DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
THE BANK OF NEW YORK, as Trustee for the Benefit of CWMBS, INC.,
CHL Mortgage Pass-Through Trust 2007-19 Mortgage Pass-Through
Certificates, Series 2007-19,
Petitioner,
v.
RICHARD VON HOUTMAN, et al.,
Respondents.
No. 4D15-2771
[November 25, 2015]
Petition for writ of certiorari to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Barry J. Stone, Senior Judge; L.T.
Case No. CACE 08-31733.
Adam M. Topel, J. Randolph Liebler, Christine M. Manzo and
Katherine A. Coba of Liebler, Gonzalez & Portuondo, Miami, for
petitioner.
Bruce Jacobs, Court E. Keeley, Amida U. Frey and Anna C. Morales of
Jacobs Keeley, PLLC, Miami, for respondent Richard Von Houtman.
ON MOTION FOR ATTORNEYS’ FEES
PER CURIAM.
The Bank of New York as Trustee for the Benefit of CWMBS, Inc., CHL
Mortgage Pass-Through Trust 2007-19 Mortgage Pass-Through
Certificates, Series 2007-19 (“the Bank”), petitioned this court for a writ
of certiorari to review a trial court discovery order. After we issued an
order dismissing that petition, respondent filed a motion for appellate
attorneys’ fees. Because it was not timely filed pursuant to Florida Rule
of Appellate Procedure 9.100(k), we deny the motion.
As the Bank petitioned this court for a writ of certiorari, we have
original jurisdiction. See Fla. R. App. P. 9.100(a)-(b). Motions for
attorney’s fees in original proceedings must be served “not later than . . .
the time for service of the petitioner’s reply to the response to the
petition.” Fla. R. App. P. 9.400(b)(2). “Under rule 9.100, parties may not
respond to the petition unless the appellate court issues an order to
show cause.” Advanced Chiropractic & Rehab. Ctr., Corp., 140 So. 3d
529, 534 (Fla. 2014). Here, we issued an order to respondent to show
cause why the petition should not be granted, and he later filed a
response within the time period allotted.1
If a response has been filed, rule 9.100(k) states that “[w]ithin 20 days
thereafter or such other time set by the court, the petitioner may serve a
reply . . . .” Fla. R. App. P. 9.100(k). Thus, where a response has been
filed by the respondent in cases of original jurisdiction, any motion for
attorneys’ fees must be filed within twenty days of the response, or
within any other time set by the appellate court.
Here, respondent failed to timely file the motion in accordance with
the deadlines established in these rules. Accordingly, the motion for
appellate attorneys’ fees is denied.
Motion for fees denied.
WARNER, DAMOORGIAN and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
1 In Advanced Chiropractic & Rehabilitation Center, Corp., the Florida Supreme
Court held that the version of Florida Rule of Appellate Procedure 9.400 then in
effect did not apply to original proceedings. 140 So. 3d at 537. Subsequently,
the court created rule 9.400(b)(2). See In re Amendments to Fla. Rules of
Appellate Procedure, No. SC14-227, 2014 WL 5714099, at *19 (Fla. Nov. 6,
2014).
2