Fees on Fees Rejected by Third District

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Two new decisions from Florida’s Third District Court of Appeal make clear that parties should generally not assume they will be awarded attorney’s fees the time spent litigating the amount of attorney’s fees, even if they have a statutory or contractual basis for an award of attorney’s fees generally.

In Diaz v. Kasinsky, No. 3D19-1188 (Fla. 3d DCA Aug. 12, 2020), the Court held that a trial court did not abuse its discretion in declining to award fees on fees in an situation where the trial court had otherwise awarded attorney’s fees as an inherent sanction under the Florida Supreme Court’s decision in Moakley v. Smallwood, 826 So.2d 221 (Fla. 2002). Relying on Moakley and the general rule that shifting attorney’s fees to the other side is against the “American Rule” that each party bear its own fees and costsm, the Court explained that the power to shift fees must be construed narrowly, and held that “Moakley does not provide automatic entitlement to additional attorneys’ fees incurred in securing an underlying sanctions award.” Applying this test, the court find the trial court had acted within its discretion in denying fees on fees.

The Diaz court cites the court’s recent decision in Silver Law Group, P.A. v. Bates, No. 3D19-933, 2020 WL4495452 (Fla. 3d DCA Aug. 5, 2020) as standing for the proposition that Section 57.105, Fla Stat. does not provide a basis for an award of fees for attorneys’ time incurred litigating the amount of fees. The Silver decision does not discuss that case’s facts in detail, but notes that the rule against awarding fees on fees is not new: it reverses “the portion of the award that represents fees incurred for litigating the amount of fees.” based on a citation to a 25 year old case, Eisman v. Ross, 664 So. 2d 1128, 1129 (Fla. 3d DCA 1995).

Hurricane Dorian approaching Florida

Florida Supreme Court Hurricane Dorian Orders

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Hurricane Dorian approaching Florida

National Oceanic and Atmospheric Administration (NOAA) image of Hurricane Dorian taken Sunday, Sept. 1, 2019, at 17:00 UTC.

Last week, we explained the deadline issues surrounding a hurricane such as Dorian, which bore down on Florida, and then swerved away and let us be. But the forecast certainly disrupted the courts, attorneys, and litigants, as most of the state got busy preparing for the worst (and hit Florida’s economy even though it didn’t actually hit the state).

On Wednesday, Thursday and Friday, as Dorian aimed away from Florida, the Florida Supreme Court issued several orders retroactively extending deadlines. For the whole list of trial court counties whose deadlines were affected, check out the Florida Supreme Court’s page linking to Emergency Request to Extend Time Periods Under All Florida Rules (including Hurricane Dorian orders). But here’s the summary for the appellate courts:

Second District: AOSC19-50 (Sept. 5, 2019)[.pdf] extends time limits “from the close of business on Friday, August 30, 2019 until the close of business on Wednesday September 4, 2019.”

Third District: AOSC19-44 (Sept. 4, 2019) [.pdf] also extends time limits “from the close of business on Friday, August 30, 2019 until the close of business on Wednesday September 4, 2019.”

Fourth District AOSC19-49 (Sept. 5, 2019) [.pdf] deadlines “extended from the close of business on Thursday, August 29, 2019, until the close of business on Thursday,September 5, 2019.”

Fifth District AOSC19-57 (Sept. 6, 2019)[.pdf] time limits ” extended from the close of business on Friday, August 30, 2019, until the close of business on Thursday, September 5, 2019.”

In all of the orders, the Court recognizes there may be additional need for enlargements, which “shall be resolved by the court in which jurisdiction is vested on a case-by-case basis when a party demonstrates that the lack of compliance with requisite time periods was directly attributable to this emergency and that equitable remedy is required.”

Don’t expect orders regarding the First DCA or the Supreme Court, because those courts did not close for Dorian.

The lesson for practitioners: Consider adding a hurricane plan to your business practices. We’re in Florida. It happens. And it’s disruptive even when there is no landfall. We have two more months until hurricane season is over for 2019.

