Florida - FEES (including Attorney's Liens)
Supreme Court rules that prevailing party fees are recoverable under reciprocal provisions of F.S. 57.105 by borrower who succeeded in having plaintiff’s mortgage foreclosure suit dismissed on grounds that included lack of standing. [Added 1/16/19]
Nationstar sued Glass to foreclose on a reverse mortgage. After motions and complaint amendments, ultimately the trial court granted Glass’s motion to dismiss. Glass had alleged several grounds for her motion, and the order granting dismissal “did not provide any reasoning for its decision.” Glass’s motion for prevailing party fees under F.S. 57.105 was denied. Nationstar appealed, but subsequently voluntarily dismissed the appeal. Glass sought appellate fees, but the Fourth DCA denied that motion “based not on the voluntary dismissal on appeal but instead on the ancillary issue of [Glass’s] successful dismissal of the complaint at trial.” See Nationstar Mortgage LLC v. Glass, 219 So.3d 896 (Fla. 4th DCA 2017).
Glass sought Supreme Court review alleging direct conflict with Bank of New York v. Williams, 979 So.2d 347 (Fla 1st DCA 2008), “on the question of whether a voluntary dismissal provides a basis for being considered the prevailing party for the purpose of appellate attorney fees.” Exercising its conflict jurisdiction, the Court quashed the Fourth DCA’s Glass decision.
The Court commented that the Fourth DCA’s “conclusion that Glass was not entitled to appellate attorney’s fees after Nationstar voluntarily dismissed its appeal was predicated on Glass’s argument in the trial court that Nationstar failed to adequately allege that it had standing to foreclose her mortgage. This reasoning both misstates the basis of the trial court’s ruling on Glass’s motion for dismissal and fails to address Glass’s motion for appellate attorney’s fees based on the voluntary dismissal.”
The Court’s view was that Glass prevailed in the trial court because of pleading defects by Nationstar, and so it was “inaccurate to state that Glass was successful only for demonstrating that Nationstar lacked standing.” Rather, “[e]ven if the trial court’s dismissal was based on lack of standing, it was not based on a finding that Nationstar did not hold the note but on a finding that Nationstar’s complaint was legally insufficient for failure to properly demonstrate the chain of title.”
For purposes of prevailing party fee awards based on the reciprocal provisions of F.S. 57.105, there is a distinction between the situation where a contract never existed and one where a contract existed but was later found to be rescinded or unenforceable. “Our caselaw is clear that a party is precluded from claiming attorney’s fees under a contract that has been found to have never existed. . . . However, we have also held ‘that when parties enter into a contract and litigation later ensues over that contract, attorney’s fees may be recovered under a prevailing-party attorney’s fee provision contained therein even though the contract is rescinded or held to be unenforceable.’” (Citations omitted.)
The Court distinguished Bank of New York Mellon Trust Co. v. Fitzgerald, 215 So.3d 116 (Fla. 3d DCA 2017), which had been relied upon by the Fourth DCA. In Fitzgerald, the trial court specifically found that the plaintiff failed to establish assignment of the mortgage or delivery of the note to it. “This is unlike the present case where the trial court made no specific findings and Glass alleged that Nationstar failed to demonstrate a step in the transfer or assignment of the mortgage and note as one of four reasons the trial court should dismiss the complaint.”
The Court concluded: “In the instant case, a reverse mortgage contract clearly existed between Glass and Countrywide Mortgage Company, which was assigned from its successor in interest, Bank of America, to Nationstar Mortgage. Even if we assume that Glass prevailed on her standing argument, the contract was merely unenforceable by Nationstar because it failed to demonstrate that it was the rightful successor in interest. We therefore conclude that, had the issue been presented as an issue on appeal to the Fourth District, Glass would be entitled to attorney’s fees at the trial level.” (Footnote omitted.) Glass v. Nationstar Mortgage, LLC, __ So.3d __ (Fla., No. SC17-1387, 1/4/2019), 2019 WL 98152.
Lawyer suing former client for unpaid fees in breach of contract action not required to present expert testimony as to reasonableness of fees, per Fourth DCA. [Added 1/7/19]
Attorney and Client entered into a retainer agreement for a federal mail and securities fraud case. The agreement called for a $50,000 initial non-refundable retainer and a $50,000 flat fee for a trial lasting 4 days or less. If the trial went longer than 4 days, there would be an additional per-day fee. After the case concluded, Attorney billed Client. After payments and adjustments, Client still owed almost $84,000. Client signed a promissory note for the unpaid balance. When Client failed to make payments, Attorney sued for breach of contract. “Client responded to the complaint, but did not challenge the reasonableness of the flat fees charged by Attorney.”
At the breach of contract trial, Attorney introduced the retainer agreement, invoice, and promissory note. Client raised no substantive objections. Attorney testified as to his training and experience, the work he did for Client, and the balance due. Client moved for a directed verdict on the ground that Attorney “failed to present independent expert testimony to establish the reasonableness of the attorney’s fees.” Attorney responded that expert testimony was not required in a breach of contract suit over a flat fee and that the record evidence justified his fees. The trial court granted Client’s motion for directed verdict “on the grounds that Attorney was required to present independent expert testimony to establish the reasonableness of the fees.” Attorney appealed.
The Fourth DCA reversed. A party seeking recovery of fees from an opposing party in the same action is required to present expert testimony as to reasonableness. “If, however, a party is seeking to recover previously incurred attorney’s fees as an element of compensatory damages in a separate breach of contract action, that party is not required to provide an independent expert witness to corroborate the reasonableness of the fees.” The court went on to state that “because Attorney sought to recover flat fees and Client not only acknowledged the obligation when he executed the promissory note but also failed to raise any substantive objections to the evidence at trial, Attorney was not required to establish the overall reasonableness of the fees in his breach of contract action.” (Citations omitted.) Valentin Rodriguez, P.A. v. Altomare, __ So.3d __ (Fla. 4th DCA, No. 4D18-0785, 12/19/2018), 2018 WL 6681734.
First DCA rules that action for account stated will not support award of reciprocal fees based on underlying credit card contract, and certifies conflict with Second DCA. [Added 1/2/19]
Plaintiff Portfolio sued two Defendants in county court for unpaid credit card debt on a theory of account stated. Plaintiff did not attach a credit card contract nor plead entitlement to attorney’s fees in the event that it prevailed. Defendants answered, asserted affirmative defenses, and requested reciprocal fees pursuant to F.S. 57.105(7).
Defendants prevailed at trial. They moved for fees, which the court initially granted. Portfolio moved for a new trial based on an intervening appellate decision from the circuit court holding that the reciprocal fees statute does not apply “in a case in which a creditor proceeds under an account stated cause of action independent of any written credit card agreement the creditor has with a debtor.” Accordingly, the county court granted Plaintiff’s motions for new trial and denied fees to Defendants. The county court certified the issue to the First DCA as a matter of great public importance.
The First DCA affirmed. The court explained that “an action for account stated is based on a new promise to pay that is separately enforceable without regard to any written contract from which the debt may have originated.” In this case, Portfolio chose to proceed under an account stated cause of action. “Because the action framed by Portfolio in these cases did not rely on the credit contracts containing the unilateral fee provision, we conclude that the debtors are not entitled to reciprocal fees under section 57.105(7) by virtue of those contracts. To rule otherwise would undermine Portfolio’s ability to choose its cause of action.”
The First DCA certified conflict with the Second DCA (Bushnell v. Portfolio Recovery Associates, LLC, __ So.2d __ (Fla. 2d DCA, No. 2D17-429, 9/14/2018), 2018 WL 4374251). Ham v. Portfolio Recovery Associates, LLC, __ So.3d __ (Fla. 1st DCA, Nos. 1D17-3112, 1D17-3113, 11/30/2018), 2018 WL 6253294.
A “notice of intention” to file a charging lien that was filed by a discharged lawyer after the final judgment was entered was untimely and thus not enforceable. [Added 12/31/18]
Lawyer represented Wife in a dissolution case. Lawyer was replaced after the trial court entered a final judgment of dissolution and while the direct appeal of that judgment was pending. Lawyer “then filed a notice of intention to impose and enforce a charging lien [emphasis by court]. The trial court issued a post-dissolution support and fee order, and that led to a second appeal. Once that appeal was resolved, [Lawyer] moved to adjudicate and impose his charging lien for work performed prior to the entry of the original final judgment. The trial court determined that it was timely.”
Husband petitioned for a writ of prohibition. The Fourth DCA granted the petition and quashed the trial court’s order, for two reasons. “First, [Lawyer] failed to file the notice of charging lien before the trial court issued the final judgment. . . . Second, the judgment denied both parties’ fee requests and therefore did not reserve jurisdiction to adjudicate fees.” Reidy v. Reidy, __ So.3d __ (Fla. 4th DCA, No. 4D18-2525, 11/28/2018), 2018 WL 6204116.
Court erred in imposing fees as sanction under F.S. 57.105(1) because amount of sanction was determined by argument of counsel, with no billing records admitted into evidence. [Added 12/27/18]
Wife moved for sanctions under F.S. 57.105(1) based on Husband’s third motion to vacate. The trial court found it meritless and ordered fees as a sanction under the statute. Husband appealed, contending that the court erred in determining the amount of fees to award the Wife’s counsel “without receiving any testimony or other evidence.” The Fourth DCA agreed and reversed in part.
It was error to determine the fee award solely on the argument of counsel. “Although counsel provided a copy of certain billing records, those records were not admitted into evidence. As a result, the billing records were not competent evidence to support the court’s determination of the amount of sanctions.” The appellate court remanded for an evidentiary hearing on the amount of fees to be awarded.
In a footnote, the appeals court expressed sympathy with Husband’s contention that the issue was not properly persevered because Husband failed to object to the court’s reliance on unsworn testimony, but cited Brown v. School Board of Palm Beach County, 855 So.2d 1267 (Fla. 4th DCA 2003) in rejecting the argument. Pansky v. Pansky, __ So.3d __ (Fla. 4th DCA, No. 4D15-3940, 11/28/2018), 2018 WL 6204105.
Defendant who prevailed at trial is denied fees under F.S. 768.79 because proposal for settlement was conditioned on plaintiff releasing all claims, including non-monetary claim for specific performance. [Added 12/19/18]
Defendant operated a jewelry concession on a cruise ship. Plaintiff, a passenger, obtained a quote on a 15 to 20 carat loose diamond. Defendant quoted a price for the diamond, and Plaintiff accepted. The problem was that the price was supposed to be per carat, not the entire diamond – a difference of about $4.6 million. When Defendant would not go through with the transaction, Plaintiff filed suit for specific performance (count I), breach of contract (count II), and conversion (count III).
Defendant served Plaintiff with an offer to settle counts II and III. “However, the proposal required a release and dismissal with prejudice as to all of [Plaintiff’s] claims.” (Emphasis by court.) After the jury returned a verdict for Defendant, it moved for fees under F.S. 768.79 based on the unaccepted proposed for settlement. The trial court denied the motion, finding that: (1) it was unambiguous; (2) it was conditioned on a release and dismissal of all claim, monetary and non-monetary; and (3) as a result, the proposal was invalid under Diamond Aircraft Industries, Inc. v. Horowitch, 107 So.3d 362 (Fla. 2013).
Defendant appealed. The Third DCA affirmed. “Although [Defendant]’s proposal for settlement offered to settle only the breach of contract and conversion claims for $75,000, the offer was contingent upon [Plaintiff] executing a release and dismissing with prejudice all of his claims.” (Emphasis by court.) The proposal was intended to resolve all claims, both monetary and non-monetary. F.S. 768.79 applies to civil actions in which the party seeks only monetary damages. As it is in derogation of the common law rule that each party pays its own attorney’s fees, F.S. 768.79 is strictly construed. In Horowitch, “the Florida Supreme Court found that section 768.79 does not apply to cases that seek both equitable relief and damages” (such as specific performance). Starboard Cruise Services, Inc. v. DePrince, __ So.3d __ (Fla. 3d DCA, No. 3D16-2009, 11/21/2018), 2018 WL 6071456.
Party that succeeds in having mortgage foreclosure dismissed because lender is not entitled to enforce contract cannot recover fees based on provision in that contract. [Added 12/7/18]
Bank sued Borrowers on a mortgage. Trying to avoid foreclosure, Borrowers accepted an offer to enter a Deed Agreement to tender the property to Bank. The Deed Agreement, unlike the original mortgage agreement, did not mention attorney’s fees. When Borrowers did not comply with the terms of the Deed Agreement, Bank sued to foreclose. At trial Borrowers argued that Bank was estopped to foreclose. The trial court dismissed the suit “based on its finding that the Bank ‘entered into a settlement agreement for a Deed in Lieu of Foreclosure prior to commencement of this action.’”
Borrowers moved for prevailing party fees under a provision in the mortgage and F.S. 57.105(7). Bank objected, asserting that because the Deed Agreement controlled the parties’ relationship, it constituted a novation of the mortgage. Bank also argued that Borrowers were not entitled to fees under the mortgage because Bank failed to establish entitlement to enforce it. The trial court awarded fees to Borrowers.
The Fourth DCA reversed. “[A] party that prevails on its argument that dismissal is required because the plaintiff bank is not entitled to enforce the contract containing the fee provision cannot recover fees based upon a provision in that same contract.” See Nationstar Mortgage LLC v. Glass, 219 So.3d 896, 899 (Fla. 4th DCA 2017), review granted, No. SC17-1387, 2018 WL 2069328 (Fla. Feb. 13, 2018).
Even absent its decision in Glass, the appeals court noted that it “would reach the same conclusion for two reasons. First, by dismissing the Bank’s foreclosure action based on the existence of the Deed Agreement and subsequently enforcing that agreement, the trial court effectively extinguished the mortgage along with the provisions contained therein.” A provision in that extinguished contract would not support a fee award. Additionally, the court concluded that Borrowers “are not the prevailing party.” Borrowers succeeded in having the foreclosure action involuntarily dismissed, but Bank was successful in having the Deed Agreement enforced against Borrowers. “In other words, the litigation essentially ended in a proverbial tie with each party prevailing in part and losing in part.” Wells Fargo, N.A. v. Moccia, __ So.3d __ (Fla. 4th DCA, No. 4D18-0479, 11/7/2018), 2018 WL 5822167.
Supreme Court again cautions lower courts about “nitpicking” proposals for settlement to find ambiguities. [Added 11/1/18]
Gabriel Nunez was driving a vehicle owned by his father (Jairo Nunez) when he struck Allen’s vehicle, which was legally parked in the street. Allen sued Gabriel and Jairo for the damages. Allen served separate proposals for settlement on each defendant. The proposals were identical except for substitution of the defendant’s first name. Neither defendant accepted Allen’s proposal.
Allen prevailed at trial, obtaining a judgment for almost $30,000. He then moved for attorney’s fees based on the unaccepted proposals for settlement. The defendants moved to strike the motion, alleging that paragraph 5 of each proposal was ambiguous and thus unenforceable because it stated that the proposed settlement was “inclusive of all damages claimed by Allen.” The specific language of paragraph 5 was: “5. This Proposal for Settlement is inclusive of all damages claimed by Plaintiff, W. RILEY ALLEN, including all claims for interest, costs, and expenses and any claims for attorney’s fees.” The trial court rejected this claim and granted the motion, finding that the proposals were “sufficiently clear and unambiguous.” The Fifth DCA, however, reversed on the ground that the language in paragraph 5 rendered the proposals ambiguous. Nunez v. Allen, 194 So.3d 554 (Fla. 5th DCA 2016).
