JAMES SEADLER

v.

MARINA BAY RESORT CONDOMINIUM ASSOCIATION, INC. D/B/A MARINA BAY RESORT

ON MOTIONS FOR APPELLATE ATTORNEY’S FEES PURSUANT TO SECTION 768.79, FLORIDA STATUTES

PER CURIAM.

In the light of the trial court’s determination that the appellee is entitled to attorney’s fees pursuant to section 768.79, Florida Statutes, this court grants the appellee’s motion for appellate attorney’s fees and denies the appellant’s motion for fees. Frosti v. Creel, 979 So. 2d 912, 917 (Fla. 2008) (“The right to attorney fees pursuant to section 768.79 applies to fees incurred on appeal.”). We remand this matter to the trial court for a determination of the amount of appellate fees to be assessed. See Fla. R. App. P. 9.400(b).

OSTERHAUS and JAY, JJ., concur; TANENBAUM, J., specially concurs with an opinion.

TANENBAUM, J., specially concurring.

Because the supreme court has stated specifically that section 768.79 applies to appellate fees, this court ostensibly has no choice but to grant the appellee’s request for attorney’s fees incurred in this appeal. Still, there has been no legal analysis to speak of to support the proposition, and the supreme court’s unelaborated pronouncement on the matter conflicts with the statutory text and the court’s own characterization of section 768.79.

Section 768.79 does not specifically create a right to recover appellate fees. The statute applies only in a “civil action for damages.” § 768.79(1), Fla. Stat. An appeal or petition filed in an appellate court is not such an action. It is an entirely separate action for relief, typically seeking to quash or reverse a trial court order or judgment. Cf. State ex rel. Mortg. Inv. Found., Inc. v. Knott, 97 So. 2d 265, 266 (Fla. 1957) (explaining that the supreme court’s judgment and mandate had the effect of superseding and nullifying the judgment of the trial court); O.

P. Corp. v. Vill. of N. Palm Beach, 302 So. 2d 130, 131 (Fla. 1974) (explaining “that the judgment of an appellate court, where it issues a mandate, is a final judgment in the cause and compliance therewith by the lower court” is required); Berger v. Leposky, 103 So. 2d 628, 631 (Fla. 1958) (noting that an appellate court’s mandate is directed to the lower tribunal and not to the parties); Thibodeau v. Sarasota Mem’l Hosp., 449 So. 2d 297, 298 (Fla. 1st DCA 1984) (“It is well settled that the judgment of an appellate court, where it issues a mandate, is a final judgment.”).

Indeed, the filing of an appeal or petition with an appellate court initiates a new case and ordinarily requires the payment of a new filing fee. See § 25.241(2)(a), Fla. Stat. (requiring the supreme court clerk to collect a filing fee “for each case docketed” after the filing of a notice of appeal or petition, except in certain circumstances); § 35.22(2)(a), Fla. Stat. (requiring each district court clerk to do the same).

The appellate courts cannot grant appellate attorney’s fees in the absence of a substantive right to those fees; there is no procedural entitlement. Cf. Fla. R. App. P. 9.400(b) (requiring that a motion for fees “state the grounds” for the fees being sought); United Servs. Auto. Ass’n v. Phillips, 775 So. 2d 921, 922 (Fla. 2000) (rejecting rule 9.400 as an independent basis for fees and interpreting the rule to require a movant in an appellate court to “specify the particular contractual, statutory, or other substantive basis for an award of fees on appeal”).

Meanwhile, by law, the appellate courts have the authority to construe a statutory or contractual provision to include the payment of appellate attorney’s fees only when such a provision allows for the payment of attorney’s fees to the prevailing party. See § 59.46, Fla. Stat. (“In the absence of an expressed contrary intent, any provision of a statute or of a contract . . . providing for the payment of attorney’s fees to the prevailing party shall be construed to include the payment of attorney’s fees to the prevailing party on appeal.”).

Section 768.79 is not a prevailing-party fee provision; it is a penalty provision. § 768.79(1), Fla. Stat. (referencing “the penalties of this section”); Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So. 2d 276, 278 (Fla. 2003) (characterizing section 768.79 as providing “a sanction against a party who unreasonably rejects a settlement offer”); Sarkis v. Allstate Ins. Co., 863 So. 2d 210, 223 (Fla. 2003) (treating section 768.79 as imposing a penalty); cf. id. at 222 (“The right to the award of attorney fees attaches to the rejection of the offer of judgment, not to the cause of action.”).

Appellate courts, then, are powerless to construe section 768.79 to include appellate fees. The supreme court, however, tells us that it does. If not for that directive from a superior court, I would stay true to the statutory text and deny the appellee’s motion for appellate attorney’s fees as unauthorized.