Florida Supreme Court Approves Alternative Fee Recovery

The Florida Supreme Court last week resolved a circuit split between the Second and Fourth District Courts of Appeal and held that alternative fee recovery clauses in attorney engagement contracts are permissible and enforceable. What is an alternative fee recovery clause and why is it important to lawyers and clients? An alternative fee recovery clause, in essence, allows the court to award attorneys fees for the true value of the work performed, even if the client actually paid a discount rate. This allows lawyers to take cases their clients might not otherwise be able to afford, with the promise of a market rate fee award at the end of the litigation. As explained by the Court:

This clause generally provides for an attorney’s fee of the greater of either (i) a specified fee if the fee is paid by the client, or (ii) a court-awarded reasonable fee if the fee is paid by a third-party pursuant to a fee-shifting provision.

First Baptist Church of Cape Coral, Florida, Inc. v. Compass Const., Inc., __ So.3d ___, No. SC11-1278, 2013 WL 2349380 (Fla. 2013) [.pdf].

The Court upheld the billing arrangement even though the issue arrose in the context of an indemnification action (which was the reason for the dissent of Justice Lewis). The Court noted that the balancing act required by the lodestar analysis ensures that the resulting fee award is reasonable and not excessive.

The case is important because there is a line of fee award cases that hold that the recovery is limited to a reasonable fee or the amount actually paid by the client, whichever is greater. But First Baptist makes clear that the analysis is more nuanced — it’s limited not to what the client paid, but what the client agreed the fee would be. If the client agrees in advance that the fee is the greater of two calculations, the Court should conduct the calculations and award the greater of them, enforcing the parties’ contract.

That makes this case a must-read for any attorney considering having such a clause in his or her engagement contract.

Clarification Granted

As I previously reported, there was a motion for clarification filed in the Service Experts v. Northside case. It didn’t actually have to do with the jurisdiction issue. Rather, it focused on a sentence in the opinion that seemed like throwaway dicta to the court, but made a big difference to our client on remand. Today, the court granted the motion in part, and struck the offending sentence from its opinion. [.pdf]

This just goes to show that even though motions for clarification under Florida Rule of Appellate Procedure 9.330 should not be undertaken lightly, a narrowly tailored and focused motion can get traction.

Attorney’s Fees and Costs in Florida Appeals: A Primer

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 15 days from the date of service of a motion to oppose it. See Fla. R. App. P. 9.300(a) [Note:  The time was changed from 10 to 15 days in 2019]. 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 rendition of the appellate court’s order 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 no later than 45 days after rendition of the court’s order.

Fla. R. App. P. 9.400(a). [Note:  Updated to reflect rule changes to clear of the confusion over keying this deadline off of the issuance of the mandate!] 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 aided 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. We like to calendar this one for 30 days after rendition of the decision just to get it on file early. Better to be early than late!  [Note:  Updated 2019 to reflect rule changes to clear of the confusion over keying this deadline off of the issuance of the mandate!]

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 and to R.J. Pasternack for pointing out this older article still cited to a prior version of the rules.  This post was updated 4/23/2019 to reflect the current rules.