Exercising its conflict jurisdiction, a 4-3 majority of the Florida Supreme Court reversed the Fifth DCA decision. The Court noted that it “has not required the elimination of every ambiguity – only reasonable ambiguities,” State Farm Mutual Auto. Ins. Co. v. Nichols, 932 So.2d 1067 (Fla. 2006), and that trial courts are “discouraged from ‘nitpicking’ proposals for settlement to search for ambiguity,” Carey-All Transp., Inc. v. Newby, 989 So.2d 1201 (Fla. 2008). After reviewing a number of DCA decisions, the Court stated: “The reading of Allen’s offers as espoused by [defendants] and the Fifth District was unreasonable under these circumstances and in contravention of this Court’s direction in Nichols. Each proposal clearly and consistently used the singular term ‘PLAINTIFF,’ which was defined as W. Riley Allen in paragraph 2. Moreover, paragraph 3 indicated that each proposal was designed to settle ‘any and all claims of PLAINTIFF against [DEFENDANT],’ which by its clear terms suggested that the only parties to be affected by the proposal would be Allen and the designated [defendant]. In reading the entirety of this proposal, the only reasonable interpretation is that Allen offered to settle his claims with only the [defendant] specified in each respective proposal.”
The Court concluded: “Reading the plain language of Allen’s offers, we hold that these offers to settle his claims against the Respondents were unambiguous. The ‘nitpicking’ of these offers by the district court below to find otherwise unnecessarily injected ambiguity into these proceedings and created more judicial labor, not less.”
A concurring opinion “highlight[ed] the proliferation of litigation surrounding proposals to settle, which runs counter to the entire purpose of these proposals – to reduce litigation” and urged trial courts “to refrain ‘from ‘nitpicking,’’ and find a proposal unenforceable only when there is a reasonable ambiguity as to its meaning.” (Emphasis in original.)
dissenting opinion joined by 3 justices would have decided that the Court lacked jurisdiction because the Fifth DCA’s decision did not expressly and directly conflict with the decisions cited by Allen. Allen v. Nunez, __ So.3d __ (Fla., No. SC16-1164, 10/4/2018), 2018 WL 4784606.
On rehearing, Third DCA concludes that proposal for settlement served on 2 parties was invalid and unenforceable because it did not permit both offerees to independently evaluate or settle their respective claims. [Added 10/19/18]
Atlantic sued Swift and Key Haven for conversion. Atlantic served a proposal for settlement, including a proposed release, on each defendant. Neither defendant accepted. After the court entered judgment in its favor, Atlantic moved for fees pursuant to F.S. 768.79. The court denied the fee motion, agreeing with defendants that the offer was invalid because, among other reasons, it was conditioned on acceptance by both offerees.
The Third DCA affirmed. In Attorneys’ Title Insurance Fund, Inc. v. Gorka, 36 So.3d 646 (Fla. 2010), the Supreme Court invalidated a joint proposal for settlement that one defendant presented to two plaintiffs that was conditioned upon acceptance by both plaintiffs. The proposal was invalid because it was “conditioned such that neither offeree can independently evaluate or settle his or her respective claim by accepting the proposal.” (Citation omitted.) The Gorka rule that a joint proposal for settlement must be structured so offeree can independently evaluate and settle it own respective claim, irrespective of any other offeree’s decision, “has been applied in the absence of language expressly requiring mutual acceptance.”
In this case, the Proposal sought the single sum of $50,000. Although it apportioned the total sum as payments of $25,000 from each offeree, “it does not state how much either party would be required to pay to settle Civil Atlantic’s claim on his or its own.” Further, the proposal required the offerees to execute a general release and provided that the proposal “shall be deemed rejected unless Defendants accept it,” thereby conditioning settlement on Swift and Key Haven’s “mutual acceptance of the offer and joint action in accordance with its terms.” (Citation omitted.) The court concluded: “Because the Proposal deprived Swift and Key Haven of the ability to independently evaluate and accept Atlantic Civil’s offer to settle its claims, we hold that the Proposal is invalid under the dictates of Gorka.” Atlantic Civil, Inc. v. Swift, __ So.3d __ (Fla. 3d DCA, No. 3D15-1594, 10/3/2018) (on rehearing), 2018 WL 4762408.
Court erred in denying motions for fees against indispensable party added to suit against its will and rejected proposals for settlement made under F.S. 768.79 and Fla.R.Civ.P. 1.442. [Added 10/9/18]
Medex filed a suit. The court determined that Policlinica was an indispensable party. Medex added Policlinica as an additional plaintiff, and ultimately Premium, Corvaia, and Ruiz were added as defendants. Ruiz, Corvaia, and Premium served Policlinica with separate proposals for settlement that were not accepted. At trial, the court found in favor of Ruiz against Medex and Policlinica. The court found for Medex and Policlinica against Corvaia and Premium, but “awarded all of the damages to Medex and none to Policlinica.”
Ruiz, Corvaia, and Premium moved for fees against Policlinica pursuant to F.S. 768.79 and Fla.R.Civ.P. 1.442 based on the rejected proposal for settlement. Corvaia and Premium also moved for fees against Policlinica based on their rejected proposals for settlement. Despite finding that that motions were not ambiguous and were made in good faith, the trial court denied the motions. The movants appealed, and the Third DCA reversed.
The trial court denied Ruiz’s motion for fees based on the fact that Policlinica “was forced into this litigation against its will” based on the court’s order and that the purposes of the offer of judgment statute “Policlinica given that settling Policlinica’s claims would not have resulted in eliminating any of the claims to be considered by the Court and therefore would not have resulted in any of the efficiencies the offer of judgment statutes are designed to promote.”
The trial court denied the motions of Corvaia and Premium against Policlinica because “the only reason the final judgment, ‘as a technical matter, does not award damages to Policlinica is to avoid a double recovery and because the [predecessor judge] found that as between the two of them, Medex suffered the damages more directly.’ The trial court concluded that ‘[a]bsent Medex, however, Policlinica would have been awarded all of the damages awarded to Medex.’”
Both of the rulings were erroneous and were reversed. The offer of judgment statute “creates an entitlement to attorney’s fees when the statutory and procedural requirements have been satisfied.” The reasonableness of an offeree’s rejection of an offer is irrelevant. “Here, all of the requirements of both the statute and the rule governing proposals for settlement were met. The only basis for denying entitlement to attorney’s fees is a finding by the trial court that Ruiz, Premium, or Corvaia did not make their offers in good faith or that they made them in bad faith. Because the trial court made neither a finding of bad faith nor a finding that the offers were not made in good faith, its denial of attorney’s fees to Ruiz, Premium, and Corvaia was error.” Ruiz v. Policlinica Metropolitana, C.A., __ So.3d __ (Fla. 3d DCA, Nos. 3D17-1535, 3D17-1523, 9/26/2018), 2018 WL 4608786.
Answering certified question arising from county court order, Second DCA rules that reciprocity provision of F.S. 57.105 applies to action for account stated brought to collect amount due under credit card agreement. [Added 10/1/18]
A county court denied defendant Bushnell’s motion for prevailing party fees in after the plaintiff voluntarily dismissed its action against her for account stated. The defendant was successor in interest to the original creditor on Bushnell’s credit card account. Bushnell’s motion was based on a provision in the credit card agreement for prevailing party fees to the creditor and the reciprocity provision in F.S. 57.105(7). In denying Bushnell’s motion the court certified a question of great public importance to the Second DCA.
The Second DCA rephrased the certified question and reversed. Relying on the “inextricably intertwined” test in Caufield v. Cantele, 837 So.2d 371 (Fla. 2002), the Second DCA concluded: “[I]n an action for account stated brought to collect the amount due under a credit card agreement, the reciprocity provision in section 57.105(7) applies to a properly pleaded request for attorney’s fees made pursuant to the terms of the agreement. As a result, we reverse the order that denied Bushnell’s motion for attorney’s fees and remand for the trial court to determine the reasonable amount of attorney’s fees to be awarded to Bushnell.” Bushnell v. Portfolio Recovery Associates, __ So.2d __ (Fla. 2d DCA, No. 2D17-429, 9/14/2018), 2018 WL 4374251.
Fourth DCA upholds prevailing party fee award to borrower whose argument that foreclosing bank lacked standing was not adjudicated on merits because bank voluntarily dismissed suit. [Added 9/28/19]
Bank filed a foreclosure suit against Borrower. Borrower raised defenses including the Bank’s alleged lack of standing. Bank voluntarily dismissed the suit. Borrower moved for prevailing party fees under F.S. 57.105. The trial court granted fees to Borrower.
Bank appealed. Relying on Nationstar Mortgage LLC v. Glass, 219 So. 3d 896, 899 (Fla. 4th DCA 2017), Bank argued that the fee award was error “because the borrower failed to demonstrate that both he and the bank were entitled to enforce the note and mortgage, emphasizing that the borrower argued to the contrary below by raising the affirmative defense that the bank lacked standing.”
The Fourth DCA affirmed. “[T]here is a difference between prevailing on the merits on a standing issue and an undifferentiated voluntary dismissal of a lawsuit prior to any merits determination. The bank’s voluntary dismissal took this case out of Glass. Standing was never litigated below and the trial court never made a finding that the bank or the borrower were not parties to the contract. Because the borrower did not prevail on his argument that dismissal was required because the bank lacked standing to sue on the contract, he is not precluded from recovering fees based on a provision in the same contract.” Wells Fargo Bank, N.A. v. Elkind, __ So.3d __ (Fla. 4th DCA, No. 4D17-1213, 9/5/2018), 2018 WL 4212149.
Fourth DCA addresses proper method of handling F.S. 768.79 fee award in insurance case where execution on large part of judgment stayed pending outcome of bad faith claim. [Added 9/20/18]
Insured sued Insurer seeking damages under an uninsured motorist (UM) policy that had a limit of $20,000 per accident. Insured’s claim was for 2 separate auto accidents. Insured moved to amend to add a bad faith claim, but that motion was denied without prejudice. Insurer did not accept Insured’s proposal for settlement of $40,000 per claim. The jury rendered a verdict for Insured in the amount of $170,598 for one accident and $84,564 for the other.
Various additional appellate and trial court proceedings ensued. Insured’s motion to add a bad faith claim was granted and the trial court entered a judgment for Insured in the full amount of the jury verdict, but stayed execution on all but $20,000 per accident (the UM policy limits). Insured’s motion for fees pursuant to F.S. 768.79 was granted. The parties agreed to a $200,000 fee award, with Insurer reserving the right to appeal entitlement to those fees.
The Fourth DCA reversed. The appeals court observed that Fridman v. SafeCo Ins. Co. of Illinois, 185 So.3d 1214 (Fla. 2016), “established the appropriate protocol to follow if a plaintiff prevails in a UM action and then elects to pursue a bad faith claim,” as happened in this case. The trial court should enter judgment for the full amount of the insured’s damages, even though the insured must later pursue a bad faith action to recover any amount in excess of policy limits, and limit execution of the judgment to the policy amount. The trial court did that in this case, which meant that “the only enforceable judgment against the insurer at this time, or what is effectively the ‘net judgment’ as section 768.79(6)(b) describes, is for the amount representing the policy limits of $20,000 per accident.” Thus, Fridman compels us to adopt another ‘preferable approach’ in the context of first-party bad faith litigation: waiting until a determination is made on whether the plaintiff proved bad faith claims against an insurer before determining entitlement to an award of attorney’s fees and costs against an insurer under section 768.79. Therefore, we reverse the trial court’s awards of trial and appellate fees and costs, and remand for further proceedings to consider an award pursuant to section 768.79 at the end of the parties’ bad faith litigation.” 21st Century Centennial Ins. Co. v. Walker, __ So.3d __ (Fla. 4th DCA, No. 4D17-2937, 8/29/2018), 2018 WL 4151289.
Not abuse of discretion to award 2.0 multiplier in a first-party, late notice insurance claim case where “minimal” evidence supported finding that relevant market required multiplier. [Added 9/17/18]
Insured filed a claim with Insurer for damage to her home from Hurricane Wilma. Insurer paid $8400 in 2005. Five years later Insured retained a law firm, which filed suit alleging that Insurer breached the contract by not participating in the appraisal process under the policy. During the litigation Insurer filed a proposal for settlement of $2000, which was not accepted. Ultimately Insured’s motion to compel arbitration was granted and the appraisal umpire awarded $27,367 for the claim.
Insured was entitled to fees under F.S. 627.428. At the fee hearing, Insured’s expert testified that these types of first-party, late notice cases have become “very, very difficult” and that insureds “have a difficult time finding qualified and capable lawyers because of the risk that’s involved” in taking these kinds of cases on a contingent fee basis (e.g., lengthy litigation against well-funded adversaries). The expert testified that a multiplier of 1.6 or 1.7 was appropriate. Insured did not attack the expert’s multiplier opinion on cross-examination. The trial court found that a reasonable fee based on hourly rate and time expended was $60,125, then applied a 2.0 multiplier. Insurer appealed.
The Third DCA affirmed. The court rejected Insurer’s contention that contingency fee multipliers are available only in “rare” and “exceptional” cases, explaining at length that the Florida Supreme Court had rejected that position in Joyce v. Federated National Ins. Co., 228 So.3d 1122 (Fla. 2017).
The appeals court further concluded that the trial court’s determination that the relevant market required a multiplier was not an abuse of discretion, despite characterizing the testimony supporting this conclusion as “minimal.” Additionally, it upheld the trial court’s finding that the results obtained warranted a multiplier – Insurer had offered $2000, while the umpire awarded over $27,000. Finally, it also upheld the finding that the complexity of the case warranted a multiplier, noting that “a contingency fee multiplier analysis ‘is properly analyzed through the same lens as the attorney when making the decision to take the case.’” Citizens Property Ins. Corp. v. Laguerre, __ So.3d __ (Fla. 3d DCA, No. 3D15-2411, 8/22/2018), 2018 WL 3999132.
Court has broad discretion to award temporary fees in family matters under F.S. Chapter 61, as well as in “matters which are intricately intertwined with those matters.” [Added 9/14/18]
In a dissolution of marriage action, Husband and Wife entered into a mediated temporary agreement. But shortly after that, Husband amended his dissolution petition to include a civil theft claim alleging that Wife forged his signature on checks from his business account while she was the bookkeeper. Wife then sought additional fees and costs. The court awarded $138,000 in fees and costs, which included $30,000 in fees to defend against the civil theft claim. The court found that the civil theft count “necessarily involves the same and overlapping issues involved in the dissolution action” and so an award of temporary fees for the civil theft claim was proper.
Husband appealed, arguing that there was no statutory basis to award fees for the civil theft claim. The Fourth DCA affirmed.
F.S. 61.16 authorizes an award of fees for actions brought under Chapter 61. In addition, the Fourth DCA “has held that an award of fees is appropriate when the separate action is ‘so intertwined with the dissolution litigation’ that it is “part and parcel of the domestic strife.’” This was such a case. “The civil theft claim involves a business wholly owned and controlled by the husband and concerns the wife’s involvement as the bookkeeper of the business. Additionally, the husband’s accountant testified that the parties used the business account as a personal ‘piggy bank’ and that the husband paid his attorney’s fees and costs out of this account. We also note that the husband raised the litigation stakes by injecting the civil theft claim into the Chapter 61 action, placing treble damages at issue in this dissolution war.” Stein v. Stein, __ So.3d __ (Fla. 4th DCA, No. 4D18-493, 9/12/2018), 2018 WL 4356091.
