A motion for Florida appellate attorneys’ fees “shall state the grounds on which recovery is sought.” This rule applies to appeals from probate orders and all other appeals. Florida Rule of Appellate Procedure 9.400(b).
In Pardo__Kaplan_v__Goldberg1, (3d DCA 2012) the Florida Third District Court of Appeal confirmed the importance of specifically stating the grounds upon which Florida appellate fees are sought.
Lisa Goldberg filed a motion for appellate attorneys’ fees. Goldberg’s stated grounds upon which appellate fees were sought were under both a promissory note and a personal guaranty. The appellate court denied the appellate motion for fees because neither the promissory note nor the personal guaranty created an entitlement to fees.
Goldberg filed a motion for rehearing, stating that the appellate court overlooked the provisions of section 59.46, Florida Statutes (2011).
Section 59.46 states that:
In the absence of an expressed contrary intent, any provision of a statute or of a contract entered into after October 1, 1977, 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.
The Florida appellate court denied the motion for two reasons.
First, Goldberg’s motion for fees did not refer to section 59.46, and only sought fees under the promissory note and guaranty.
Second, section 59.46 only applies when a contract or statute provides for payment of fees, but is not an independent basis for appellate fees in Florida. Because Goldberg had no basis for fees in statute or contract, Goldberg was not entitled to appellate attorneys’ fees.
Therefore, whether your appeal is from a Florida probate, trust, or guardianship order or from any other appealable order, you are not automatically entitled to attorneys fees. You have to file a timely motion in the appellate court, and you must state the grounds upon which you assert that you are entitled to an award of Florida appellate attorneys fees.