11 Fla. L. Weekly Supp. 307a
Attorney’s fees — Appellate — Insurance — Prevailing party — Award of appellate fees must await determination of ultimate prevailing party in litigation — Motion — Timeliness — Motion for appellate fees served at time of reply brief was tardy where brief was served more than twenty days after answer brief without benefit of request for extension
NATIONWIDE PROPERTY & CASUALTY INSURANCE COMPANY, Appellant, vs. LASSWELL CHIROPRACTIC CENTER (as assignee of Laurence Brindley), Appellee. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County. Case No. 03-3092. Division X. L.C. Case No. 01-9528-SC. December 17, 2003. James D. Arnold, Judge. Counsel: Charles Tyler Cone, Fowler White Boggs Banker, P.A., Tampa, for Appellant. Bradley Souders, Tampa, for Appellee.
ORDER ON COMPETING MOTIONS FOR APPELLATE ATTORNEY’S FEES AND COSTS
THIS CAUSE is before the Court on both Appellant’s and Appellee’s Motions for Appellate Attorney’s Fees and Costs. Because of the nature of this Court’s decision on appeal [11 Fla. L. Weekly Supp. 203a], neither party is clearly a prevailing party, and a formal award of appellate attorney’s fees to the prevailing party must await determination of ultimate prevailing party in litigation. Stringer v. Katzell, 695 So.2d 369 (Fla. 4th DCA 1997).
With respect to Appellant’s motion for fees and costs, this Court determines that it is tardy. The time to file a motion for appellate attorney’s fees is not later than the time for service of the reply brief. See Florida Rule of Appellate Procedure 9.400(b). While Appellant did serve its motion at the time the reply brief was served, it has not escaped the Court’s notice that the reply brief was tardy. Appellee’s answer brief was served on August 17, 2003; Appellant’s reply was served more than twenty days thereafter, without benefit of a request for extension, on October 3, 2003. See Florida Rule of Appellate Procedure 9.210(f). Although the Court accepted the reply brief, it rejects the motion for fees and costs as untimely.
Appellee’s motion for costs and fees is timely. So that the trial court has authority to consider the matter at the appropriate time, in accordance with Foley v. Fleet, 652 So.2d 962 (Fla. 4th DCA 1995), this Court grants Appellee’s motion conditioned on his ultimately prevailing in litigation.
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