Orders imposing F.S. 57.105 sanctions against party and counsel reversed due to lack of required factual findings, failure to properly apportion award, and lack of proper notice to those sought to be sanctioned. [Added 9/7/18]
Plaintiffs sued Defendants, alleging fraud in connection with a transportation brokerage agreement. Defendants sent Plaintiffs’ counsel a proposed motion for sanctions, along with a “safe harbor” letter under F.S. 57.105. A few days later Plaintiffs’ counsel filed an emergency motion to withdraw, which was granted shortly thereafter. After successor counsel entered an appearance, Defendants filed a motion for sanctions against Plaintiffs and successor counsel, as well as a motion for summary judgment. Summary judgment was granted for Defendants. Ultimately the trial court granted the motion for F.S. 57.105 sanctions against Defendants and successor counsel.
The Third DCA reversed on several grounds. First, the trial court failed to make the required findings that the action was “frivolous or so devoid of merit both on the facts and the law as to be completely untenable.” (Citation omitted.) Second, the trial court’s orders “appear to improperly impose ‘joint and several liability’ for the full amount upon” Defendants and successor counsel. This was improper under F.S. 57.105(1), which requires apportionment of sanction awards (awards are “to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney”).
Third, Defendants did not give notice in compliance with the statute, which requires that the motion be served on the parties against whom sanctions are sought – here, Defendants and successor counsel. The motion against them was filed with the court, but never served on them. The fact that a notice letter was sent to Defendants’ prior counsel was irrelevant. F.S. 57.105 is in derogation of common law and is strictly construed, and its procedural requirements were not followed. The Third DCA previously held that “providing actual notice, by way of a letter, wasinsufficient to comport with the statutory requirement that a proposed motion be served twenty-one days prior to it being filed with the court.” (Citation omitted.) MC Liberty Express, Inc. v. All Points Services, Inc., __ So.3d __ (Fla. 3d DCA, No. 3D17-0961, 8/8/2018), 2018 WL 3747999.
Court erred in denying motion for fees pursuant to unaccepted proposal for settlement solely because certificate of service was not signed by counsel. [Added 8/31/18]
Flory served a proposal for settlement under F.S. 7.68.79 and Fla.R.Civ.P. 1.442 that was not accepted. The certificate of service was not signed by Flory’s counsel. After a favorable jury verdict, Flory moved for fees pursuant to the unaccepted proposal. The trial court denied the fee motion “solely on the ground that the proposal was invalid because the certificate of service that accompanied it was not signed, which the court found rendered the proposal noncompliant with the requirements of rule 1.442(c)(2)(g).” (Emphasis by court.) Flory appealed.
he Second DCA reversed. The omission of the signature did not render the proposal invalid. “[N]othing in the the plain language of the applicable rules actually required the certificate of service accompanying the proposal for settlement to be signed.” Further, citing Boatright v. Philip Morris USA, 218 So.3d 962 (Fla. 2d DCA 2017), the court noted that the only portion of Fla.R.Jud.Admin. 2.516 (which is referenced in rule 1.442(c)(2)) that is relevant to proposals for settlement “is the form of certificate of service identified in rule 2.516(f).” (Emphasis by court.) Nor is Fla.R.Jud.Admin. 2.515 (requiring “that ‘[e]very document of a party represented by an attorney shall be signed by at least 1 attorney of record’”) relevant; it “is not referenced at all in rule 1.442.”
The appeals court stated that its decision “should not be viewed as an imprimatur of approval of the failure of an attorney to sign a document. However, we cannot impose signature requirements on the parties that are not placed there by the applicable statute and rules, and we cannot find a proposal for settlement invalid for the lack of a signature on the certificate of service when no signature is expressly required. Any such requirement will require an amendment to the applicable rules.” Valle v. Flory, __ So.3d __ (Fla. 2d DCA, No. 2D16-2848, 8/15/2018), 2018 WL 3862655.
Court’s award of "equitable lien” that indirectly awarded attorney’s fees to unsuccessful party is reversed. [Added 8/27/18]
Father and Mother executed a Special Warranty Deed that deed retained a life estate for the grantors and passed the remainder to their 2 children, Son and Daughter. Mother predeceased Father, who died in 2011. Daughter had died in 2009. Daughter’s husband found the deed and obtained an order of summary administration awarding him Daughter’s interest in the property. Son, as personal representative of Father’s estate, sued to nullify the deed based on Mother’s alleged mental infirmity. The trial court agreed with Son’s position and ordered the deed vacated.
Despite the fact that he was the losing party, Daughter’s husband sought an award of fees. The fee request was denied. The court, however, awarded him an “equitable lien” in the amount of the more than $76,000 he spent on attorney’s fees in the matter. Son, as personal representative of Father’s estate, appealed.
The Fifth DCA reversed. “It is a natural corollary that a court may not utilize general, amorphous notions of equity to circumvent such a well-established rule. Neither [Daughter’s husband] nor this Court’s own research has revealed a case approving an equitable lien awarding attorney fees to a non-prevailing party. We decline Appellee’s invitation to create another avenue for courts to award attorney fees.” Simon v. Waters, __ So.3d __ (Fla. 5th DCA, No. 5D17-3355, 8/10/2018), 2018 WL 3795476.
Court erred in entering judgment for fees in favor of party’s lawyer rather than party. [Added 8/9/18]
Plaintiff prevailed at trial and was awarded fees based on a proposal for settlement that was not accepted by Defendant. The trial court awarded fees, but entered judgment in favor of Plaintiff’s lawyer rather than Plaintiff. Defendant appealed on several grounds, including that “the fee judgment was void because it was entered in favor of [Plaintiff’s] attorney, who was not a party to the proceedings.”
The Fourth DCA agreed. The court noted that the offer of judgment statute, F.S. 768.79(6)(a), provides in pertinent part that, “If a plaintiff serves an offer which is not accepted by the defendant, and if the judgment obtained by the plaintiff is at least 25 percent more than the amount of the offer, the plaintiff shall be awarded . . .” (emphasis by court). “[Plaintiff] was the plaintiff in the case, not his attorney. Therefore, a plain reading of the statute compels us to conclude that [Plaintiff]’s attorney cannot personally be awarded fees under section 768.79(6)(a).”
The case was remanded so the trial court could amend the fee judgment. Fournier v. Calvo, __ So.3d __ (Fla. 4th DCA, Nos. 4D13-2611, 4D13-3900, 4D13-3902, 4D13-3903, 7/25/2018), 2018 WL 3569970.
Court erred in awarding law firm expenses incurred in prosecuting charging lien against former client. [Added 8/7/18]
Law Firm represented Client in her personal injury case on a contingent fee basis. Client discharged Law Firm before the contingency occurred. Law Firm filed a charging lien. The trial court found for Law Firm and awarded it an amount that included $21,079 “incurred in prosecuting the lien.” Client appealed, arguing that the court erred in awarding Law Firm amounts incurred in prosecuting the lien.
The Fourth DCA reversed. Noting that its prior decision in Tucker v. Tucker, 165 So.3d 798 (Fla. 4th DCA 2015) “resolved this exact issue,” the appeals court reversed and remanded with directions that the trial court “eliminate the amounts incurred in the prosecution of the charging lien from the judgment.” Abt v. Metro Motors Ventures, Inc., __ So.3d __ (Fla. 4th DCA, No. 4D17-1960, 7/25/2018), 2018 WL 3569390.
Certifying conflict, Fifth DCA rules that motion for sanctions served under section 57.105 must be served in compliance with Fla.R.Jud.Admin. 2.516 even though motion may not be filed until after safe harbor period expires. [Added 8/6/18]
In the trial court, Appellants filed a motion for sanctions pursuant to F.S. 57.105(4). The email service of the motion on Appellees did not comply with Fla.R.Jud.Admin. 2.516. Following expiration of the 21-day safe harbor period, Appellants filed the motion and served it again. The second service complied with rule 2.516. Relying on Matte v. Caplan, 140 So.3d 686 (Fla. 4th DCA 2014), the trial court denied fees to Appellants because the initial service did not comply with the rule.
The Fifth DCA affirmed, holding that “a section 57.105 motion must be served in strict compliance with rule 2.516.” The court explained: “The plain language of rule 2.516 leads us to the inescapable conclusion that the timing of the ‘filing’ is of no consequence to the requirement of service under the rule. The rule says ‘filed,’ not immediately filed or contemporaneously filed. The motion at issue here was ultimately ‘filed,’ albeit much later than when it was initially served. Had it not been filed at some point the document would have been inconsequential and this entire dispute avoided. Our conclusion on this point is buttressed by rule 2.516(d), which governs the timing of the filing of the document. It requires that all documents ‘must be filed with the court either before service or immediately thereafter, unless otherwise provided for by general law or other rules.’ Fla. R. Jud. Admin. 2.516(d). Accordingly, rule 2.516 contemplates two temporal categories of filed documents – those that are filed immediately and those that are filed at some other time. No distinction is made in the rule regarding service of these two distinct categories of documents.” (Emphasis by court.)
The appeals court certified conflict with the Second DCA (Isla Blue Development, LLC v. Moore, 223 So.3d 1097 (Fla. 2d DCA 2017)) and aligned itself with the Third DCA (Wheaton v. Wheaton, 217 So.3d 125 (Fla. 3d DCA 2017), rev. granted, 2017 WL 4785810 (Fla. October 24, 2017)). Goersch v. City of Satellite Beach, __ So.3d __ (Fla. 5th DCA, No. 5D17-386, 7/20/2018), 2018 WL 3479249.
In reversing order granting motion to strike charging lien, appeals court addresses which court is proper forum on remand and whether evidentiary hearing is required. [Added 8/2/18]
Lawyers who had formerly represented Wife in a family law case filed a charging lien. Wife filed a motion to strike the charging lien. The trial court granted Wife’s motion.
The Fourth DCA reversed. Wife’s motion was directed at Lawyers’ original charging lien, but Lawyers had filed an amended charging lien before the court ruled on Wife’s motion. The court erred in striking the original lien, because the amended lien had rendered Wife’s motion moot.
The appeals court stated that, on remand, any proceedings regarding the charging lien would be in the family division from which the appeal rose. “[T]he proper forum for adjudicating the validity, enforceability and amount of a charging lien is with the trial judge before whom the underlying action is pending . . .” (citation omitted).
Further, the court pointed out that “based on the arguments raised in the parties’ briefs, any hearings on any such proceedings shall be evidentiary in nature, unless the circuit court determines that the amended charging lien is insufficient as a matter of law.” D’Anna v. Ackerman, __ So.3d __ (Fla. 4th DCA, No. 4D17-2791, 7/11/2018), 2018 WL 3385639.
Fourth DCA reaffirms that prevailing party fee provision in contract can be broad enough to include entitlement to fees related to execution on judgment. [Added 7/31/18]
Borrower pledged stock to secure a loan. Borrower failed to repay the loan and transferred the stock to a friend. Lender obtained a judgment and sought to collect. Borrower appealed. After litigation maneuvers and the filing of suggestions of bankruptcy, Borrower ultimately paid Lender in full. The appeals court affirmed and also awarded appellate fees to Lender. The trial court then heard and ruled on Lender’s motion for fees, awarding fees for work done in both state court and bankruptcy court. Borrower’s Chapter 7 bankruptcy Trustee appealed.
The Fourth DCA affirmed. Trustee’s argument that the merger doctrine precluded a fee award because the note containing the prevailing party fee provision was merged into the final judgment was rejected by the appeals court. The court noted that it “previously held that a contract providing for a prevailing-party’s entitlement to ‘all reasonable attorney’s fees and costs’ was ‘broad enough to encompass fees for execution on the judgment.’” (Citation omitted.) The language in prevailing party fee provision in the instant case was “broad enough to encompass the extended litigation pursued by the borrower and trustee after payment of the judgment. Thus, the merger doctrine does not prevent the note from serving as a basis for the fee award.”
Trustee also argued that the trial court erred in not considering whether Borrower had attempted to avoid or evade paying the judgment. This was immaterial, however, because “whether the borrower attempted to avoid or evade paying the judgment is a consideration for the court as to the amount of fees and costs – not entitlement.” Regardless, the appellate court pointed out that the trial court actually had considered this factor. Webber v. D’Agostino, __ So.3d __ (Fla. 4th DCA, No. 4D17-3007, 7/5/2018), 2018 WL 3301892.
Single order granting one party entitlement to fees and denying fee entitlement to other party is appealable final order. [Added 7/24/18]
A suit between Yampol and Turnberry Isle South Condominium Ass’n (Turnberry) was dismissed for lack of prosecution. Both parties filed motions seeking entitlement to fees. An order was entered. Turnberry moved for reconsideration, and the court entered a Second Order finding that Turnberry was the prevailing party and so was entitled to fees, and denying Yampol’s entitlement to fees.
Yampol appealed. Turnberry moved to dismiss, arguing that the Second Order “is a non-final, non-appealable order because the trial court has not set the amount of attorney’s fees awarded to Turnberry. In his response, Yampol argued that dismissal is not warranted as his ‘appeal does not arise from an order granting entitlement to attorneys’ fees to Turnberry, but rather an order denying Yampol’s entitlement to attorneys’ fees against Turnberry.’”
The Third DCA framed the issue on appeal as “whether an order that grants one party’s entitlement to fees and denies the other party’s entitlement to fees is an appealable final order.” Because the Second Order denied Yampol’s entitlement to fees, it was a final, appealable order. “[I]n its Second Order, ruled on the entire issue of Yampol’s entitlement to attorneys’ fees. In denying Yampol such entitlement, no further judicial labor on the issue of the amount of attorneys’ fees owed to Yampol was required. Because that portion of the Second Order denying Yampol’s entitlement to attorneys’ fees is an appealable order, we deny Turnberry’s motion to dismiss.” Yampol v. Turnberry Isle South Condominium Ass’n, Inc., __ So.3d __ (Fla. 3d DCA, No. 3D17-2752, 7/5/2018), 2018 WL 3286318.
Court erred in denying prevailing party fees on ground that fee provision was in same paragraph as invalid provision regarding injunctive relief without posting bond. [Added 7/19/18]
Plaintiff obtained an injunction against a former employee for violation of a non-compete agreement contained in their employment agreement. Plaintiff moved for fees, but the trial court denied the motion because the fee provision was in the same paragraph in the employment agreement as an impermissible provision purporting to permit injunctive relief without the posting of a bond. Plaintiff appealed.
The Fourth DCA reversed. The agreement contained a severability clause. The court noted that the “essence” of the paragraph containing the fee provision and the “injunctive relief without a bond” provision “is the employer’s entitlement to seek an injunction to prevent the employee from breaching the non-compete clause of the contract” and that, “[a]lthough the paragraph specifies that the ‘Employer shall be entitled to seek and obtain injunctive relief without the posting of a bond to restrain the Employee,’ the words ‘without the posting of a bond’ can be eliminated, and valid legal obligations remain.” Premier Compounding Pharmacy, Inc. v. Larson, __ So.3d __ (Fla. 4th DCA, No. 4D17-1318, 6/13/2018), 2018 WL 2974515.
