You have just won your appeal. You are ecstatic. But wait, what is this? You received an order from the appellate court ordering you to pay the other side’s appellate fees, even though they lost. You say to yourself, “but they lost.”
In the Fourth District Court of Appeal, winning or losing the appeal generally does not matter. At least, it does not generally matter when the basis for appellate attorney fees, is a contractual provision, which awards fees to the prevailing party in the litigation. According to the Fourth District Court of Appeal, a party who ultimately prevails in the litigation can be awarded appellate attorney fees even if they lost on appeal. See Aksomitas v. Maharaj, 771 So. 2d 541 (Fla. 4th DCA 2000).
However, if you are in the Second or Fifth District Court of Appeal, you would probably not have to pay such fees. See Brevard Orthopaedic, Spine & Pain Clinics, Inc. v. Health First Med. Mgmt., 130 So. 3d 274 (Fla. 5th DCA 2014); E. Coast Metal Decks, Inc. v. Boran Craig Barber Engel Constr., Co., 114 So. 3d 311 (2d DCA 2013); Dienstl v. Castle Builders U.S., Inc., 49 So. 3d 1272 (Fla. 2d DCA 2010). For instance, in Brevard Orthopaedic, Spine & Pain Clinics, Inc. v. Health First Med. Mgmt, the contract allowed attorney’s fees to the prevailing party. Brevard Orthopaedic, Spine & Pain Clinics, Inc. v. Health First Med. Mgmt., 130 So. 3d 274 (Fla. 5th DCA 2014). The Petitioner filed a petition for writ of certiorari, which was denied and both parties moved for appellate attorney fees. Id. The Fifth District granted “Respondent’s motion for fees provided Respondent is found by the trial court to be the prevailing party under the pertinent provision of the agreements at the conclusion of the underlying lawsuit.” Id. The Fifth District Court of Appeal denied the motion for appellate attorney fees to the Petitioner because Petitioner did not prevail in the certiorari proceedings. Id.
For example, in E. Coast Metal Decks, Inc. v. Boran Craig Barber Engel Constr., Co., “both parties moved for prevailing party appellate attorneys’ fees pursuant to the contract.” E. Coast Metal Decks, Inc. v. Boran Craig Barber Engel Constr., Co., 114 So. 3d 311 (2d DCA 2013). The Appellant did not prevail on appeal and as a result, the Second District denied Appellant’s motion for appellate attorney fees. Id. The Second District held that “we continue to adhere to the traditional approach of conditionally awarding prevailing party appellate attorneys’ fees only to the party who prevails on appeal.” Id.
Although, if the basis for appellate attorney is Fla. Stat. 627.428 then whether or not you win on appeal matters. The Florida Supreme Court has held that if the basis for appellate attorney fees is Fla. Stat. 627.428, an appellate court may not award attorney’s fees to an insured unless the insured prevails on appeal. See Brass & Singer, P.A. v. United Auto. Ins. Co., 944 So. 2d 252 (Fla. 2006). This is because the plain language of Section 627.428 states that the insured must prevail in the appeal to receive appellate attorney fees. See Fla. Stat. 627.428 (“..in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or degree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney…”).
Moreover, the Florida Supreme Court’s ruling appears to be limited to awarding attorney fees in insurance disputes under section 627.428 and thus should not be extended to attorney fees based on a contract. See E. Coast Metal Decks, Inc. v. Boran Craig Barber Engel Constr. Co., 114 So. 3d 311 (Fla. 2d DCA 2013) (Recognized that Brass & Singer was limited to the proper interpretation of section 627, 428(1), which contained specific language regarding when fees may be awarded to an insured or beneficiary in an insurance dispute.). It is also recognized by the Fifth District that recovery of appellate fees under Fla. Stat. 627.428 is only permitted for appeals and thus an insured would not be entitled to fees for a certiorari proceeding even if the insured prevailed. See Grider-Garcia v. State Farm Mut. Auto., Etc., 14 So. 3d 1120 (Fla. 5th DCA 2009).