One of the questions I get asked most often by new clients is whether someone who files a lawsuit in Florida (or is sued in Florida) can win their attorney’s fees from the opposing party. Like many legal topics the answer is “it depends.” I hate giving this answer, which is why I look so serious in the picture on the right. Let’s go through the basic parameters:
I. Default Rule: All Parties Pay Their Own Attorney’s Fees.
Unless an exception applies, all parties are required to pay their own attorney’s fees. This is the “default” rule in Florida litigation. However, there are a lot of exceptions. Let’s look at the exceptions which allow the “prevailing party” to recovery their own attorney’s fees from the other side.
A. An Applicable Statute Shifts the Fees
When you file a lawsuit in Florida, you may sue someone stating one or more common law claims or statutory claims or a combination of them. When you sue under a particular statute, that statute may create an exception allowing for the prevailing party to recover their attorney’s fees from the non-prevailing party. Some common fee-shifting statutes in Florida business litigation include the Florida Deceptive and Unfair Trade Practices Act, the Florida Uniform Trade Secrets Act, the Florida Civil Theft Statute and the Restraint of Trade/Restrictive Covenant statute. Thus, if you file and successfully pursue a claim under a statute permitting the recovery of attorney’s fees (or defend one of these claims), you can potentially recover your attorney’s fees as related to the prosecution or defense of that particular cause of action.
B. A Contract Shifts the Fees
Where litigation involves a contractual dispute, the terms of the contract generally dictate the relationships and the obligations of each party to the other. Business contracts often contain an attorney’s fees shifting provision which contains language that states, for instance: The prevailing party in any litigation related to this Contract shall be entitled to recover from the non-prevailing party reasonable attorney’s fees and costs related to such litigation.
Florida courts will enforce these provisions and allow a party who wins the lawsuit to recover their attorney’s fees from the loser. In fact, Florida statutes go one step further and state that if there is a contract which provides prevailing party attorney’s fees recovery for the benefit of only one party, Florida law will permit either party to recovery from the other. So, for instance, if an attorney’s fees provision in a contract states “If Party A to this contract prevails in any litigation related to this Contract, Party A shall be entitled to recover its attorney’s fees from Party B.” The contract is only written to protect Party A, but in Florida, Party B is still in luck. Assuming this one-sided provision is in a contract and Party B wins the contract-related litigation, Florida law (Fla. Stat. 57.105(7)) provides the following provision which will allow Party B to recover its attorney’s fees from Party A:
(7) If a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract. This subsection applies to any contract entered into on or after October 1, 1988.
This second scenario leads us into the next section, where an applicable rule applies to shift attorney’s fees from one party to the other.
C. A Rule of Procedure Shifts the Fees
Sometimes there is litigation which does not allow for an opportunity to recover attorney’s fees by contract or statute, but during the court of the litigation, a Rule applies to permit one party to recover some or all of their reasonable attorney’s fees from the other. One example may be if there is a party which has abused the rules of discovery during the course of the litigation and the Court, as a sanction, orders the offending party to pay the fees of the non-offending party related to the efforts which were taken to bring the offending party into compliance. Another example is where a litigant has offered an effective offer of judgment pursuant to Fla. Stat. 768.79 and Fla. R. Civ. P. 1.442. If such offer is rejected, and the offering party ultimately recovers 25% more than the amount of the offer, the offering party may be entitled to a recovery of their attorney’s fees from the effective date of the rejection of the offer. Additionally, Fla. Stat. 57.105 allows a party who follows the applicable rules in defending a frivolous claim (or fighting a frivolous defense) to recover attorney’s fees if the court later determines that the complaint or a defense was, in fact, frivolous.
Generally, a party can use these rules to their advantage to increase negotiating leverage during litigation and, if successful, recover attorney’s fees at the conclusion of the case.
III. Procedure for Recovery of Attorney’s Fees.
A party seeking to recover attorney’s fees as part of a Florida business litigation case, generally must include such a request in the initial pleadings. The case is then litigated. At the conclusion of the case, the party requesting attorney’s fees generally files a motion to determine entitlement to the recovery of their attorney’s fees. If the court finds that the party is entitled to their attorney’s fees under a statute, contract or rule, the court will grant the motion. Then a second evidentiary hearing usually occurs where one party will present evidence of the attorney’s fees incurred and that such fees were reasonable under the circumstances. The court will ultimately make a determination of the reasonableness of the attorney’s fees (including the rate charged and the hours billed), which analysis includes a number of factors. The award of attorney’s fees is then added to the judgment (for a plaintiff) or (if there was a defense verdict) a judgment is entered against the losing party for the amount of the fees.
Of course, each legal matter is unique and the above-description is intended simply to be a general outline. If you have a litigation matter and are concerned about the recovery of your attorney’s fees, contact us for a free initial consultation. We look forward to hearing from you!