Fee award based on F.S. 57.105(7) reversed because entity against whom fees were awarded was not party to contract containing fee provision. [Added 7/17/18]
Decedent had moved into a nursing home (Azalea Trace) before she died. Her contract with Azalea Trace provided for a large entrance fee that was partially refundable if she died within a set time frame. Decedent later signed an “Assignment of Reimbursement of Entrance Fee” in favor of her children, who were the other parties to the Assignment. Azalea Trace was not a party to the assignment, although “[t]o be sure, the assignment accounted for Azalea Trace’s involvement.”
Upon Decedent’s death the children sought a refund. Azalea Trace, however, only refunded a portion of what was allegedly due, holding back an offset for services that had been allegedly provided at a discount. The children sued. The trial court granted summary judgment and Azalea Trace appealed unsuccessfully. The trial court awarded appellate fees to the children under the reciprocal fee provisions of F.S. 57.015(7) based on a prevailing party fee provision in the Assignment.
Azalea Trace appealed, contending that it was not a party to the Assignment. The First DCA agreed and reversed the fee award. “Florida law is clear that no person can claim fees under section 57.105(7) unless that person is a ‘party’ to the contact that includes the fee provision.” (Citation omitted.) Azalea Trace, Inc. v. Matos, __ So.3d __ (Fla. 1st DCA, No. 1D17-753, 6/4/2018), 2018 WL 2472351.
Proposal for settlement invalid under Attorneys’ Title Ins. Fund v. Gorka because it did not permit each offeree to independently evaluate and accept it. [Added 6/22/18]
Gonzalez sued Pacheco and Pacheco’s corporation over an allegedly defective design for Gonzalez’s home air conditioning system. Gonzalez served a proposal for settlement on both defendants pursuant to F.S. 768.79 and Fla.R.Civ.P. 1.442. The proposal offered to resolve all claims against both “Pacheco defendants.” The proposal was for $330,000, to be allocated $150,000 from Pacheco and $150,000 from the corporation. A stipulation of voluntary dismissal that was attached to the proposal stated “that the ‘PACHECO DEFENDANTS dismiss with prejudice all claims, counterclaims and third-party claims that were brought or could have been brought by them in this action’ and that ‘Plaintiff voluntarily dismisses with prejudice all claims that were brought or could have been brought in this action against the PACHECO DEFENDANTS.’” The proposal was not accepted.
After judgment against both defendants, Gonzalez moved for fees pursuant to the proposal for settlement. Pacheco and the company responded to the motion, “arguing that the proposal was facially invalid and unenforceable under rule 1.442 and that Gonzalez was not entitled to fees under section 768.79 because, among other things, the Proposal improperly required acceptance by both Pacheco and the Corporation and failed to provide each with the ability to independently accept the Proposal.” The trial court awarded fees to Gonzalez. The defendants appealed.
The Third DCA reversed. The case was controlled by Attorneys’ Title Ins. Fund v. Gorka, 36 So.3d 646 (Fla. 2010), in which “[t]he Florida Supreme Court held that joint offers ‘conditioned on the mutual acceptance of all joint offerees’ are ‘invalid and unenforceable because it is conditioned such that neither offeree can independently evaluate or settle his or her respective claim by accepting the proposal.’” The appeals court concluded that the proposal served by Gonzalez was “invalid and unenforceable.” The court summarized: “Although the Proposal provides that the $300,000 offer be apportioned as a $150,000 payment from Pacheco and a $150,000 payment from the Corporation, it is unclear how much Pacheco or the Corporation would have to pay if either wanted to settle Gonzalez’s claim individually. As a result, the Proposal is not structured to permit either Pacheco or the Corporation to ‘independently evaluate or settle his . . . respective claim by accepting the proposal.’ [Citation omitted.] Moreover, the Proposal clearly conditions settlement on Pacheco and the Corporation’s “mutual acceptance of the offer and joint action in accordance with its terms.” . . . Because the Proposal deprived Pacheco and the Corporation of the ability to evaluate and independently act to resolve Gonzalez’s claims, the Proposal is invalid under Gorka and cannot form the basis of an award of attorney’s fees under section 760.79 and pursuant to rule 1.442.”
The court also noted that Gorka is subject to 2 significant limitations, but explained why neither was applicable in the case before it. Pacheco v. Gonzalez, __ So.3d __ (Fla. 3d DCA, No. 3D16-355, 5/16/2018), 2018 WL 2224163.
Court erred in not awarding prevailing party fees to party who succeeded in obtaining injunction but failed to recover on claim for money damages. [Added 6/4/18]
Gonzalez sued her Homeowner’s Association on 2 counts. Count 1 alleged that the Association breached its governing documents and caused monetary damages to her in connection with surface water flooding. Count 2 sought a mandatory injunction to enforce the governing documents in order to address the flooding problem. The jury found that the Association breached its governing documents but awarded no monetary damages because it found that the breach was not a legal cause of Gonzalez’s damages. The court granted Gonzalez’s motion for entry of a mandatory injunction.
The trial court denied Gonzalez’s motion for fees as a “prevailing party” under F.S. 720.305(1), finding that she was not the prevailing party “by focusing primarily on the amount of the judgment she received – or more specifically, the lack of any monetary award to her – rather than on the substance of what occurred in the litigation.”
The Fourth DCA reversed. A prevailing party determination does not turn solely on the magnitude of relief obtained, but Gonzalez “was required, at the least, to secure some relief on the merits of her claim to achieve such status.” She achieved this by prevailing on her claim for injunctive relief. “Although there is ongoing debate in the courts on whether a plaintiff who recovers no money damages can be a prevailing party, a party who receives affirmative judicial or equitable relief is clearly considered a prevailing party under the law. Gonzalez was indisputably a prevailing party on her injunctive claim in equity, regardless of her marginal victory on the breach count. Thus, prevailing party attorney fees should be awarded to Gonzalez in this dispute.” Coconut Key Homeowner’s Ass’n, Inc. v. Gonzalez, __ So.3d __ (Fla. 4th DCA, Nos. 4D17-739, 4D17-1749, 5/9/2018), 2018 WL 2126726.
Supreme Court holds that filing of motion to enlarge time under Fla.R.Civ.P. 1.090 does not toll 30-day deadline for accepting proposal for settlement. [Added 6/1/18]
Exercising its conflict jurisdiction, the Florida Supreme Court held that the filing of a motion to enlarge time under Fla.R.Civ.P. 1.090 does not automatically toll the 30-day deadline for accepting a proposal for settlement. The Court approved Ochoa v. Koppel, 197 So.3d 77 (Fla. 2d DCA 2016) and disapproved Goldy v. Corbett Cranes Services, Inc., 692 So.2d 225 (Fla. 5th DCA 1997).
In an auto accident case, Plaintiff served Defendant with a proposal for settlement pursuant to F.S. 768.79 and Fla.R.Civ.P. 1.442. One day before the 30-day period for accepting the proposal expired, Defendant moved to enlarge time under rule 1.090. Two months later a hearing was held on the motion. The next day Defendant served a notice purporting to accept the settlement proposal. The court entered an order denying Defendant’s motion to enlarge time. Plaintiff then moved to strike the acceptance as untimely. The court denied the motion to strike and granted Defendant’s motion to enforce the settlement.
The Second DCA reversed, holding that “the filing of a rule 1.090 motion to enlarge time to accept a proposal for settlement under rule 1.442 does not toll the thirty-day acceptance period between the date of the proposal and when it is deemed rejected.” Ochoa v. Koppel, 197 So.3d 77, 81 (Fla. 2d DCA 2016). The court certified conflict with the Fifth DCA.
The Supreme Court approved the Second DCA’s decision. Neither party argued that rules 1.090 or 1.442 were ambiguous. The Court concluded: “[I]t is clear from the plain language that neither rule contains language that would provide for tolling once a motion to enlarge is filed. Rule 1.442 does not address the computation of time. . . . Rule 1.090 allows for the time period set forth in rule 1.442 to be enlarged, but this enlargement is at the trial court’s discretion if the motion was filed before expiration of the time period and cause has been shown. After the time period has expired, the trial court still has discretion to enlarge the time period if the moving party can demonstrate excusable neglect in addition to cause. Nowhere does the rule allow additional time to accept by simply filing the motion to enlarge. This seems consistent with the rule, which provides for additional time only after cause has been shown.”
The Court decided that its decision was to be applied retroactively. Koppel v. Ochoa, __ So.3d __ (Fla., No. SC16-1474, 5/17/2018), 2018 WL 2251709.
Single, joint proposal for settlement was invalid because it did not apportion amount attributable to each offeror in situation where offerors’ liability was not exclusively derivative in nature. [Added 4/30/18]
Peltz, a lawyer, sued 3 defendants to recover unpaid legal fees for services he performed for one of the defendants (Tecton). Peltz alleged that the other 2 defendants (Hospitality and International) were liable for Tecton’s fee obligations “based on theories of breach of oral contract, unjust enrichment, and quantum meruit.” Peltz claimed that Hospitality and International had assumed operational control over Tecton and benefitted from the legal services that he provided to Tecton.
Hospitality and International served a single, joint proposal for settlement on Peltz. The proposal did not apportion between the offerors the amount attributable to each of them. Peltz rejected the offer. After trial, the court awarded fees to Hospitality and International based on the rejected proposal.
Peltz appealed, contending that “joint proposal was invalid, and therefore unenforceable, because the proposal did not apportion the $10,001 settlement offer between Hospitality and International, the proposal’s co-offerors, as required by rule 1.442(c)(3).” (This rule provides that “[a] proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party.”) The defendants countered by relying on rule 1.442(c)(4), which provides an exception to the apportionment requirement when an offeror’s liability is solely derivative in nature.
The Third DCA reversed, concluding that the derivative liability exception did not apply. It would apply “only if Peltz had alleged that appellees/co-offerors’ liability was exclusively derivative in nature, i.e., their liability for Tecton’s debt arose by operation of law, rather than as a result of any act or omission of the offerors.” But that was not the case – Peltz claimed that their liability to him was direct, rather than derivative.
(The court noted with irony that the offerors had prevailed in the underlying case precisely because they had been successful in arguing that they were not responsible for Peltz’s claims against Tecton.) Peltz v. Trust Hospitality International, LLC, __ So.3d __ (Fla. 3d DCA, No. 3D17-428, 4/11/2018), 2018 WL 1733924.
Offer of judgment not ambiguous because it included settlement of fee claims when complaint did not seek fee award. [Added 4/23/18]
Plaintiff had made an offer of judgment to Defendant. The court denied Plaintiff’s motion for fees based on the unaccepted offer, after Defendant objected that the offer was ambiguous “because it purported to settle all claims, ‘inclusive of any and all attorney fees and costs incurred as of the date of the acceptance of this offer,’ further stating ‘Attorney fees are part of the legal claims,’ but the complaint itself did not in fact pray for an award of attorney fees.”
The First DCA reversed. The requirement to identify whether an offer of judgment or proposal for settlement includes fees is found in Fla.R.Civ.P. 1.442(c)(2)(F), but is not in the offer of judgment statute, F.S. 768.79. In Kuhajada v. Borden Dairy Co. of Alabama, LLC, 202 So.3d 391 (Fla. 2016), the Florida Supreme Court ruled that an offer that complied with the statute was not insufficient or ambiguous because it failed to statute whether attorney’s fees were included. Further, the Court stated that the requirements of rule 1.442 “relating to attorney’s fees are totally irrelevant to the settlement of a case in which attorney’s fees are not sought.” Castillo v. Costco Wholesale Corp., __ So.3d __ (Fla. 3d DCA, No. 3D16-2185, 2/21/2018), 2018 WL 988346.
Judgment awarding fees that included contingent fee multiplier reversed despite lack of transcript of fee hearing because there was no finding whether relevant market required multiplier. [Added 4/15/18]
Following a suit between an insured and the insurer over coverage for a sinkhole loss, the trial court held a fee hearing. There was not transcript of that hearing. The court then awarded fees to the insured that included a 1.7 contingent fee multiplier. Insurer appealed, arguing that “the trial court's failure to make a finding as to whether the market required a contingent fee multiplier pursuant to Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990), is an error apparent on the face of the record and, therefore, that the transcript of the evidentiary hearing is not required.” The Second DCA agreed and reversed.
Regarding the absence of a hearing transcript, the court pointed out that “[w]hile the lack of a transcript or stipulated statement of the facts might require an affirmance in other cases, that rule is not applicable where a trial court order is fundamentally erroneous on its face for failure to make required findings.” (Citations omitted.) Under Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), and Quanstrom, a court is “required to make specific findings on any enhancement factors, including the issue of the contingent fee multiplier” (emphasis by court). The appeals court concluded that “[t]he order under review is fundamentally erroneous on its face because it fails to contain a specific finding regarding whether the relevant market required the application of the contingent fee multiplier” (emphasis by court). Citizens Property Ins. Corp. v. Anderson, __ So.3d __ (Fla. 2d DCA, No. 2D16-616, 2/14/2018), 2018 WL 844568.
Fees properly denied to borrowers who persuaded court that foreclosing bank was not signatory to note or mortgage and thus was not entitled to enforce them. [Added 4/10/18]
Bank sued Borrowers in a mortgage foreclosure. The trial court entered judgment for Bank, but Borrowers prevailed on appeal. Bank was not a signatory to the note or mortgage, and failed to establish its entitlement to enforce the note under the lost note statute. Borrowers’ motion for appellate fees was denied.
Borrowers moved for reconsideration, arguing that they were entitled to a fee award. Borrowers interpreted Nationstar Mortgage LLC v. Glass, 219 So.3d 896 (Fla. 4th DCA 2017), “as precluding an award of attorney’s fees to a prevailing borrower only if the borrower prevailed because the bank failed to prove standing” (emphasis added). The Fourth DCA disagreed and affirmed the denial of fees: “[N]othing in Glass limits the holding to the standing issue. The holding in Glass was broader, focusing on a failure to prove entitlement to enforce a mortgage and note . . .” Sabido v. Bank of New York Mellon, __ So.3d __ (Fla. 4th DCA, No. 4D16-2944, 2/7/2018), 2018 WL 735950.
Law firm denied fees under contingent fee agreement that did not comply with Bar rules, but may pursue recovery in quantum meruit. [Added 4/5/18]
O’Malley was in a car accident. While he was in a coma, O’Malley’s mother signed a contingent fee agreement with lawyer Freeman. She signed as “personal representative of the estate of William O’Malley.” At the time O’Malley was not deceased, had not signed a power of attorney, had not been adjudicated incompetent, and had no guardian. O’Malley later terminated the representation “without explanation.”
Freeman later sued O’Malley for fees allegedly owed from the representation. The trial court found that O’Malley had ratified the fee agreement signed by his mother. The court awarded the fees Freeman sought, less an amount for work performed after he was discharged.
The Fourth DCA reversed. The contingent fee agreement failed to comply with Rule 4-1.5(f)(2) (requiring the client to sign the agreement, and specifying that no lawyer may participate in the fee without the client’s consent in writing). “Contingent fee agreements that do not comply with the regulations are ‘void as against the public interest.’ Chandris, S.A. v. Yanakakis, 668 So.2d 180, 181 (Fla. 1995); see also Bakos v. Bakos, 950 So.2d 1257, 1259-60 (Fla. 2d DCA 2007) (noting that a void contract cannot be ratified).”