Hurricane Dorian approaching Florida

How Does a Hurricane Affect Court Deadlines? (Dorian Edition)

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Hurricane Dorian approaching Florida

National Oceanic and Atmospheric Administration (NOAA) image of Hurricane Dorian taken Sunday, Sept. 1, 2019, at 17:00 UTC.

Even though we currently have sunny skies, many courts in Florida are closed today due to the threat of Hurricane Dorian (Specifically, the Second and Third Districts are closed today, and the Fourth and Fifth Districts are closed today and tomorrow, with the First and Florida Supreme Court still open as of this writing. How does that affect court deadlines? The short answer: In Florida state courts, you won’t know until the storm is over, so don’t count on a deadline moving. And in Federal Court, the courthouse being closed does not mean you can’t file, so your best bet is to meet any deadline today. Here’s the rules-geek long answer:

Deadlines in Florida State Courts

An emergency closure does not count as a “Court Holiday” under Florida Rules of Judicial Administration Rule 2.514(a)(6)(B) — the Courts are not calling it a “holiday,” and doing so probably has personnel implications that Court administration doesn’t want to deal with. However, the Florida Supreme Court generally issues administrative orders extending deadlines in the affected counties. Right now, the Florida Supreme Court’s emergency page states:

After a storm, orders will be issued by the Chief Justice retroactively extending deadlines in storm-damaged areas. Attorneys and others who missed legal deadlines or hearing dates in areas hard-hit by a hurricane will be protected by these orders, which will be issued once the courts in these areas reopen. They will be posted on our Administrative Orders page when issued.

(This from the Florida Supreme Court Emergency Page as of noon on September 3, 2019). As of this writing, there are no such orders in place, since the threat is not yet over. Check the Court’s administrative orders emergency page for updates. But also, we have not actually been hit so far, so I would be concerned that the Court is not going to ultimately extend deadlines for all. Even with Courts closed, meet all deadlines today, or timely seek extensions. The Florida appellate courts, in particular, are generous with timely-requested enlargements, so don’t hesitate to ask the Court for them.

But what about deadlines that are not normally allowed to be extended? Rule 1.090 states that, even for good cause, a Court:

may not extend the time for making a motion for new trial, for rehearing, or
to alter or amend a judgment; making a motion for relief from a judgment under
rule 1.540(b); taking an appeal or filing a petition for certiorari; or making a
motion for a directed verdict.

We did this analysis for Hurricane Matthew, so check out our prior post on that one.

Deadlines in Federal Courts

The Federal Rules of Appellate Procedure state that when calculating deadlines computed as days:

if the period would end on a Saturday, Sunday, or legal holiday, the period continues to run until the same time on the next day that is not a Saturday, Sunday, or legal holiday.

Federal Rule of Appellate Procedure 26(a)(2)(C). The Federal rules have an additional helpful provision expressly addressing “Inaccessibility” of the Clerk’s Office:

(3) Inaccessibility of the Clerk’s Office. Unless the court orders otherwise, if the clerk’s
office is inaccessible:
(A) on the last day for filing under Rule 26(a)(1), then the time for filing is extended
to the first accessible day that is not a Saturday, Sunday, or legal holiday; or

Federal Rule of Appellate Procedure 26(a)(3). But remember, a closure of the physical building does not make the clerk’s office inaccessible. For example, the Middle District of Florida website currently states:

UPDATE: 7:45 p.m. | Monday, September 2, 2019

On Tuesday, September 3, 2019, the Jacksonville, Ocala, and Orlando divisions are closed, and the Fort Myers and Tampa divisions are open.

On Wednesday, September 4, 2019, the Jacksonville division is closed, and the Fort Myers, Ocala, Orlando, and Tampa divisions are open.

CM/ECF remains available. The website will be updated if additional closures are required.

And the Eleventh Circuit does not even mention the hurricane on its website as of this writing, but since all filings are supposed to be made through ECF or through Atlanta, any “inaccessibility” argument won’t get very far.

Requesting Extensions After the Fact

Remember that if you miss a deadline in most courts, you have a higher burden to prove entitlement to the extension. Both state and federal courts are going to require a showing of good cause and excusable neglect. So meet your filing deadlines today, or at the very least get extension request on file before the deadline passes.