the mandate generally issues within 15 days of the decision. I like to calendar this one for 20 days after the opinion/decision so I don’t have to fight over the issue of issuance of the mandate. Better to be early than late!
Appealing the Award of Appellate Fees or Costs
Thankfully, if you are on the wrong end of an award of attorney’s fees or costs you don’t have to initiate a whole new appeal. Rather, the Courts of Appeal will review a trial court’s award of appellate fees or costs by motion:
(c) Review. Review of orders rendered by the lower tribunal under this rule shall be by motion filed in the court within 30 days of rendition.
This isn’t a model of clarity, but “the court” in this rule refers to the appellate court. The appellate courts do, in fact, regularly review awards of fees and costs pursuant to this rule. And since the awards are generally big ticket, it’s worth doing.
The take home lesson here? When deciding who should handle your appeal, ask your potential lawyer if she or he knows the rules for getting the other side to foot the bill. And if they don’t, go find someone who does. Otherwise, you may be leaving money on the table.
[Note]: Thanks to Natalia from FIU for pointing out a typo!