Furthermore, there was no evidence to support the trial court’s conclusion that O’Malley had ratified the fee agreement.
Despite not being able to recover on the contract, the appeals court noted that Freeman could pursue a recovery on a quantum meruit basis, applying the “totality of the circumstances” analysis articulated in Searcy, Denney, Scarola, Barnhart & Shipley, P.A. v. Poletz, 652 So.2d 366 (Fla. 1995). When it applied this analysis on remand, in addition to the actual value of the services Freeman rendered to O’Malley the Fourth DCA directed the trial court to take into account the following factors: “(1) the lack of a ratified fee agreement; (2) the circumstances under which Freeman commenced legal services on behalf of [O’Malley], with an agreement signed by the mother of an incapacitated adult who had not signed a power of attorney agreement, and for whom time was of the essence in commencing a legal claim; and (3) the initial miscommunication between Freeman and [O’Malley ]’s second set of attorneys as to the time and services expended by Freeman prior to his discharge, resulting in the new attorneys duplicating work that Freeman had already completed in the case.” O’Malley v. Freeman, __ So.3d __ (Fla. 4th DCA, No. 4D17-1500, 4/4/2018), 2018 WL 1617704.
Release served with proposal for settlement was not ambiguous even though, due to typographical error, release contained names of non-parties. [Added 4/2/18]
Plaintiff Cinque sued Defendant Sanchez for injuries suffered as a result of Defendant’s administration to Plaintiff of a facial chemical peel treatment. Plaintiff served Defendant with a proposal for settlement that was not accepted. After a substantial jury verdict in her favor, Plaintiff moved for attorney’s fees based on the rejected proposal for settlement. The trial court denied the motion on the ground that the release attached to the proposal was ambiguous “because of its reference to unknown non-parties” to the action.
The Fourth DCA reversed. The court noted that Florida courts “have recognized that typographical errors do not automatically create ambiguity.” The proposal and release, when read as a whole, were not ambiguous. “There was no doubt that the plaintiff was offering to settle the case against Defendant Sanchez for $175,000 and that the release would prevent Sanchez from ever being sued again by the plaintiff for injuries relating to the March 19, 2013 procedure. The proposal and release stated with particularity the relevant conditions and all non-monetary terms. Read as a whole, the proposal and release did not have any ambiguities that prevented Sanchez from fully evaluating the terms and conditions. Although the release contained a reference to non-parties, this was clearly a ‘cut and paste’ typographical error that did not create an ambiguity that could have reasonably affected Sanchez’s decision whether to accept the proposal.” Sanchez v. Cinque, __ So.3d __ (Fla. 4th DCA, No. 4D16-2530, 2/14/2018), 2018 WL 851366.
Court erred in awarding prevailing party fees under F.S. 57.105(7) to party that purchased subject property from bankruptcy trustee after borrowers filed for bankruptcy. [Added 3/21/18]
Borrowers defaulted on their mortgage. Lender PNC sued Borrowers. Borrowers filed for bankruptcy. The bankruptcy trustee transferred the property to MDTR, LLC. MDTR took the property subject to the mortgage. PNC proceeded against MDTR, dropping Borrowers before trial. PNC later voluntarily dismissed the suit, and MDTR moved for prevailing party fees based on a provision in the mortgage and F.S. 57.105(7). The trial court granted the motion. PNC appealed.
The Fifth DCA reversed. MDTR was not a party to the mortgage and so was not entitled to fees under the mortgage’s provisions. MDTR did not assume the mortgage; “rather, it took the property subject to PNC’s mortgage.” PNC Bank N.A. v. MDTR, LLC, __ So.3d __ (Fla. 5th DCA, No. 5D16-2887, 2/2/2018), 2018 WL 663792.
Dismissal of mortgage foreclosure action without prejudice will support award of prevailing party fees under F.S. 57.105(7). [Added 3/14/18]
Lender brought a mortgage foreclosure action against Borrowers. The court granted Borrowers’ motion for involuntary dismissal and dismissed the case without prejudice. Borrowers sought prevailing party attorney’s fees under F.S. 57.105(7) based on fee provisions in the mortgage. The court denied the motion. Borrowers appealed.
The Third DCA reversed. “Florida courts have consistently held that a mortgagor is entitled to attorney’s fees as the ‘prevailing party’ under section 57.105(7) when a mortgage foreclosure case has been dismissed. [Citations omitted.] [Borrowers] had Lender’s foreclosure case against them dismissed, “albeit without prejudice, and therefore they were the prevailing party below within the meaning of section 57.105(7).” Romaguera v. Trust Mortgage, LLC, __ So.3d __ (Fla. 3d DCA, No. 3D16-1482, 1/17/2018), 2018 WL 443150.
Law firm that did not file notice of charging lien with court before action was voluntarily dismissed failed to timely perfect lien. [Added 3/1/18]
Law Firm represented Doctor in a suit against his former medical partners. After Doctor accrued fees in excess of $300,000, Law Firm withdrew from the case. Law Firm sent Doctor and his new counsel 3 letters reserving its right to file and enforce a notice of charging lien. Without notice to Law Firm, Doctor settled the case at mediation and the parties moved for voluntarily dismissal, which was granted.
Two weeks after dismissal of the action, Law Firm filed a notice of charging lien in the original action. Doctor moved to strike the notice. Law Firm moved to reopen the case. The court granted the motion to reopen and held an evidentiary hearing regarding whether it had jurisdiction to enforce the firm’s charging lien. The court entered an order granting Doctor’s motion to strike the lien but finding that Law Firm had a valid lien. Both parties appealed.
The Second DCA affirmed the striking of the notice of lien, and reversed the portion of the order finding the lien valid. “To perfect a charging lien, the attorney must ‘either file a notice of lien or otherwise pursue the lien in the original action’ before the case is dismissed. Daniel Mones, P.A. v. Smith, 486 So. 2d 559, 561 (Fla. 1986); see also Heller v. Held, 817 So.2d 1023, 1026 (Fla. 4th DCA 2002) (holding the attorney provided timely notice of the lien based on the attorney's motion to withdraw and ‘the order authorizing such withdrawal, referencing [the attorney's] intent to pursue a charging lien’).” Law Firm’s letters to Doctor “were not filed in the original action before the dismissal, and thus, did not constitute pursuing the lien in the original action.” Consequently, Law Firm “did not timely perfect its charging lien, and the trial court lost jurisdiction to entertain it after the voluntary dismissal.” Greenberg Traurig, P.A. v. Starling, __ So.3d __ (Fla. 2d DCA, No. 2D17-772, 1/5/2018), 2018 WL 300894.
Where underlying contract was void due to forged signatures, attorney’s fee provision will not support fee award under F.S. 57.105(7). [Added 2/27/18]
In a suit by Bank on a mortgage, Borrowers’ were able to prove that their signatures on the mortgage were forged. Accordingly, the mortgage was void. The court awarded attorney’s fees to Borrowers based on a provision in the mortgage and F.S. 57.105(7) (reciprocity). Bank appealed.
The Fifth DCA reversed. Because there was no valid contract, “it was error to award attorney’s fees under either paragraph 22 of the mortgage or the reciprocity rule found in section 57.105(7).” Wells Fargo Bank N.A. v. Bird, __ So.3d __ (Fla. 5th DCA, No. 5D16-669, 1/5/2018), 2018 WL 300655.
Law firm’s assignment of client’s debt for legal fees to third party violates Rules of Professional Conduct and is unenforceable, per U.S. District Court. [Added 2/23/18]
Client owed money to Law Firm for legal services it had performed. Law Firm assigned Client’s debt to a third party collection company (“Collectarius”). Collectarius sued Client to collect on the debt. Client filed a motion to dismiss for lack of subject matter jurisdiction, arguing that Collectarius lacked standing. Specifically, Client contended that Law Firm’s assignment of the debt violated ethical rules as expressed in the Florida Rules of Professional Conduct and so was void.
The U.S. District Court for the Middle District of Florida agreed and granted the motion to dismiss. Contracts that violate public policy are void and unenforceable. The court indicated that public policy may be expressed by ethical standards, and ruled that the assignment ran afoul of several ethics rules and ethics opinions.
The court emphasized the high value placed on attorney-client confidentiality, stating that “the client’s right to confidentiality is strictly protected.” Rule 1.6(a) broadly extends confidentiality to all information relating to the representation of a client, regardless of its source. Client intended to challenge the reasonableness of its alleged debt to Law Firm, thus making it likely that confidential information relating to Law Firm’s representation of Client would be revealed.
The court also discussed several Florida Bar ethics opinions. Florida Ethics Opinion 88-1 stresses that a lawyer should sue a client for fees “only as a last resort.” In this case, Client alleged that Law Firm itself could not ethically sue Client because it had not even clearly terminated the representation. Florida Ethics Opinion 72-43 concluded that a lawyer could assign a client’s debt for unpaid fees to a third party only “as long as the client consents and the assignment limits to the lawyer the right to sue in the event of default.” Those conditions were not met by Law Firm.
The court acknowledged that “there is no binding authority controlling the issue of whether a law firm can assign a client’s legal fee debt to a collection agency to pursue through litigation.” In view of the ethics rules and opinions it reviewed, however, “it appears to this Court that [Law Firm]’s assignment of the [Client] Debt to [Collectarius] to pursue collection through litigation will impinge on [Client]’s expectation of confidentiality from the attorney-client relationship it had with [Law Firm].” Because the importance of maintaining confidentiality “cannot be overstated,” the court concluded that “lawsuits to collect legal fees must be brought by the attorney that is owed the fee.”
Additionally, the court cited case law to support its decision not to enforce a contact that violates ethical rules: Chandris v. Yanakakis, 668 So.2d 180 (Fla. 1996) (refusing to enforce contingent fee agreement that did not comply with Rules Regulating the Florida Bar); Foodtown, Inc. of Jacksonville v. Argonaut Ins. Co., 102 F.3d 483 (11th Cir. 1997) (refusing to enforce non-compliant contingent fee agreement); Santiago v. Evans, 547 Fed. Appx. 923 (11th Cir. 2013) (refusing to enforce attorney-client agreement that did not comply with Rule 4-1.8(a)); Mursten v. Caporella, 619 Fed. Appx. 832 (11th Cir. 2015) (refusing to enforce attorney-client agreement that did not comply with Rule 4-1.8(a)).
Finally, the court noted that the Supreme Court relied on the protection of attorney-client confidentiality as a rationale for prohibiting the assignment of most legal malpractice claims. Law Office of David J. Stern, P.A. v. Security National Servicing Corp., 969 So.2d 962 (Fla. 2007). “If clients cannot assign their attorney malpractice claims based on confidentiality concerns, then it seems that the same confidentiality concerns should bar lawyers from assigning their right to sue their clients to collect disputed attorneys’ fees.” Collectarius Financial, LLC v. Statebridge Co., LLC, __ F.Supp.3d __ (M.D. Fla., No. 8:18-cv-137-T-24 AEP, 2/9/2018), 2018 WL 807041.
Fifth DCA recedes from its prior decision and rules that appellate attorney’s fees may be awarded in paternity actions. [Added 2/21/18]
Mother moved for appellate attorney’s fees under F.S. 742.045 in a paternity action. The Fifth DCA, sitting en banc, receded from a prior decision that held that appellate fees were not authorized under the statute (Starkey v. Linn, 272 So.2d 386 (Fla. 5th DCA 1999).
F.S. 742.045 provides that the court may award fees and costs to a party “for maintaining or defending any proceeding under this chapter . . .” In Starkey the court concluded that the statute did not authorize appellate fees in paternity actions because it was missing the words “and appeals” that had been added to similar language in F.S. 61.16. The court decided that this interpretation in Starkey “was erroneous” and receded from it.
The court reasoned: “Black’s Law Dictionary defines ‘proceeding’ as ‘[a]ny procedural means for seeking redress from a tribunal or agency.’ . . . This appellate court clearly is a tribunal from which a party may seek redress. . . . Therefore, because Mother, by defending in this appellate proceeding arising from a final judgment of paternity entered under chapter 742, Florida Statutes, is taking a particular step in the adjudication of both her and her children’s rights, we conclude that she is entitled to an award of appellate attorney’s fees under the plain language and meaning of section 742.045.” McNulty v. Bowser, __ So.3d __ (Fla. 5th DCA, No. 5D16-3330, 1/5/2018), 2018 WL 300230.
Resolving conflict among DCAs, Supreme Court holds that 57.105 fee award is permissible in dating, repeat, and sexual violence injunction actions filed under F.S. 784.046. [Added 2/13/18]
Lopez petitioned for injunction for protection against repeat and dating violence under F.S. 784.046. She was granted a temporary injunction against Hall. The court subsequently extended the injunction further order. Hall then moved for fees and sanctions under F.S. 57.105, alleging that Lopez had perjured herself. Lopez voluntarily dismissed her action, and the denied Hall’s motion for fees. The court held that seection 784.046 has no provisions authorizing an award of 57.105 fees on any basis. The First District reversed the trial court’s ruling, holding that an award of 57.105 fees was not prohibited in an action under 784.046. Hall v. Lopez, 213 So.3d 1003 (Fla. 1st DCA 2017). The court certified conflict with decisions of the Third DCA (Ratigan v. Stone, 947 So.2d 607 (Fla. 3d DCA 2007); Cisneros v. Cisneros, 831 So.2d 257 (Fla. 3d DCA 2002)) and the Fifth DCA (Dudley v. Schmidt, 963 So.2d 297 (Fla. 5th DCA 2007)).
By a 4-3 vote, the Florida Supreme Court approved the First DCA’s decision that section 57.105 does not prohibit awarding fees in an action under section 784.046. “Because section 57.105’s language plainly states that its provisions apply to ‘civil proceeding[s] or action[s],’ and a proceeding under section 784.046 is a civil proceeding, we hold that section 57.105 may be applied to section 784.046 actions where all other requirements of section 57.105 are met.”
The court acknowledged that “practical problems” could arise because of the timeline that normally occurs in section 784.046 actions. Due to this timeline, “it will be impossible for a party to obtain a ruling upon a section 57.105 motion in a situation where a temporary injunction is granted and a full hearing must occur at most 15 days later, prior to the end of the 21-day-notice period.”
Three justice dissented. Lopez v. Hall, __ So.3d __ (Fla., No. SC16-1921, 1/11/2018), 2018 WL 369123.
Where "true relief sought” is money damages, party cannot escape fee award under offer of judgment rule merely by adding declaratory judgment count to complaint. [Added 2/8/18]
Insured sued Insurer for breach of contract, alleging that Insurer failed to pay the actual cash value of their loss. Insureds also sought a declaratory judgment relating to the policy provisions. Insurer served an offer of judgment, which Insureds did not accept. At trial the jury determined that Insureds failed to prove that Insurer did not pay actual cash value. As a result, the trial court entered judgment for Insurer.
Insurer moved for fees under F.S. 768.79 based on the unaccepted offer of judgment. The trial court denied the motion, determining that Insurer “was not entitled to attorney’s fees under section 768.79, pursuant to Diamond Aircraft Industries, Inc. v. Horowitch, 107 So.3d 362 (Fla. 2013), because the Javellanas’ complaint sought both equitable relief and money damages.” Insurer appealed.
