GEORGE CARI, APPELLANT,
v.
GERALD ERICKSON AND MONIKA ERICKSON, HIS WIFE, APPELLEES
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The Fourth District Court of Appeal reversed a trial court order assessing appellate attorneys' fees against the appellant, holding that trial courts lack authority to award attorney's fees for services rendered in the appellate court.
The trial court is without authority to fix attorney's fees for services rendered in the appellate court. Although an appellate court may award attorney's fees incurred in prosecuting an appeal under appropriate circumstances, only the appellate court—not the trial court—may assess such fees.
[1] A trial court is without authority to assess attorney's fees for services rendered in an appellate court.
[2] Appellate rules permit the appellate court, under appropriate circumstances, to require the losing party to pay attorney's fees incurred by the prevailing party for prose…
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Join FLexlaw to unlock all legal intelligence“the trial court is without authority to fix attorneys' fees for services rendered in the Appellate Court”
Establishes the core holding that trial courts lack authority to assess appellate attorney's fees
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Join FLexlaw to unlock all legal intelligenceThe trial court assessed attorney's fees against George Cari for services rendered by Gerald and Monika Erickson's counsel in a previous appeal. No mo…
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HERSEY, Judge.
This is an appeal from an order of the trial court assessing attorneys’ fees against appellant for services rendered to appellees in a previous appeal. No motion for attorneys’ fees was filed by appellees in those appellate proceedings.
It is appellant’s position that the rule then in effect (Rule 3.16(e), 1962 Florida Rules of Appellate Procedure) precludes the allowance of attorney’s fees by the trial court for services performed in the appellate court.
We agree and reverse. Howell v. Howell, 183 So. 2d 261, 264 (Fla. 2nd DCA 1966) succinctly states the rule that “the trial court is without authority to fix attorneys’ fees for services rendered in the Appellate Court....”
In Re Estate of Potts, 199 So. 2d 319 (Fla. 2nd DCA 1967) and In Re Estate of Garvey, 212 So. 2d 790 (Fla. 3rd DCA 1968) are cited and argued in the briefs of both parties. Because of the importance of the question involved and the frequency with which it is raised, we will touch briefly upon what we perceive to be the distinguishing feature between the rule in those cases and the rule involved here.
First, the rule applied in the instant case is that the trial court is without authority to assess attorney’s fees for services rendered in the Appellate Court. This rule continues to be applicable under the appellate rules adopted in 1977. (Fla.R.App.P. 9.400.) Second, the rule referred to in the cited cases provides that the probate court has exclusive jurisdiction (Art. V, § 7(3), Fla.Const.) to award attorneys’ fees in the settling of estates.
Any supposed conflict in the application of these two rules is superficial. The appellate rule simply permits the appellate court under appropriate circumstances to require the losing party to pay the attorney’s fees incurred by the prevailing party for prosecuting the appeal. The case law interprets this rule as prohibiting the trial court from doing so. Thus the probate court may not assess a fee to be paid by the estate to an attorney representing a party adverse to the estate for services rendered in prosecuting a successful appeal against the estate.
The probate rule gives the probate court authority to require an estate to pay an attorney for services rendered to the estate, which may include services rendered in the appellate court. It follows that an appellate court is not permitted to award a fee to be paid from the estate to the attorney for the estate for services rendered on appeal.
With this clarification, we reverse the order of the trial court awarding an attorney’s fee.
REVERSED AND REMANDED.
LETTS, C. J., and DOWNEY, J., concur.
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AETNA Cas. & Sur. Co. v. Edward Langel & Joan Langel, 587 So. 2d 1370 (Fla. 4th DCA 1991)…eal was taken. Lastly, the Langels’ application for appellate attorneys fees in the first appeal was denied by this court and such fees cannot thereafter be awarded by the trial court absent directions, which were not given. Carl v. Erickson, et ux, 394 So. 2d 1022 (Fla. 4th DCA 1980). So they are not payable as appellate fees. In sum, we can find no valid basis for an award of additional attorneys fees payable by Aetna to the Langels or to any of their attorneys. The trial court was in error in awarding them…
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Bissmeyer v. Se. Bank, N.A., 596 So. 2d 678 (Fla. 2d DCA 1991)…o. 2d 685 (Fla.1969), and was also affected by the change in appellate rules. To avoid confusion, we announce that this court follows the guidelines described in In re Estate of Udell, 501 So. 2d 1286 (Fla. 4th DCA 1986). See also, Cari v. Erickson, 394 So. 2d 1022 (Fla. 4th DCA 1981). The order awarding fees was not paid by the estate pending the first appeal. When that appeal was concluded, the circuit court refused to add interest to that award, finding that the payment was not arbitrarily withheld. The r…
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In re The Est. OF Daniel A. Udell, 501 So. 2d 1286 (Fla. 4th DCA 1986)…of Appellate Procedure, although the amount of the fee may be determined by the lower tribunal upon remand for that purpose. The lower tribunal has no authority to grant attorney's fees for appellate services in the first instance. Cari v. Erickson, 394 So. 2d 1022 (Fla. 4th DCA 1981); Howell v. Howell, 183 So. 2d 261 (Fla. 2d DCA 1966). The general rule, then, is that only the appellate court is authorized to award attorney’s fees to the prevailing party and against the losing party. In probate proceedings t…1 / 2
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Revenell v. State, 183 So. 2d 261 (Fla. 4th DCA 1966)
- Howell v. Howell, 183 So. 2d 261 (Fla. 2d DCA 1966)
- In re Est. of Leon Garvey v. Garvey, 212 So. 2d 790 (Fla. 3d DCA 1968)
- In re Est. of Ira D. Potts, 199 So. 2d 319 (Fla. 2d DCA 1967)
- Marks v. Novak, 199 So. 2d 319 (Fla. 3d DCA 1967)