Third District Court of Appeal
State of Florida
Opinion filed December 16, 2020.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-0240
Lower Tribunal No. 18-30482
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H Greg Auto Pompano, Inc., et al.,
Appellants,
vs.
William Raskin, et al.,
Appellees.
An appeal from a nonfinal order the Circuit Court for Miami-Dade County,
Martin Zilber, Judge.
Birnbaum, Lippman and Gregoire, PLLC, and Nancy W. Gregoire, and
Juliette E. Lippman (Fort Lauderdale); and Quinton and Paretti, P.A., and Kenneth
L. Paretti, for appellants.
Law Offices of Kramer & Klingsberg, and Debra D. Klingsberg, and George
W. Kramer (Delray Beach), for appellees.
Before EMAS, C.J., and LOGUE, and MILLER, JJ.
MILLER, J.
We affirm the nonfinal order under review without elaboration, see HHH
Motors, LLP v. Holt,
152 So. 3d 745 (Fla. 1st DCA 2014), and write only to address
the propriety of granting appellees’ motion for appellate attorney’s fees under
Florida Rule of Appellate Procedure 9.400 and the Florida Deceptive and Unfair
Trade Practices Act (“FDUTPA”) section 501.2105, Florida Statutes (2020).
Persuaded of the untimeliness of the submission, we grant appellants’ motion to
strike.
“[I]n order to invoke the jurisdiction of the court to award [appellate] fees, the
party seeking attorney’s fees must timely file a motion pursuant to Florida Rule of
Appellate Procedure 9.400(b), in the appellate court.” Respiratory Care Servs., Inc.
v. Murray D. Shear, P.A.,
715 So. 2d 1054, 1056 (Fla. 5th DCA 1998). In appeals,
the motion for fees “shall be served not later than . . . the time for service of the reply
brief.” Fla. R. App. P. 9.400(b)(1). This time is circumscribed by Florida Rule of
Appellate Procedure 9.210(f), which provides “the reply brief, if any, shall be served
within [thirty] days after service of the answer brief.”
Here, the answer brief was electronically transmitted through the Florida
Courts E-Filing Portal. See Fla. R. Jud. Admin. 2.516(d) (“All documents must be
filed with the court either before service or immediately thereafter.”). Although
docketed on Monday, April 20, 2020, the electronic stamp of the clerk reflects the
brief was received, hence filed, on Sunday, April 19, 2020. See Fla. R. Jud. Admin.
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2.525(f)(3) (“The filing for an electronically transmitted document” is defined as
“the date and time that such filing is acknowledged by an electronic stamp or
otherwise, pursuant to any procedure set forth in any E[lectronic] C[ourt] F[iling]
Procedures approved by the supreme court, or the date the last page of such filing is
received by the court or clerk.”). Consequently, the thirty-day time limit for filing
the reply brief began to run on Monday, April 20, 2020. See Fla. R. App. P. 9.420(e)
(“Computation of time shall be governed by Florida Rule of Judicial Administration
2.514.”); Fla. R. Jud. Admin. 2.514(a)(1)(A) (“When the period is stated in days or
a longer period of time . . . begin counting from the next day that is not a Saturday,
Sunday, or legal holiday.”). Thus, “the time for service of the reply brief” expired
on Tuesday, May 19, 2020, rendering the motion for fees, filed on Wednesday, May
20, 2020, untimely under Florida Rule of Appellate Procedure 9.400(b). Fla. R.
App. P. 9.400(b)(1).
As the language within Rule 9.400 is mandatory, our high court has
determined the failure to comply with the time constraints set forth in Rule 9.400 is
a valid justification for denying fees, and, here, having not been presented with a
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valid reason for noncompliance, we grant the motion to strike. See Hicks v.
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Although under section 501.2105(1), Florida Statutes, a prevailing party may not
“receive” fees and costs until “after judgment in the trial court and exhaustion of all
appeals,” we decline to depart from the well-established tenet that absent
authorization from the appellate court, a “trial court [is] not possessed of the
jurisdiction to fix fees for appellate services.” Rubin v. Sanford,
198 So. 2d 856,
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Miranda,
422 U.S. 332, 352,
95 S. Ct. 2281, 2293,
45 L. Ed. 2d 223 (1975) (Burger,
C.J., concurring) (“It is well settled that ‘shall’ means ‘must.’”) (citation omitted);
Must, Garner’s Dictionary of Legal Use (3d ed. 2011) (“The normative must may
be merely a strong ought or an absolute requirement.”); see also Salley v. City of St.
Petersburg,
511 So. 2d 975, 977 (Fla. 1987), receded from on other grounds by
United Servs. Auto. Ass’n v. Phillips,
775 So. 2d 921 (Fla. 2000) (“[T]he failure to
file a motion for attorney’s fees in accordance with Florida Rule of Appellate
Procedure 9.400(b) is a proper basis for the denial of attorney’s fees on appeal.”);
Lobel v. Southgate Condo. Ass’n, Inc.,
436 So. 2d 170, 171 (Fla. 4th DCA 1983).
Order affirmed; motion to strike granted.
857 (Fla. 3d DCA 1967) (citations omitted); see Louth v. Williams,
643 So. 2d 69,
70 (Fla. 2d DCA 1994) (where appellee sought attorney’s fees in the trial court for
the fees incurred in appellate court proceeding the “trial court did not have
jurisdiction to make an award of appellate attorney’s fees”); see also Rados v. Rados,
791 So. 2d 1130, 1132 (Fla. 2d DCA 2001) (“[A] litigant who wants to pursue a
claim for appellate attorney’s fees is required to file a motion in the appellate court
under rule 9.400(b), stating the legal basis for the claim.”) (citation omitted); Foley
v. Fleet,
652 So. 2d 962, 963 (Fla. 4th DCA 1995) (“While it seems anomalous to
require a motion for prevailing party attorney’s fees to be filed or considered in an
interlocutory appellate proceeding, since that proceeding will not determine who
ultimately prevails, it is necessary because without authorization from an appellate
court, a trial court cannot award attorney’s fees for services rendered on an appeal.”)
(citations omitted); Travelers Indem. Co. of Am. v Morris,
390 So. 2d 464, 465 (Fla.
3d DCA 1980), disapproved on other grounds by Pepper’s Steel & Alloys, Inc. v.
United States,
850 So. 2d 462 (Fla. 2003) (“[S]ince we did not remand the issue to
the lower tribunal as permitted by Fl[orida] R[ule of] App[ellate] P[rocedure]
9.400(b), the trial court lacked jurisdiction to award fees for services related to the
earlier appeal.”) (citation omitted).
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