The Third DCA reversed, holding that the case “was a civil action for damages, and therefore, [Insurer]’s offers of judgment were valid under section 768.79(1).” The trial court did not properly apply Diamond Aircraft, because that case “did not hold is that a plaintiff can avoid an otherwise valid offer of judgment by merely adding a declaratory judgment count to a cause of action in which the true relief sought is money damages” (emphasis by court). The appeals court stated that “it is plain that the true relief sought by [Insureds] was money damages for a breach of contract, rather than equitable relief.” Tower Hill Signature Ins. Co. v. Javellana, __ So.3d __ (Fla. 3d DCA, Nos. 3D16-2526, 3D16-2492, 12/13/2017), 2017 WL 6347070.
Aligning with Second and Fourth DCAs, First DCA rules that proposal for settlement need not be served in compliance with Fla.R.Jud.Admin. 2.516. [Added 2/5/18]
Plaintiff sent a proposal for settlement to Defendant by email. Defendant did not accept, and at trial Plaintiff got a judgment more than 25% greater that the proposal amount. Defendant argued that the proposal had to be served in compliance with Fla.R.Jud.Admin. 2.516 and that, because it was not, the proposal would not support an award of attorney’s fees. The trial court ruled that Rule 2.516 did not apply to a proposal for settlement and awarded fees. Defendant appealed.
The First DCA affirmed. It recognized that there was a split of authority among DCAs regarding whether rule 2.516 applied to proposals for settlement. It agreed with cases from the Second DCA (Boatright v. Philip Morris USA, Inc., 218 So.3d 962 (Fla. 2d DCA 2017) and Fourth DCA (McCoy v. R.J. Reynolds Tobacco Co., 42 Fla. L. Weekly D2281, 2017 WL 4812662 (Fla. 4th DCA Oct. 25, 2017), that “compliance with rule 2.516 is not required when serving a proposal for settlement.”
The court certified conflict with the decision of the Third DCA (Wheaton v. Wheaton, 217 So.3d 125 (Fla. 3d DCA 2017), rev. granted, 2017 WL 4785810 (Fla. October 24, 2017)). Oldcastle Southern Group, Inc. v. Railworks Track Systems, Inc., __ So.3d __ (Fla. 1st DCA, No. 1D17-48, 12/21/2017), 2017 WL 6521324.
Law firm and client may not be held jointly and severally liable for fee award ordered as sanction under F.S. 57.105(1). [Added 1/17/18]
A trial court ruled that Law Firm and its client had filed a frivolous complaint. The court imposed sanctions under F.S. 57.105(1), ordering that Law Firm and the client be jointly and severally liable for attorney’s fees. Law Firm appealed.
The Fifth DCA reversed on the ground that the trial court’s order assessing fees as a sanction failed to include the required factual findings. The appeals court further noted that the trial court erred in imposing joint and several liability on Law Firm and client because, under the statute, each could be liable for only 50% of the fees sanction. In a footnote the court explained: “Notably, joint and several liability would impose the entire amount of the judgment on both Law Firm and [client]. There is no authorization in section 57.105 for that outcome. While section 57.105 contemplates situations where either the client or the attorney may be liable for one hundred percent of the fee award, it does not permit both to be held liable for the entire award.” Austin & Laurato, P.A. v. State Farm Florida Ins. Co., __ So.3d __ (Fla. 5th DCA, No. 5D15-3616, 11/17/2017), 2017 WL 5503837.
Rejecting federal courts’ approach, Supreme Court reaffirms that under Florida law there is not a “rare” and “exceptional” circumstances exception to application of contingency fee multiplier to prevailing party fee award. [Added 1/9/18]
Insureds hired a lawyer on a contingent fee basis and sued their homeowners’ insurer over denial of a claim. Insurer settled the dispute and agreed that Insureds were entitled to recover reasonable attorney’s fees under F.S. 627.428. The trial court awarded $76,300 in fees, based on the lodestar amount of $38,150 and a contingency fee multiplier of 2.0. In applying the multiplier, the court “analyzed the following factors set forth in [Standard Guaranty Ins. Co. v.] Quanstrom [, 555 So.2d 828 (Fla. 1990)] for determining whether a contingency fee multiplier is warranted: (1) whether the relevant market requires a contingency fee multiplier to obtain competent counsel; (2) whether the attorney was able to mitigate the risk of nonpayment in any way; and (3) whether any of the factors set forth in [Florida Patient’s Compensation Fund v.] Rowe [, 472 So.2d 1145 (Fla. 1985) are applicable, especially the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client.”
The Fifth DCA affirmed the lodestar amount but reversed the application of a contingency fee multiplier, “concluding that the federal lodestar approach includes ‘a ‘strong presumption’ that the lodestar represents the ‘reasonable fee.’” Federated National Ins. Co. v. Joyce, 179 So.2d 492, 493 (Fla. 5th DCA 2015) (quoting Progressive Express Ins. Co. v. Schultz, 948 So.2d 1027, 1030 (Fla. 5th DCA 2007)). The Fifth DCA had noted that federal court decisions indicated that this presumption was overcome only in “rare” and “exceptional” circumstances.
The Florida Supreme Court quashed the Fifth DCA’s decision. The Court expressed its disagreement with U.S. Supreme Court decisions, finding them not controlling. “[I]t is clear that this Court has never limited the use of contingency fee multipliers to only ‘rare’ and ‘exceptional’ circumstances.” The Court explained that “the contingency fee multiplier provides trial courts with the flexibility to ensure that lawyers, who take a difficult case on a contingency fee basis, are adequately compensated.” The Court disagreed that applying a contingency fee multiplier would encourage nonmeritorious claims, instead positing that “solely because a case is ‘difficult’ or ‘complicated’ does not mean that the case is nonmeritorious.”
The Court summarized: “We agree with Petitioners and conclude that the Fifth District erred by imposing a ‘rare’ and ‘exceptional’ circumstances requirement before a trial court may apply a contingency fee multiplier. We reaffirm our decisions regarding the requirements for the application of a contingency fee multiplier in Rowe, 472 So.2d 1145, Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990), and Bell v. U.S.B. Acquisition Co., 734 So.2d 403 (Fla. 1999). Accordingly, we quash the Fifth District’s decision.” Joyce v. Federated National Ins. Co., 228 So.3d 1122 (Fla. 2017).
Retaining lien was not enforceable against funds deposited in lawyer's trust account for undifferentiated alimony and child support arrearages. [Added 12/10/17]
Former Husband was delinquent on alimony and child support. Lawyer, counsel for the Former Wife, provided services that contributed to Former Husband depositing money toward the arrearage. The deposit “was not differentiated between the alimony and child support.” Citing her contract with her client, Lawyer sought to enforce a retaining lien against the undifferentiated arrearage held in her trust account. The magistrate, however, recommended that the court order Lawyer to release the funds to Former Wife.
The trial court agreed with the magistrate and denied Lawyer’s motion to enforce a retaining lien. The court relied on Jaeger v. Jaeger, 182 So.3d 697, 698 (Fla. 4th DCA 2015) (“Jaeger I”), which held that “a charging lien may not apply against an award of past due undifferentiated support accruing during the pendency of the divorce proceedings.”
The Fourth DCA affirmed. “Similar to our holding in Jaeger I, even if the retaining lien could have been enforced against that portion of the undifferentiated arrearage which constituted alimony, the magistrate also found that the award was for the necessities of life for the spouse. ‘A trial court is bound by a [magistrate’s] factual findings and recommendations unless they are clearly unsupported by the evidence and clearly erroneous.’ Glaister v. Glaister, 137 So.3d 513, 516 (Fla. 4th DCA 2014) (citation omitted). Although the circuit court did not reject the magistrate’s findings of fact, competent substantial evidence supported the magistrate’s findings.” Lisa Marie Macci, P.A. v. Jaeger, __ So.3d __ (Fla. 4th DCA, No. 4D16-2828, 12/6/2017), 2017 WL _______.
Hours that lawyer worked while at his former law firm must be considered when court awards fees under F.S. 627.428, even though firm withdrew from client’s case and thus forfeited right to fee. [Added 11/19/17]
Lawyer worked on Insured’s first-party insurance dispute with Insurer while Lawyer was employed by Law Firm. The fee agreement was a contingent one, providing that Insured would pay the greater of a percentage of the recovery or a statutory reasonable fee. When Lawyer left Law Firm, the Firm offered Insured the option of either going with Lawyer or hiring a different Lawyer of Insured’s choice. Insured went with Lawyer. Law Firm’s notice of charging lien was considered by the trial court, which ruled that Law Firm forfeited or waived its entitlement to a fee by withdrawing from the case before the occurrence of the contingency.
After the case was resolved in Insured’s favor, Insured moved for fees pursuant to F.S. 627.428. The trial court refused to consider the hours that Lawyer had spent on the case while at Law Firm, on the ground that the Firm had forfeited its fee. Insured appealed this ruling.
The Fifth DCA reversed. The fee-shifting statute, F.S. 627.428, provides that the fee belongs to the insured, not to the insured’s attorney. Accordingly, the fee agreement between lawyer and client is not controlling. The statute is not based on indemnity principles. The court summarized: “[W]e conclude that the trial court should have considered all of the hours reasonably expended by all of [Insured]’s attorneys in its calculation of a fee to be awarded to the insured. Under the plain language of the statute and our controlling precedent, the entitlement to a reasonable fee is [Insured]’s right, not his attorney’s. [Insured]’s legal obligation to his attorneys had no bearing on the methodology for calculating a reasonable fee. [Insurer]’s argument that the fee-shifting statute only permits the court to “reimburse [Insured] for the attorney’s fees incurred” ignores the plain language of the statute and distorts its objective. Indemnity is not the objective of this statute. This statute is calculated to level the playing field so that aggrieved insureds can find competent counsel to represent them.” (Emphasis in original; footnote omitted.) Forthuber v. First Liberty Ins. Corp., __ So.3d __ (Fla. 5th DCA, No. 5D16-2599, 11/17/2017), 2017 WL 5503828.
If the contract so provides, a prevailing party may be awarded fees for litigating the amount of fees to be recovered. [Added 10/30/17]
Antaramian entered into a “Consulting Agreement” with Trial Practices, Inc. (“TPI”) under which TPI was to provide “various trial support services” for Antaramian in his suit against a third party. Per the Agreement TPI was to receive 5% of any gross recovery that Antaramian obtained through verdict or settlement. Antaramian and the third party settled, with each party dropping its claims. Antaramian refused to pay TPI, asserting that he owed TPI nothing since he did not obtain a gross recovery. TPI sued Antaramian for breach of contract.
The jury found for Antaramian, who then sought prevailing party fees pursuant to a clause in the Consulting Agreement which provided in part: “[The] prevailing party in any action arising from or relating to this agreement will be entitled to recover all expenses of any nature incurred in any way in connection with the matter, whether incurred before litigation, during litigation, in an appeal, . . . or in connection with enforcement of a judgment, including, but not limited to, attorneys' and experts’ fees.” The court awarded prevailing party fees to the Hahn law firm, which was substituted for Antaramian at his death. The award included fees for litigating the amount of fees to which Hahn was entitled. TPI appealed.
The Second DCA affirmed. “Both the Florida Supreme Court and this court have recognized that when parties are seeking attorneys’ fees pursuant to a statute, the parties are not necessarily entitled to recover attorneys’ fees for litigating the amount of fees. . . . However, in this case, the attorneys’ fees and costs were not awarded pursuant to a statute but were instead awarded pursuant to the fee-shifting provision in the Consulting Agreement.” The fee provision “was broad enough to encompass the award of fees and costs for litigating the amount of attorneys’ fees.” The appeals court declined to rewrite the contract to relieve TPI of its obligation.
The court also rejected TPI’s argument that Hahn was not entitled to prevailing party fees “because Antaramian improperly paid expert witness fees to fact witnesses.” Antaramian paid more than the statutory $5 per day to fact witnesses. Rule 4-3.4(b) does not make it “unethical or illegal for a party to pay fact witnesses reasonable compensation for their preparation for, attendance at, or testimony at trial.” The Rule does not conflict with F.S. 92.142, regarding the state’s payment to witnesses. “The statute restricts payments to witnesses for their attendance and thus presumably their actual testimony at trial. But the rule addresses payments for entirely different and compensable items: witnesses’ expenses incurred in connection with their attendance and testimony at trial and reasonable compensation for the time spent by the witnesses in preparing for, attending, and testifying at trial so long as the payments are not conditioned on the content of the witnesses’ testimony. Thus we interpret the rule to mean that witnesses may be compensated not only for travel related expenses, such as airfare, car rentals, and hotel expenses, but also for a witness's time spent in responding to discovery and appearing at depositions.” (Footnote omitted.)
The court certified the following question to the Florida Supreme Court as one of great public importance: “Does Rule 4-.34(b) of the Rules Regulating The Florida Bar permit a party to pay a fact witness for the witness’s assistance with case and discovery preparation?” Trial Practices, Inc. v. Hahn Loeser & Parks, LLP, __ So.3d __ (Fla. 2d DCA, Nos. 2D13-6051, 2D14-86, 10/25/2017) (on clarification), 2017 WL 4798944.
Court may consider party’s litigation conduct in awarding fees in domestic case under F.S. 61.16, even if party that benefits has superior financial position. [Added 9/27/17]
In a divorce case, Wife made allegations against Husband regarding her fears for her safety and that of her minor children, as well as seeking a domestic violence injunction against Husband. According to the appeals court, the “allegations were false.”
Wife sought fees under F.S. 61.16 at the final hearing based on her need and Husband’s ability to pay. The trial court found that Wife had need and Husband had ability to pay. The court further noted, however, “that it could also consider ‘the history of the litigation,’ and found that ‘just about the entirety of the Wife’s fees were the result of her misconduct.’” After detailing Wife’s conduct and her “unreasonable legal positions,” the court only partially granted Wife’s fee request. Wife appealed.
Fourth DCA affirmed. The court discussed prior case law concerning application of F.S. 61.16, and pointed out that the statute did not limit consideration to the parties’ respective financial resources. The court concluded: “It is thus well-established that ‘a court may consider all the circumstances surrounding the suit in awarding fees under section 61.16.’ Rosen [v. Rosen], 696 So.2d  at 701 (emphasis added). That is precisely what the trial court here did. . . . The purpose of section 61.16 is to ensure that both parties can obtain competent representation. It does not enable a party to engage in misconduct, rack up a massive amount of fees, and then force the other party to pay merely because they have the means to do so. The trial court did not abuse its discretion in awarding Former Wife only a portion of the fees she sought.” Rosaler v. Rosaler, __ So.3d __ (Fla. 4th DCA, No. 4D15-1832, 8/30/2017), 2017 WL 3726773.
Court abused its discretion by sua sponte reducing hourly fee for prevailing party’s counsel based on judge’s personal opinion of what appropriate rate was. [Added 9/25/17]
Defendant prevailed in a mortgage foreclosure suit brought against her. Defendant moved for fees and a contingency risk multiplier. At the hearing, the opposing party (whose counsel had withdrawn) was unrepresented. Defendant’s expert testified that the requested hourly rate of $325 was reasonable. The court pointed out that the lawyers had only 2 years of experience. The court “made a lengthy oral ruling, chastising [Defendant’s] attorneys for what the court perceived as (1) overbilling secretarial work by labeling it as paralegal work and (2) requesting a contingency multiplier in a case where a multiplier was unwarranted.” Noting that it was not required to accept the expert’s opinion “as gospel,” the court entered an order approving fees at rates of $200 and $250 per hour.
