WALLACE SALLEY, ET AL., PETITIONERS,
v.
CITY OF ST. PETERSBURG, ETC., RESPONDENT
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The Florida Supreme Court held that a property owner seeking appellate attorney's fees in a condemnation action must comply with Florida Rule of Appellate Procedure 9.400(b) by filing a motion that specifies the grounds for the fee award, even though such fees are mandatory under the condemnation statute.
The Court held that failure to file a motion for attorney's fees in compliance with Rule 9.400(b)—including stating the grounds upon which recovery is sought—is a proper basis to deny the motion. However, an appellate court is not precluded from awarding attorney's fees if the rule's requirements are not met, and the Court receded from prior language in Behm suggesting no motion is necessary for mandatory fee awards.
[1] A motion for attorney's fees on appeal must state the grounds upon which recovery is sought, as required by Florida Rule of Appellate Procedure 9.400(b).
[2] Failure to comply with the procedural requirements for seeking appellate attorney's fees can be a sufficient basis for denial.
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Join FLexlaw to unlock all legal intelligence“The filing of a motion for attorney's fees is necessary to direct the court's attention to the need to rule on that issue.”
Explains the rationale for requiring compliance with Rule 9.400(b) despite mandatory fee statutes
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Join FLexlaw to unlock all legal intelligenceThe City of St. Petersburg condemned property owned by petitioners as successor trustees of a Masonic Lodge. Petitioners were awarded $224,588.50 at t…
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GRIMES, Justice.
We accepted jurisdiction in this case to review an order which is in apparent conflict with Denmark v. State Department of Transportation, 389 So. 2d 201 (Fla. 1980). Art. V, § 3(b)(3), Fla. Const. The City of St. Petersburg filed an action to condemn certain property owned by the petitioners as successor trustees of a Masonic Lodge. The petitioners were awarded $224,588.50 for the condemned property. On appeal, the Second District Court of Appeal reversed the judgment because the court had employed an improper method of valuation. City of St. Petersburg v. Clark, 492 So. 2d 685 (Fla. 2d DCA 1986). By separate unpublished order, the district court denied petitioners’ motion for attorney’s fees. We deal only with that order. Section 73.131(2), Florida Statutes (1985), provides:
The petitioner shall pay all reasonable costs of the proceedings in the appellate court, including a reasonable attorney’s fee to be assessed by that court, except upon an appeal taken by a defendant in which the judgment of the trial court shall be affirmed.
In Denmark this Court construed section 73.131(2) to require the payment of appellate attorney’s fees even in cases where the property owner loses the appeal, provided the appeal was taken by the condemning authority.
The city concedes that under ordinary circumstances petitioners were entitled to appellate attorney’s fees. However, the city points out that petitioners’ motion for attorney's fees did not specify the grounds upon which they made their claim. Florida Rule of Appellate Procedure 9.400(b) states:
(b) Attorney’s Fees. A motion for attorney’s fees may be served not later than the time for service of the reply brief and shall state the grounds upon which recovery is sought. The assessment of attorney’s fees may be remanded to the lower tribunal. If attorney’s fees are assessed by the court, the lower tribunal may enforce payment.
(Emphasis added.) The failure to comply with the requirements of this rule has been deemed a sufficient basis to deny a motion for attorney’s fees. Dooley v. Culver, 370 So. 2d 1154 (Fla. 4th DCA 1978). See Le-high Corp. v. Byrd, 397 So. 2d 1202 (Fla. 1st DCA 1981).
Petitioners respond by referring to Behm v. Division of Administration, Department of Transportation, 288 So. 2d 476 (Fla.1974), in which this Court granted a motion for attorney’s fees in a condemnation action over the objection that it had not been timely filed under the appellate rules. The Court said that when an award of fees is mandatory rather than discretionary, no motion for attorney’s fees is necessary. However, the Court made that observation in the course of analyzing former Florida Rule of Appellate Procedure 3.16(e) which then provided for the filing of motions for attorney’s fees which were “allowable by law.” The Court reasoned that the rule was inapplicable in cases such as eminent domain where the payment of attorney’s fees was mandatory.
The current appellate rule on attorney’s fees serves a laudable purpose. The filing of a motion for attorney’s fees is necessary to direct the court’s attention to the need to rule on that issue. In recent years, the legislature has enacted many new provisions authorizing the payment of attorney’s fees under certain circumstances. Unless the authority upon which the fees are sought is set forth in the motion, the court may not realize the basis upon which the claim is being made.
Therefore, we hold that the 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. However, our ruling should not be construed to mean that an appellate court is precluded from making a lawful award of attorney’s fees if the requirements of rule 9.400(b) are not met. We recede from the comment in Behrn that no motion is necessary when an award of attorney’s fees is mandatory.
Applying these principles to the case at hand, it is evident that the petitioners’ motion for attorney’s fees was legally insufficient. Therefore, we affirm the order denying the motion for attorney’s fees.
It is so ordered.
McDonald, C.J., and OVERTON, EHRLICH, SHAW, BARKETT and KOGAN, JJ., concur.
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Fran McCREARY and Cain McCreary v. Fla. Residential Prop. & Cas. Joint Underwriting Ass'n, 758 So. 2d 692 (Fla. 4th DCA 1998)…339 (Fla. 1st DCA 1980). Furthermore, “the 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.” Salley v. City of St. Petersburg, 511 So. 2d 975, 977 (Fla.1987). Accordingly, appellants’ request for attorney’s fees is denied. KLEIN and TAYLOR, JJ., concur.…
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Delap v. Dugger, 513 So. 2d 659 (Fla. 1987)…of another person; F, the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired; G, age of the defendant at the time of the crime. . Morgan v. State, 511 So. 2d 975 (Fla.1987) (no indication that judge knew that nonstatutory mitigating evidence was pertinent); Thompson v. Dugger, 515 So. 2d 173 (Fla.1987) (prosecutor told jury to consider only statutory mitigating evidence and defense counsel was precluded from…
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United Servs. Auto. Ass'n v. Phillips, 775 So. 2d 921 (Fla. 2000)…is simply insufficient for parties to only refer to rule 9.400 or to rely on another court’s order in support of a motion for attorney’s fees for services rendered in an appellate court. We specifically recede from Salley v. City of St. Petersburg, 511 So. 2d 975 (Fla.1987), to the extent that it suggests that appellate fees may be awarded, even if a party fails to comply with the substantive requirements of Florida Rule of Appellate Procedure 9.400(b). We intend for this policy to apply prospectively. Ther…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lehigh Corp. & U. S. Fid. & Guar. Co. v. Byrd, 397 So. 2d 1202 (Fla. 1st DCA 1981)
- Behm v. Division OF Administration, 288 So. 2d 476 (Fla. 1974)
- City OF ST. Petersburg v. Clark, 492 So. 2d 685 (Fla. 2d DCA 1986)
- Denmark v. State of Fla. Dep't OF Transp., 389 So. 2d 201 (Fla. 1980)
- Dooley v. Culver, 370 So. 2d 1154 (Fla. 4th DCA 1978)