        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

  GERALD A. PAUL, as Trustee of The Gerald A. Paul Revocable Trust,
        and THE GERALD A. PAUL REVOCABLE TRUST,
                           Appellants,

                                      v.

                 GADI AVRAHAMI and ANDREW PAUL,
                            Appellees.

                              No. 4D18-1461

                            [February 20, 2019]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach   County;    Peter   D.    Blanc,     Judge;   L.T.   Case     No.
502009CA018847XXXXMB.

  Ronald M. Gaché and Scott A. Simon of Shapiro, Fishman & Gaché,
LLP, for appellant.

   Roderick F. Coleman, Boca Raton, for appellee Gadi Avrahami.

GERBER, C.J.

   We affirm the trial court’s denial of appellants’ request to recover their
appellate attorney’s fees arising from their successful first appeal in this
case, described more fully in Paul v. Avrahami, 216 So. 3d 647 (Fla. 4th
DCA 2017).

    By appellants’ own admission, appellants had no basis to file a motion
for appellate attorney’s fees in the first appeal under Florida Rule of
Appellate Procedure 9.400(b) on the ground that appellee’s response to the
first appeal was frivolous or in bad faith, because such a ground is not
permissible for recovery under rule 9.400(b). See Fla. R. App. P.
9.400(b)(1) (“With the exception of motions filed pursuant to rule 9.410(b), a
motion for attorneys’ fees shall state the grounds on which recovery is
sought and shall be served not later than . . . the time for service of the
reply brief . . . .”) (emphasis added); Jarrette Bay Inv. Corp. v. BankUnited,
N.A., 207 So. 3d 345, 347 (Fla. 3d DCA 2016) (“According to the plain
language of [Florida Rule of Appellate Procedure] 9.410(b), parties seeking
appellate fees as a sanction pursuant to section 57.105 are required to
proceed pursuant to rule 9.410(b), not rule 9.400(b). Indeed, the prefatory
clause of rule 9.400(b)—the procedural rule governing fees with a basis
other than section 57.105—expressly makes the rule inapplicable to
motions proceeding under rule 9.410(b).”).

   Also, as is undisputed from the record, this court did not enter an
award of appellate attorney’s fees on its own motion in the first appeal
under Florida Rule of Appellate Procedure 9.410(a) (“After 10 days’ notice,
on its own motion, the court may impose sanctions for any violation of
these rules, or for the filing of any proceeding, motion, brief, or other paper
that is frivolous or in bad faith. Such sanctions may include . . . attorneys’
fees, or other sanctions.”).

   That leaves Florida Rule of Appellate Procedure 9.410(b), which permits
a party to “seek[] an award of attorneys’ fees as a sanction against another
party or its counsel pursuant to general law.” Fla. R. App. P. 9.410(b)(1).
Rule 9.410(b) (2018) provides, in pertinent part:

       (3) Initial Service. A copy of a motion for attorneys’ fees as a
       sanction must initially be served only on the party against
       whom sanctions are sought. That motion shall be served no
       later than the time for serving any permitted response to a
       challenged paper or, if no response is permitted as of right,
       within 15 days after a challenged paper is served or a
       challenged claim, defense, contention, allegation, or denial is
       made at oral argument. . . .

       (4) Filing and Final Service. If the challenged paper, claim,
       defense, contention, allegation, or denial is not withdrawn or
       appropriately corrected within 21 days after initial service of
       the motion under subdivision (3), the movant may file the
       motion for attorneys’ fees as a sanction with the court (a) no
       later than the time for service of the reply brief, if applicable,
       or (b) no later than 45 days after initial service of the motion,
       whichever is later.

(emphasis added). 1

   In the first appeal, appellants did not serve a motion for appellate
attorney’s fees under rule 9.410(b) in response to appellee’s answer brief,


1   Rule 9.410’s current version, effective January 1, 2019, contains minor modifications
to subsections (a) and (b) which are not material to this opinion.

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i.e., the “challenged paper.” Thus, appellants waived their opportunity to
seek their appellate attorney’s fees as a sanction under rule 9.410(b).

