JOSE A. GARCIA, APPELLANT,
v.
ILEANA COLLAZO, APPELLEE
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The Third District Court of Appeal addressed a motion for attorney's fees and costs filed by Collazo in response to Garcia's frivolous appeal from a non-final, non-appealable order. The court struck Collazo's request for appellate costs as procedurally improper, denied her insufficiently pleaded request for appellate attorney's fees, and ordered Garcia to show cause why sanctions should not be imposed against him and his counsel for pursuing an appeal unsupported by law or facts.
The court struck Collazo's request for appellate costs without prejudice, as costs must be sought in the lower court after the mandate is returned, not in the appellate court. The court denied Collazo's request for appellate attorney's fees because it was insufficiently pleaded and failed to cite a substantive basis for the award. The court sua sponte ordered Garcia to show cause why sanctions should not be imposed pursuant to section 57.105, Florida Statutes, and Rule 9.410 of the Florida Rules of Appellate Procedure.
[1] A motion for appellate costs must be filed in the lower tribunal after jurisdiction has been returned by mandate, not in the district court.
[2] The time limit for filing a motion for costs in the lower tribunal after issuance of the mandate is jurisdictional.
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Join FLexlaw to unlock all legal intelligence“Motions for appellate costs cannot be filed in the district court but must be filed in the lower tribunal after jurisdiction has been returned to that body by our mandate.”
Establishes the procedural requirement that appellate costs must be sought in the lower court, not the appellate court.
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Join FLexlaw to unlock all legal intelligenceGarcia appealed from a non-final, non-appealable order. Collazo moved to dismiss the appeal for lack of jurisdiction and included within that motion a…
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ON MOTION FOR ATTORNEY'S FEES
- Ileana Collazo seeks appellate attorney’s fees and costs resulting from a frivolous appeal from a non-appealable non-final order. Garcia v. Collazo, No. 3D15-994, 167 So.3d 523 (Fla. 3d DCA July 8, 2015). Collazo made the request for costs and fees within her motion to dismiss Garcia’s appeal for lack of jurisdiction. This Court *430granted her motion and dismissed the appeal. ■
Collazo first requests appellate costs. Motions for appellate costs cannot be filed in the district court but must be filed in the lower tribunal after jurisdiction has been returned to that body by our mandate. “Costs shall be taxed by the lower tribunal on motion served within 30 days after issuance of the mandate.” Fla, R. App. P. 9.400(a); See Vella v. Vella, 691 So.2d 612 (Fla. 4th DCA 1997). Accordingly, we strike Collazo’s request for costs on appeal, which she first filed in this Court, without prejudice to Collazo’s right to file a" timely motion pursuant to rule 9.400(a) in the circuit court, noting that' the time limit for filing pursuant to that rule is jurisdictional. See Superior Prot., Inc. v. Martinez, 930 So.2d 859, 860 (Fla. 2d DCÁ 2006).
Collazo next requests. appellate attorney’s fees, citing Rule 9.400, Florida Rule of Appellate Procedure as the basis for her right to such fees. Rule 9.400 governs the procedure to be followed with respect to appellate entitlement to fees, but the rule is procedural rather than substantive and therefore cannot serve as the basis for an award of appellate attorneys’ fees.. State, Dep’t of Highway. Safety & Motor Vehicles v. Trauth, 971 So.2d 906, 908 (Fla. 3d DCA 2007). A party seeking attorney’s fees in an appellate court must provide substance and specify the particular contractual, statutory, or other substantive basis for an award of fees on appeal. United Servs. Auto. Ass’n v. Phillips, 775 So.2d 921, 922 (Fla.2000) (“It 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.”); - In addition, attorney's fees must be requested by filing a separate motion and not merely»as a line request in a pleading. See McCreary v. Florida Residential Prop. & Cas. Joint Underwriting Ass’n, 758 So.2d 692, 696 (Fla. 4th DCA 1999); Melweb Signs, Inc. v. Wright, 394 So.2d 475, 477 (Fla. 1st DCA 1981). Collazo’s request for appellate attorney’s fees is insufficient as it was only one line in her motion to dismiss and gave no substantive basis for the right to such fees. Accordingly, we deny Collazo’s request for appellate attorney’s fees.
At-the same time, the Court on its own motion orders the appellant, Garcia, to show cause within ten (10) days as to why this Court should not impose ‘ sanctions, including attorney’s fees, against Garcia and his counsel pursuant to- section 57.105, Florida Statutes (2015), ánd Rule 9.410 of the Florida Rules of Appellate Procedure for pursuing an appeal unsupported by the law or facts. See Freedom Commerce Centre Venture v. Ranson, 823 So.2d 817 (Fla. 1st DCA 2002) (granting appellate attorney’s fees where appeal would have been completely unnecessary had the offending party recognized the correct state of the law).
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Essenson v. Bloom, 251 So. 3d 1026 (Fla. 2d DCA 2018)
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Edmond Santiago v. Shaynna Leanne Posey (Fla. 5th DCA 2023)…erally, if a party to an appeal files a motion in this court for an award of costs on appeal, this court will strike the motion because such costs are properly sought in the first instance in the trial court.” (footnote omitted)); Garcia v. Collazo, 178 So. 3d 429, 430 (Fla. 3d DCA 2015) (striking a motion for costs on appeal without prejudice to the moving party filing a timely motion under rule 9.400(a) in the circuit court). AFFIRMED; APPELLEE’S MOTION FOR APPELLATE ATTORNEY’S FEES DENIED; APPELLEE’S MOTI…
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Johansson v. Juliet E. Johansson (Fla. 4th DCA 2022)…Both parties’ briefs included requests for appellate attorney’s fees. We deny both requests because neither party filed a separate motion nor cited a substantive basis for an attorney’s fees award. See Fla. R. App. P. 9.400(b); Garcia v. Collazo, 178 So. 3d 429, 430 (Fla. 3d DCA 2015); McCreary v. Fla. Residential Prop. & Cas. Joint Underwriting Ass’n, 758 So. 2d 692, 696 (Fla. 4th DCA 1999). Affirmed in part, reversed in part, and remanded with instructions. Requests for attorney’s fees denied. CIKLIN,…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fran McCREARY and Cain McCreary v. Fla. Residential Prop. & Cas. Joint Underwriting Ass'n, 758 So. 2d 692 (Fla. 4th DCA 1998)
- United Servs. Auto. Ass'n v. Phillips, 775 So. 2d 921 (Fla. 2000)
- State v. Trauth, 971 So. 2d 906 (Fla. 3d DCA 2007)
- Freedom Commerce Ctr. Venture v. Ranson, 823 So. 2d 817 (Fla. 1st DCA 2002)
- Melweb Signs, Inc. v. Wright, 394 So. 2d 475 (Fla. 1st DCA 1981)
- Superior Prot., Inc. v. Martinez, 930 So. 2d 859 (Fla. 2d DCA 2006)
- Vella v. Vella, 691 So. 2d 612 (Fla. 4th DCA 1997)
- Garcia v. Ileana Collazo, 167 So. 3d 523 (Fla. 3d DCA 2015)