Who Decides Appellate Attorney’s Fees in Florida — and Why Did I Just Ask Two Different Courts to Handle It?

Why Do Both the Appellate Court and Trial Court Weigh In on Fees?

Excellent question, Counselor. And one that digs right into the oddly specific world of Florida appellate procedure, where form matters, words are weapons, and splitting hairs is basically a competitive sport.

If you've ever seen a motion that says “We respectfully request this Court retain jurisdiction to determine entitlement to appellate attorney’s fees and remand for the trial court to determine the amount and costs,” you might think:

“That sounds like one too many cooks in the judicial kitchen.”

But fear not — this isn’t a jurisdictional tug-of-war. It’s actually a beautifully choreographed two-step, expressly required by Florida Rule of Appellate Procedure 9.400. Let’s unpack it.

The Appellate Court Determines Entitlement to Attorney’s Fees

Only the appellate court has the authority to determine whether your client is entitled to appellate attorney’s fees in the first place. Florida Rule of Appellate Procedure 9.400(b) is pretty clear on this point:

“The assessment of attorneys' fees may be remanded to the lower tribunal. If attorneys' fees are assessed by the [appellate] court, the lower tribunal may enforce payment.”

Translation? You don’t get to skip this step. Entitlement is a legal question and belongs to the appellate court. Full stop.(1)

Why Remand to the Trial Court for the Amount?

Because appellate judges aren’t math majors, and they sure as hell aren’t holding an evidentiary hearing in their chambers.

Once the DCA determines that your client is entitled to fees, it punts the ball back downfield — remanding the case to the trial court to determine:

• The reasonable amount of appellate fees

• Any taxable appellate costs

  
  

This is the part where someone gets to dig into billing records, evaluate time entries, apply Rowe and Quanstrom factors (2), and maybe even hold a mini-trial about whether you really needed to spend 6.5 hours writing a “Table of Authorities.”

The trial court (having lived with the case and probably already slightly resents everyone) is far better equipped to do that.

Why Ask for Both in the Same Motion?

Here’s the magic:

• “Retain jurisdiction to determine entitlement” = Respect the hierarchy. The appellate court alone decides whether fees are even on the table.

• “Remand to the trial court for determination of amount” = Practicality. Let the folks with the calculator and courtroom do the messy math.

  
  

It’s not redundant. It’s procedurally required, and appellate judges expect it.

In other words:

🔍 Question	👩‍⚖️ Who Decides?	🤷 Why?
Should you get fees at all?	Appellate Court	It’s a legal ruling.
How much should those fees be?	Trial Court (on remand)	It’s a factual determination.

Example: How the Appellate Court Usually Words It

If you're lucky enough to win the motion (and if your brief didn’t read like a 1L outline), the appellate court's order might say something like:

“Appellee’s motion for attorney’s fees is granted; entitlement is established pursuant to [underlying statute or contract]. The cause is remanded to the trial court to determine the reasonable amount of appellate attorney’s fees.”

Translation: Boom. You did the dance correctly.

Pro Tip: Why This Matters for Reputation (and Results)

Judges — especially appellate judges — notice sloppy motions. Forgetting to split the two steps can make you look like you either:

• Don’t understand appellate jurisdiction (🤡), or

• Just want fees without having to prove them (🙄)

Neither is a good look.

Also? Getting too aggressive about fees up front (without preserving the record) can tank your chances later. Play the long game, file correctly, and give each court the job it’s actually allowed to do.

Final Thought: Because Procedure Is a Battlefield

In short, when you ask for both — retention for entitlement, and remand for amount — you’re not being redundant. You’re being procedurally sophisticated, jurisdictionally respectful, and just a little bit clever.

Which is probably why you’re reading this blog instead of TikTok.

Now go forth and brief like the appellate badass you are. And don’t forget: Judges have long memories.

Sources:

(1) See Gieseke v. Gieseke, 499 So.2d 839, 839 (Fla. 4th DCA 1986) (indicating that the propriety of an award of appellate attorney's fees is a prerogative of the appellate court). The rule provides that the appellate court may remand the case to the lower tribunal to assess the actual amount of attorney's fees. Computer Task Grp., Inc. v. Palm Beach Cnty., 809 So. 2d 10, 11 (Fla. 4th DCA 2002). Without a remand from the appellate court, the trial court lacks authority to award appellate attorney's fees. See Foley v. Fleet, 652 So.2d 962, 963 (Fla. 4th DCA 1995).

(2) Florida Patient’s Comp. Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985); Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990)