  Appellants’ initial brief here argues that they could not have served a
motion for appellate attorney’s fees under rule 9.410(b). According to
appellants:

         [W]hile the Answer Brief is the only substantive “paper”
      [appellee] filed in the [first appeal], [appellants] did not
      “challenge” it under Fla. R. App. P. 9.410[(b)](4) because
      [appellants] did not believe [the answer brief] was so devoid of
      merit as to warrant sanctions for its filing on its own,
      especially considering the low rate of filing and success of
      appeals of denials of § 57.105 motions (and corresponding
      limited case law on the subject). After all, since [appellants]
      were the ones appealing the trial court’s [] Order, [appellee]
      seemed to have a reasonable basis to accept the trial court’s
      ruling and oppose the [first appeal].

          Moreover, by the time [appellee] filed his Answer Brief,
      [appellants] had already incurred most of their appellate
      attorneys’ fees in reviewing, researching and drafting their
      Initial Brief, such that any Rule 9.410 motion they might have
      filed at that time could have only resulted in the recovery of
      the fees they incurred in their preparation of their Reply Brief.
      In that case, despite raising the same frivolous (and
      sanctionable) arguments in both the trial court and this
      Court, [appellee] could never be liable for the most significant
      attorneys’ fees [which appellants] incurred in opposing those
      arguments, i.e., the attorneys’ fees they incurred on their
      Initial Brief.

          Taking it one step further, what if [appellants] had served
      a Rule 9.410 motion and, in response, [appellee] actually
      withdrew his [Answer Brief] within the 21-day safe harbor
      period? In that instance, too, [appellants] would not be able
      to recover any of the fees they incurred in preparing their
      Initial Brief, as that is the whole point of the “safe harbor”
      period.

          Thus, under any possible scenario, [appellants] could not
      have properly filed a Rule 9.410 motion directed to [appellee’s]
      one and only “challenged paper,” i.e., his Answer Brief, in the
      [first appeal], which would have enabled them to recover their

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      [appellate attorneys’] fees [as a sanction] for the [first appeal].
      Understandably, it appears Rule 9.410 was not designed to
      address this type of situation, where the losing party below
      asserts the winning party’s entire position on appeal is
      sanctionable. It is for this reason there was simply no motion
      [which appellants] could have filed in this Court [in the first
      appeal] that would have assured them their ability to recover
      their [appellate attorney’s] fees [as a sanction] for the [first
      appeal].

(emphasis in original).

   We disagree with appellants’ argument as applied in this case. While
we appreciate appellants’ candor in recognizing that appellee’s answer
brief in the first appeal may not have been “so devoid of merit as to warrant
sanctions for its filing on its own,” that answer brief was the only
“challenged paper” available in the first appeal in response to which
appellants could have served and filed a rule 9.410(b) motion for appellate
attorney’s fees as a sanction. Although appellants’ choice not to have
served and filed a rule 9.410(b) motion may or may not have been the
correct choice, appellants were bound by that choice, resulting in the
waiver of their opportunity to seek their appellate attorney’s fees as a
sanction under rule 9.410(b).

    If appellants had served and filed a rule 9.410(b) motion, then the
questions of whether we would have granted such a motion, and if granted,
what appellate attorney’s fees as a sanction we could have awarded, would
have been ripe for our consideration. See Boca Burger, Inc. v. Forum, 912
So. 2d 561, 571 (Fla. 2005) (“[A]ppellate counsel . . . has an independent
ethical obligation to present both the facts and the applicable law
accurately and forthrightly. This will sometimes require appellate counsel
to concede error where, although trial counsel obtained a favorable result,
either the facts were not as represented to the trial court or the law is
clearly contrary to the appellee’s position and no good-faith basis exists to
argue that it should be changed.”).

   However, those questions must go unanswered in this case. In this
case, because this court, in the first appeal, did not enter an award of
appellate attorney’s fees under rule 9.400(b), 9.410(a), or 9.410(b), the trial
court, on remand of the case following the first appeal, was correct in
denying appellants’ request to recover its appellate attorney’s fees arising
from the first appeal.

   Affirmed.

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CIKLIN and KUNTZ, JJ., concur.

                           *      *        *

   Not final until disposition of timely filed motion for rehearing.




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