The Second DCA reversed the portion of the order regarding the lawyers’ hourly rates and instructed the trial court to award fees using the requested hourly rate of $325. The trial court’s order did not make specific findings regarding any of the 8 factors specified in Fla. Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985). Nor did the order include justification for the hourly rates the court determined were reasonable.
“The appeals court concluded: “We recognize that when evaluating the reasonableness of a requested fee award, judges should not ‘abandon what [they] learned as lawyers or [their] common sense.’ . . . But even though the trial court was not bound by the expert’s opinion, we cannot affirm the trial court’s award when ‘the record is totally devoid of any evidence to support a conclusion that the award was reasonable.’ . . . Here, the judge did not indicate that her determination of reasonable hourly rates was rooted in her experience as a lawyer, nor did she explain why the varying rates that she applied were more reasonable than the single rate that [Defendant’s] attorneys proposed (and all of the evidence adduced at the fee hearing supported). Her only apparent justification for reducing the hourly rate was her personal opinion of what attorneys should charge based on their number of years in practice. This alone does not constitute competent, substantial evidence.” (Citations omitted.) Westaway v. Wells Fargo Bank, N.A., __ So.3d __ (Fla. 2d DCA, No. 2D16-3683, 9/2/2017), 2017 WL 3791168.
Although it affirmed prevailing party fees, Fourth DCA reduced amount awarded due to prevailing party’s “limited success.” [Added 9/6/17]
The Petersons hired Hecht Consulting Corp., a public adjuster, in connection with hurricane damage to their home. The contract fee was 10% of the insurance proceeds recovered, and there was a provision for attorney’s fees to the prevailing party in the event of a suit. The Petersons got about $100,000 from their insurer. Hecht sued to enforce the contract. Ultimately the dispute was settled for $3000 to Hecht, exclusive of any prevailing party fees.
The trial court determined that Hecht was the prevailing party and awarded it $29,025 in fees. The Petersons appealed.
The Fourth DCA affirmed the determination that Hecht was the prevailing party, but reduced the amount of the fee award. “[U]nder any view, [Hecht] achieved limited success in the underlying litigation. [Hecht] lost at summary judgment on its most lucrative count – civil theft. [Hecht] then spent an exorbitant amount of time pursuing a simple breach of contract suit wherein his maximum recovery was $10,000. Even this endeavor was limited in its success as [Hecht ]’s recovery, $3,000, was less than a third of the amount sought and less than amounts offered by [the Petersons] at the onset of the litigation. Under the facts of the case, the court should have reduced the lodestar amount based on the results obtained.” Peterson v. Hecht Consulting Corp., __ So.3d __ (Fla. 4th DCA, No. 4D16-1329, 8/9/2017), 2017 WL 3411904.
Court erred in denying both parties’ motions for prevailing party fees, where one party prevailed on the significant issues in case. [Added 8/18/17]
Subcontractor HRI sued general contractor DFI for DFI’s alleged failure to pay for roofing work done by HRI. DFI counter-claimed for work it did to repair a leak in the roof. The trial court denied both parties’ motions for fees, finding that neither party prevailed on significant issues. HRI appealed and DFI cross-appealed.
The Fifth DCA concluded that the trial court erred in not awarding prevailing party fees to HRI. “At trial, HRI was the prevailing party based on the trial court's finding that DFI breached the implied covenant of good faith and fair dealing and because HRI was entitled to recover damages when it had been paid nothing by DFI before that point. While DFI prevailed on its counterclaim, the $180 it was awarded was only a small fraction of its $7378.80 request, and it was not substantial enough to override the outcome on HRI’s complaint.” Hough Roofing, Inc. v. Don Facciobene, Inc., __ So.3d __ (Fla. 5th DCA, No. 5D15-2878, 7/21/2017), 2017 WL 3091578.
Proposals for settlement were ambiguous and thus would not support fee award because of discrepancy between language in proposals and releases. [Added 8/16/17]
Dowd sued his uninsured motorist carrier, Geico. Geico served 2 proposals for settlement on Dowd. The proposals were not accepted. After a verdict for Dowd of just $5000, Geico moved for fees based on the proposals. The trial court found that the proposals were not ambiguous and granted the motion for fees.
The Third DCA disagreed and reversed, noting that, under Fla.R.Civ.P. 1.442, “[w]hile perfection is not required, clarity is.” The language in the releases attached to the proposals was broader than the proposals themselves. “A discrepancy between a limited proposal of settlement and a much broader release, as in this case, creates the type of ambiguity that runs afoul of the particularity requirement in the Rule. [Citation omitted.] Here, [Dowd] may still have had a viable PIP claim against Geico and it is unclear under the terms of the releases whether such a claim was intended to be included among those being released. While it is not a ‘compulsory’ claim as set forth in the proposals, it may fall under the umbra of the broader release language. Accordingly, [Dowd]’s decision to accept or reject the proposals was reasonably affected by the ambiguity created among the documents.” Dowd v. Geico General Ins. Co., __ So.3d __ (Fla. 3d DCA, No. 3D15-1725, 6/28/2017), 2017 WL 2791447.
Court erred in awarding fee in wrongful death case entirely to law firm that represented survivors, but did not represent personal representative. [Added 8/10/17]
Minor died in an auto accident. His parents hired a law firm (“Z&S”) to represent them in pursuing a wrongful death action. Neither parent qualified to be personal representative (“PR”). Decedent’s brother was appointed PR and was represented by a different law firm (“M&M”). Each law firm had a contingent fee agreement. Each firm filed a wrongful death suit. Ultimately about $205,000 was recovered from 2 insurance companies. The PR filed an accounting showing a fee to M&M. Z&S objected, arguing that it was entitled to the fee. The trial court awarded the full fee of $50,000 to Z & S (even through Z & S had indicated that M&M should get 20% of the fee). PR appealed.
The Second DCA reversed and remanded. The trial court apparently awarded the entire fee to Z&S because it “became active in the matter before” M&M. In doing so, the court failed to apply the principles governing allocation of the fee in a wrongful death case when one or more of the survivors are represented by separate counsel, as set forth by the Florida Supreme Court in Wiggins v. Estate of Wright, 850 So.2d 444 (Fla. 2003). The trial court is to “determine the attorneys’ fee awards by compensating the personal representative’s attorney out of the total settlement proceeds, reduced by the amount necessary to reasonably compensate the other survivors’ attorneys for their services in representing those survivors in the proceedings.”
On remand, the trial court “shall reconsider the allocation of the $50,000 attorney’s fee between the two law firms based on the provisions of the [Wrongful Death] Act and the principles stated in [controlling case law]. Thus, the trial court must award the full $50,000 contingent fee to [M&M] and then reduce the fee award in a manner commensurate with the value, if any, of the services that [Z&S] provided to the statutory survivors,” Parents. Heiston v. Schwartz & Zonas, LLP, __ So.3d __ (Fla. 2d DCA, No. 2D16-3417, 7/7/2017), 2017 WL 2882944.
Court erred in denying motion for fees after finding rejected proposal for settlement to be ambiguous. [Added 8/7/17]
Defendant served Plaintiff with a proposal for settlement providing that the “parties will execute a joint stipulation for dismissal with prejudice of the action.” The proposal was not accepted. After a judgment that was less than 75% of the Defendant’s offer, Defendant moved for fees under F.S. 768.79. The trial court denied the motion as ambiguous and not strictly complying with Fla.R.Civ.P. 1.442, which requires that the proposal “state with particularity” the proposal’s nonmonetary terms. “Specifically, plaintiff argued that defendant’s proposal was ambiguous because it was contingent on the execution of a ‘joint stipulation for dismissal’ even though there was only one plaintiff and, at any rate, failed to provide the language of the stipulation of dismissal.” Defendant appealed.
The Fourth DCA reversed, noting that a proposal fails to meet the “particularity” requirement if an ambiguity in the proposal could reasonably affect the offeree’s decision. Under State Farm Mutual Automobile Insurance Co. v. Nichols, 932 So. 2d 1067 (Fla. 2006), the particularity requirement is met if the proposal includes either the language of the proposed release or a summary of the proposed release that eliminates any reasonable ambiguity about its scope. The proposal in this case was sufficiently clear. “[T]he dismissal condition contained in defendant’s proposal was sufficiently clear to allow plaintiff to make an informed decision without requiring additional clarification. [Fla.R.Civ.P.]1.420(a)(1) allows the plaintiff in a lawsuit to effectuate a voluntary dismissal without order of the court ‘by filing a stipulation of dismissal signed by all current parties to the action. Unless otherwise stated in the notice or stipulation, the dismissal is without prejudice . . . .’ Following the instruction of Rule 1.420(a)(1), the proposal stated that as a condition of settlement, ‘[t]he parties will execute a joint stipulation for dismissal with prejudice of the action.’ As this was a one count, one plaintiff negligence lawsuit, there is no question as to what a dismissal could or would entail. The only possibility of ambiguity concerned whether the action would be dismissed with prejudice, and the language in the proposal clarified that the dismissal would be with prejudice.” Sherman v. Savastano, __ So.3d __ (Fla. 4th DCA, No. 4D16-2793, 6/21/2017), 2017 WL 2665064.
Both parties denied “prevailing party” appellate fees in construction case appeal because each prevailed on significant issues. [Added 8/4/17]
The Bauers and Ready Windows litigated a construction lien case regarding window installation. The trial court found the contract divisible into particular amounts for various products, services, and permit fees. The court found for each party on various claims, and entered a judgment for Ready Windows of about $9000 (less than what it sought).
The Bauers appealed and Ready Windows cross-appealed. The judgment was affirmed regarding both the appeal and the cross-appeal.
Each party then filed motions for “prevailing party” appellate fees under F.S. 713.29 and Fla.R.App.P. 9.400. The Third DCA denied both motions, ruling that, pursuant to Trytek v. Gale Industries, Inc., 3 So.3d 1194 (Fla. 2009), neither party was a prevailing party. The court concluded: “After thoroughly examining the record, under the ‘significant issues’ test of Moritz [v. Hoyt Enterprises, Inc., 604 So.2d 807 (Fla. 1992)] and Prosperi [v. Code, Inc., 626 So.2d 1360 (Fla. 1993)], we conclude that each party lost on their appeal, while each party successfully defended that part of the judgment in their favor on the other party’s cross-appeal. . . . Because both parties prevailed on significant issues, this Court finds that appellate fees are not warranted for either party.” Bauer v. Ready Windows Sales & Service Corp., __ So.3d __ (Fla. 3d DCA, No. 3D16-1171, 6/21/2017), 2017 WL 2664680.
Finding ambiguity in defendant’s auto insurance policy, Supreme Court rules that insurer is responsible for paying plaintiff’s fees and costs resulting from unaccepted offer of judgment. [Added 7/19/17]
Plaintiff sued Defendant for injuries suffered in an auto accident. Plaintiff served Defendant with a $50,000 proposal for settlement, which was not accepted. At trial the jury returned a verdict of almost $244,000 for Plaintiff. Plaintiff then joined Defendant’s insurer, GEICO, to the judgment and moved for fees and costs under F.S. 768.79. The court awarded fees and costs against GEICO and Defendant jointly and severally.
GEICO appealed, and the First DCA affirmed. Government Employees Ins. Co. v. Macedo, 190 So.3d 1155 (Fla. 1st DCA 2016). The First DCA certified conflict with the Second DCA case of Steele v. Kinsey, 801 So.2d 297 (Fla. 2d DCA 2001).
The Florida Supreme Court approved the First DCA’s decision. The Additional Payments section of Defendant’s policy was ambiguous and so “must be construed in favor of coverage for the costs and attorneys’ fees awarded against the insured pursuant to [F.S. 768.79,” the offer of judgment statute.”
The policy provision at issue provided: “ADDITIONAL PAYMENTS WE WILL MAKE UNDER THE LIABILITY COVERAGES. 1. All investigative and legal costs incurred by us. . . . 4. We will upon request by an insured, provide reimbursement for the following items: . . . (c) All reasonable costs incurred by an insured at our request.” The Court explained: “[T]he use of the [undefined] term ‘costs’ along with ‘legal expenses’ creates an ambiguity regarding whether attorneys’ fees are included or excluded.” An ambiguous provision must be construed in favor of coverage. The Court further pointed out that the policy gave GEICO complete control of the defense, and so the fees and costs indeed were “incurred by an insured at [GEICO’s] request.” Government Employees Ins. Co. v. Macedo, __ So.3d __ (Fla., No. SC16-935, 7/13/2017), 2017 WL 2981812.
Sanctions order under F.S. 57.105 is reversed because 21-day “safe harbor” letter failed to strictly comply with Fla.R.Jud.Admin. 2.516(b)(1)(E). [Added 7/17/17]
Mother and Father were in a child custody dispute. Mother filed a petition, and Father responded with a motion to dismiss. Father also sent Mother a “safe harbor letter” telling her he would seek sanctions if she did not dismiss her petition. Father then moved for sanctions under F.S. 57.105. The trial court dismissed Mother’s petition and granted the sanctions motion against her. Mother appealed.
The Fourth DCA reversed because Father’s “safe harbor letter” failed to strictly comply with the requirements of Fla.R.Jud.Admin. 2.516(b)(1)(E). That rule requires that the document be attached in PDF format, a link to the document on a court clerk website, and certain information in the subject line and body. Strict compliance with rule 2.516 is mandatory, and Father failed to comply. “His letter failed to contain 'SERVICE OF COURT DOCUMENT,' followed by the case number in the subject line, and did not include in the body of the email the case number, name of the initial party, and title of the document served. He also failed to attach a PDF copy or link containing his motion for sanctions. His letter’s non-compliance requires us to reverse the sanctions order.” Estimable v. Prophete, __ So.3d __ (Fla. 4th DCA, No. 4D16-725, 6/7/2017), 2017 WL 2457249.
First DCA clarifies meaning of “good faith” offer under offer of judgment statute. [Added 7/10/17]
In reversing a judgment on other grounds, the First DCA also addressed a party’s argument that the opponent’s proposal for settlement was a nominal offer that was not made in good faith and thus should not support an award of fees under F.S. 768.79. The parties argued that the First DCA had made inconsistent rulings on the standard to be used for determining whether an offer was made in good faith. The court did not agree, stating: “While we find that the case law is not inconsistent, we reiterate that, for purposes of the offer of judgment statute, a nominal offer is made in good faith where the offeror has a reasonable basis to believe that its exposure to liability is minimal.”
The court examined a number of cases, then concluded by summarizing: “[I]t appears that the no-exposure standard articulated in General Mechanical [Corp. v. Williams, 103 So.3d 974 (Fla. 1st DCA 2012)] originated from language in Peoples Gas [Sys., Inc. v. Acme Gas Corp., 689 So.2d 292 (Fla. 3d DCA 1997)], which was then adopted in Event Services [America, Inc. v. Ragusa, 917 So.2d 882 (Fla. 3d DCA 2005)] – but neither opinion clearly adopts this standard. In turn, this Court cited Event Services in explaining the appropriate standard to determine whether a nominal offer is made in good faith. Because this Court and other district courts have generally applied the Arrowood [Indemnity Co. v. Acosta, Inc., 58 So.3d 286 (Fla. 1st DCA 2011)] minimal-exposure standard, and because Event Services – the case on which General Mechanical relies – appears to be a deviation from the standard generally used in the Third District, the appropriate standard is whether the offeror had a reasonable basis to conclude that his/her exposure was nominal or minimal. This is the standard the trial court should apply on remand to determine whether Taylor’s offer of judgment was made in good faith, pursuant to section 768.79(7)(a).” Taylor Engineering, Inc. v. Dickerson Florida, Inc., __ So.3d __ (Fla. 1st DCA, No. 1D15-4782, 5/31/2017), 2017 WL 2350115.
