Yes. A pro se litigant may be responsible or “liable” on appeal for the opposing party’s attorney’s fees, if the opposing party is represented by an attorney (or is an attorney). For the opposing party to seek attorney’s fees in an appeal, there has to be a basis for awarding such fees in a statute and/or in a contract between the parties. Also, a party usually has to win, or “prevail,” in the appeal before he or she will be entitled to an award of appellate attorney’s fees. One exception is in family law cases, where, in some cases, appellate attorney’s fees may be awarded based on the parties’ relative financial need and ability to pay. See Section 61.16, Florida Statutes.
If there is a basis in a statute or a contract for awarding attorney’s fees in the lower tribunal, that same statute or contract usually can also be a basis for an award of appellate attorney’s fees. See Section 59.46, Florida Statutes. In the case of Dade County v. Pena, 664 So. 2d 959 (Fla. 1995), the court explained: “In the absence of an expressed contrary intent, any provision of a statute or of a contract . . . 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.”
Just a few examples of some Florida Statutes that provide for an award of attorney’s fees include:
1. Section 57.105(1), Florida Statutes (regarding attorney’s fees to prevailing party for an opposing party’s frivolous claims or defenses which had no basis in law or fact);
2. Section 61.16, Florida Statutes (regarding attorney’s fees based on relative financial need in family law matters);
3. Section 78.20, Florida Statutes (regarding attorney’s fees to prevailing defendant in a replevin action);
4. Section 83.49(3)(c), Florida Statutes (regarding attorney’s fees to prevailing party in residential landlord-tenant dispute over security deposit);
5. Sections 120.69(7) and 120.595, Florida Statutes (regarding attorney’s fees to prevailing party in some circumstances in certain administrative law cases);
6. Section 448.08, Florida Statutes (regarding attorney’s fees to prevailing party in an employee's action for lost wages).
To seek an award of attorney’s fees for an appeal, the party’s attorney would file a motion for attorney’s fees in the appellate court in accordance with Florida Rule of Appellate Procedure 9.400(b). Generally, a motion for attorney’s fees in an appeal has to be filed no later than the time for service of the reply brief, or in original proceedings, the time for service of the petitioner’s reply to the response to the petition. The motion is required to state the legal basis for seeking attorney’s fees (i.e., a basis in a statute and/or contract).