Fee award in dissolution case reversed because award was based solely on relative income of parties, apparently without consideration of anything else. [Added 6/25/17]
Former Husband appealed an award of fees to Former Wife. The Second DCA affirmed on all issues except the trial court’s order requiring Former Husband to pay 70% of Former Wife’s fees and costs.
F.S. 61.16 requires that a court awarding fees in a dissolution case must consider “the relative financial resources of the parties.” In this case, however, it appeared from the record that the trial court based the fee award “solely on the relative incomes of the parties and did notindicate that it considered anything besides the parties’ disparate incomes.” The appeals court remanded for reconsideration, “taking into consideration the overall relative financial resources of the parties.”
Richards v. Weber, __ So.3d __ (Fla. 2d DCA, Nos. 2D15-4586, 2D16-2162, 5/24/2017), 2017 WL 2270126.
Where neither fees nor punitive damages were pleaded, court erred in ruling that offer of settlement was invalid because it did not state whether fees were part of claim settlement or include amount for punitive damages. [Added 6/9/17]
Plaintiff moved for fees under F.S. 768.79 and Fla.R.Civ.P. 1.442 based on an unaccepted offer of settlement. The trial court denied the motion, ruling that the offer was invalid because: “(1) it did not state whether attorney’s fees were part of the claim to be settled, and (2) it did not state the amount offered to settle a claim for punitive damages.” Plaintiff appealed.
The First DCA reversed, relying on Kuhajda v. Borden Dairy Co. of Alabama, LLC, 202 So.3d 391 (Fla. 2016): “In Kuhajda, the Court held that ‘if attorney's fees are not sought in the pleadings an offer of settlement is not invalid for failing to state whether the proposal includes attorney's fees and whether attorney's fees are part of the legal claim.’ Id. at 393. This holding squarely rejects the first reason that the trial court found [Plaintiff]’s proposal for settlement to be invalid. It likewise undermines the second reason because, to paraphrase the district court decision approved by the Court in Kuhajda, it would make no sense to require the offeror to state in its proposal for settlement that the offer does not include punitive damages when the plaintiff did not claim an entitlement to them and could not recover them because of the failure to plead. See id. at 396 (quoting Bennett v. Am. Learning Sys. of Boca Delray, Inc., 857 So.2d 986, 988-89 (Fla. 4th DCA 2003)).” Aguado v. Miller, __ So.3d __ (Fla. 1st DCA, No. 1D16-4589, 5/16/2017). 2017 WL 2126625.
Court erred in awarding fees to condo association in litigation with unit owners, where owners prevailed on substantial issues despite final judgment for association. [Added 6/1/17
Condo Association petitioned for a receiver for units that were delinquent in paying assessments. A receiver was appointed and later successfully sought modification of the order to grant the receiver “blanket authority to cast votes on behalf of” the delinquent unit owners. One unit owner filed an emergency motion to limit the receiver’s authority to cast votes, arguing that the order was “in direct violation of the Association’s governing documents and contrary to Florida law.”
Unit owners filed a separate action against the Association. It was consolidated with the receivership case. Ultimately the court appointed a successor receiver, but the appointment order “eliminated the prior receivers’ power to vote on behalf of” delinquent unit owners and thus “substantially granted the relief sought by the Owners” in the case they had filed. On cross-motions for summary judgment, the court entered a final judgment in favor of the Association. The court also awarded fees to the Association. Unit owners appealed.
The Third DCA reversed. “The circuit court orders do not state a basis for the fee award. However, the Association sought fees under three statutory provisions: [F.S.] 718.1255(l) (2014) (fees for litigating after alternative dispute resolution); [F.S.] 718.303 (2014) (fee award for prevailing party in action to enforce Declaration); and [F.S.] 57.105 (2014) (fees for frivolous litigation).” The court concluded that “an award of attorney’s fees to the Association is not warranted under any of the three statutes.” As to F.S. 718.1255(1) prevailing party fees, the court noted that the final judgment in the Association’s favor was not determinative; rather, “the unit owners prevailed in achieving a significant benefit they sought from the litigation: precluding the receiver from any further wrongful exercise of voting rights.” Gonzalez v. International Park Condominium I Ass’n, Inc., __ So.3d __ (Fla. 3d DCA, No. 3D16-690, 4/26/2017), 2017 WL 1494004.
Court abused discretion in denying 57.105 motion for fees againsta party that improperly sought fees from impleaded defendants in proceedings supplementary. [Added 5/10/17]
Appellee had sued Defendant on a securities fraud claim and prevailed. In proceedings supplementary, Appellee filed a complaint against Appellants, alleging that Defendant had fraudulently transferred two motor vehicles to them. The trial court entered judgment against Appellants, and also ordered that Appellants were jointly and severally liable to Appellee for attorney’s fees and costs. Appellee filed a motion for fees. Appellants responded with their own motion for fees pursuant to F.S. 57.105, which “cited to statutory and case law for the proposition that the trial court could not award attorney’s fees against impleaded defendants in proceedings supplementary.” Appellee did not withdraw his fee motion within the 21-day safe harbor provided by section 57.105(4). The court granted Appellee’s motion and awarded fees against Appellants.
In response to Appellant’s motion for rehearing, however, the court reversed itself and set aside the award of fees to Appellee. Despite this, the court denied Appellant’s motion for fees under 57.105 after Appellee’s counsel stated that he opposed the motion, without offering a reason.
The Fourth DCA reversed, concluding that the trial court abused its discretion in denying Appellants’ motion for 57.105 fees. The “clear and overwhelming statutory and case law” made it clear that impleaded defendants cannot be liable for fees in proceedings supplementary, and thus Appellee’s motion for fees was frivolous. Further, citing F.S. 57.105(3)(c), the appeals court ordered Appellee’s counsel, not Appellee, to pay the fees. Paul v. Avrahami, __ So.3d __ (Fla. 4th DCA, No. 4D16-1456, 4/12/2107), 2017 WL 1363963.
Prevailing party may be awarded fees for litigating amount of fees to be recovered if contract so provides; payment of “reasonable compensation” to fact witnesses for “preparing for, attending, and testifying at proceedings” is permitted by Rule 4-3.4(b) and does not affect right to fees. [Added 5/3/17]
Antaramian entered into a “Consulting Agreement” with Trial Practices, Inc. (“TPI”) under which TPI was to provide “various trial support services” for Antaramian in his suit against a third party. Per the Agreement TPI was to receive 5% of any gross recovery that Antaramian obtained through verdict or settlement. Antaramian and the third party settled, with each party dropping its claims. Antaramian refused to pay TPI on the ground that he owed TPI nothing since he did not obtain a gross recovery. TPI sued Antaramian for breach of contract.
The jury found for Antaramian, who then sought prevailing party fees pursuant to a clause in the Consulting Agreement that provided in part: “[The] prevailing party in any action arising from or relating to this agreement will be entitled to recover all expenses of any nature incurred in any way in connection with the matter, whether incurred before litigation, during litigation, in an appeal, . . . or in connection with enforcement of a judgment, including, but not limited to, attorneys' and experts’ fees.” The court awarded prevailing party fees to the Hahn law firm, which was substituted for Antaramian at his death. The award included fees for litigating the amount of fees to which Hahn was entitled. TPI appealed.
The Second DCA affirmed. “Both the Florida Supreme Court and this court have recognized that when parties are seeking attorneys’ fees pursuant to a statute, the parties are not necessarily entitled to recover attorneys’ fees for litigating the amount of fees. . . . However, in this case, the attorneys’ fees and costs were not awarded pursuant to a statute but were instead awarded pursuant to the fee-shifting provision in the Consulting Agreement.” The fee provision “was broad enough to encompass the award of fees and costs for litigating the amount of attorneys’ fees.” The appeals court declined to rewrite the contract to relieve TPI of its obligation.
The court also rejected TPI’s argument that “Hahn is not entitled to prevailing party attorneys’ fees because Antaramian improperly paid expert witness fees to fact witnesses.” Antaramian paid more than the statutory $5 per day to fact witnesses. Rule 4-3.4(b) does not make it “unethical or illegal for a party to pay fact witnesses reasonable compensation for their preparation for, attendance at, or testimony at trial.” Accordingly, the court stated: “[W]e reject TPI’s argument that Antaramian’s conduct of paying the attorney fact witnesses anything more than $5 per day constituted illegal conduct that negated his right to recover prevailing party attorneys’ fees and costs. And to the extent that TPI argues that it could not have reasonably foreseen that Antaramian would pay the attorney fact witnesses anything more than $5 per day, we likewise reject that assertion based on the fact that rule 4-3.4(b) permits the payment of reasonable compensation to witnesses for preparing for, attending, and testifying at proceedings.”
The trial court had awarded Antaramian part of the compensation paid to the fact witnesses as part of the cost award, and the Second DCA affirmed that award. Trial Practices, Inc. v. Hahn Loeser & Parks, LLP, __ So.3d __ (Fla. 2d DCA, Nos. 2D13-6051, 2D14-86, 4/12/2017), 2017 WL 1363916.
Court erred in denying fees to party whose proposals for settlement were not accepted, on ground that proposals were not served by email. [Added 4/28/17]
Plaintiffs served defendant tobacco companies with proposals for settlement in their tort suit. The proposals were not accepted. After Plaintiffs obtained a sufficient verdict, they moved for fees based on their proposals for settlement. Defendants argued that the motion should be denied because the proposals were not served by email. The trial court denied Plaintiffs’ fee motion “because they did not serve their proposals for settlement on the tobacco companies’ attorneys by e-mail, and therefore did not strictly comply with [F.S.] 768.79 and [Fla.R.Civ.P.] 1.442.”
The Second DCA reversed, concluding that F.S. 768.79 and rule 1.442 do not mandate email as the exclusive method for service of pretrial proposals for settlement on a party. The statute and rule make it clear that proposals for settlement ordinarily are not to be filed. Fla.R.Civ.P. 1.080 requires that pleadings, orders, and “every other document filed in the action” must be served in accordance with Fla.R.Jud.Admin. 2.516, which requires email service of such documents (emphasis by court). The appeals court observed that, “[s]imply stated, proposals for settlement are not subject to the service requirements of rule 2.516 because the proposals do not meet rule 1.080(a)’s threshold requirement that they be ‘filed in the action.’”
The court summarized: “[W]e hold that the mandatory e-mail service requirement set forth in rule 2.516(b)(1) does not apply to service of pretrial proposals for settlement. In the context of proposals for settlement, the mandatory e-mail service requirement in rule 2.516(b)(1) is only triggered when the proposals are attached to motions for acceptance or enforcement under section 768.79(3) or rule 1.442(d) that are filed in court.” Boatright v. Philip Morris USA Inc., __ So.3d __ (Fla. 2d DCA, No. 2D15-1781, 4/12/2017), 2017 WL 1356285
Court erred in awarding fees in dissolution case based on its own formula to provide “disincentive” to future litigation rather than following requirements of F.S. 61.16. [Added 4/26/17]
In a post-dissolution proceeding the trial court entered an order awarding fees and costs “on the percentage basis of the disparity in income between the parties.” The court stated that it would not award Wife 100% of her fees “because it forms a disincentive for a party to economize if somebody else is paying all of their fees.” Wife appealed.
The Third DCA reversed because “the trial court erred in applying its own formula rather than the requirements set out in [F.S. 61.16] and controlling case law including Rosen v. Rosen, 696 So2d 697 (Fla. 1997), and Canakaris v. Canakaris, 382 So2d 1197 (Fla. 1980).” The court should have relied on “the financial condition of each party and [Husband’s] litigious behavior” rather than using its own formula.
n attempting to clarify its ruling, the court noted: “That is not to say, and we do not hold today, that a trial court in a chapter 61 matter may not award only a portion of the fees and costs incurred by a party. We hold only that it was error below to apply a formula based on the parties’ respective incomes to determine the amount to be awarded to [Wife].” Rorrer v. Orban, __ So.3d __ (Fla. 3d DCA, No. 3D16-652, 3/29/2017), 2017 WL 1177588.
Court erred in denying fee motion on ground that movant’s proposal for settlement was ambiguous because attached release used broad language typical of standard general release. [Added 4/23/17]
Husband and Wife Plaintiffs sued Defendant for a slip and fall. Defendant served a proposal for settlement on Wife (who fell) and Husband (who had a loss of consortium claim). The proposals were identical, except for the amounts offered. After Defendant won a summary judgment, it moved for fees based on the proposals for settlement. The trial court denied the motion for fees, ruling that the proposals had “narrow language offering to release only the Defendant” while the general release attached to the proposals had “broader language releasing individuals or entities in addition to [the defendant] and releasing claims or potential claims more than and broader than only the claims related to the facts and circumstances in this lawsuit.” Defendant appealed.
The Fourth DCA reversed. The broader language in question in the release was typical of that found in general releases. Acknowledging the directive of the Supreme Court not to “nitpick” settlement proposals in search of ambiguity, the court concluded that “the proposals for settlement and accompanying releases were sufficiently clear and definite to allow the plaintiffs to make an informed decision on whether to accept the proposals.” Costco Wholesale Corp. v. LLanio-Gonzalez, __ So.3d __ (Fla. 4th DCA, No. 4D15-4869, 3/22/2107), 2017 WL 1076927.
Referring in release to “defendants” (plural) does not create reasonable ambiguity in proposal for settlement, per Third DCA. [Added 4/16/17]
Atlantic sued Swift and Key Haven for conversion. Atlantic served a proposal for settlement, including a proposed release, on each defendant. Neither defendant accepted. After the trial court entered judgment in its favor, Atlantic moved for fees pursuant to F.S. 768.79 and the rejected settlement offers. The court denied the fee motion, agreeing with defendants’ argument that “the offer of settlement was ambiguous because it appeared to be conditioned on acceptance by both defendants.” Atlantic appealed.
The Third DCA reversed. To be enforceable a proposal for settlement must be clear enough to permit each offeree to fully consider the terms of the proposal. Noting the Florida Supreme Court’s directive that course should not be “’nitpicking’ proposals for settlement to search for ambiguity,” the court emphasized that only if an ambiguity could “reasonably affect the offeree’s decision” would a court determine that the proposal would not support a fee award (quoting State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.3d 1067, 1079 (Fla. 2006) (emphasis added by court)).
The appeals court looked at the complete language of the proposals and the release form, and found no requirement that both defendants must agree in order to effectuate the settlement. “While in some instances the Swift and Key Haven are referred to as defendants, plural, this is simply a matter of convenience. The settlement amount is apportioned between the two defendants and the general release form allows for the defendants to sign separately. Thus, the proposal meets the Nichols requirement that the proposal be sufficiently clear and definite to allow each offeree to make an informed decision as to whether to settle. Reading the references to ‘defendants’ to create an ambiguity would involve the type of ‘nitpicking’ which the Anderson [v. Hilton Hotels Corp., 202 So.3d 846, 852 (Fla. 2016)] court expressly warns against.” Atlantic Civil, Inc. v. Swift, __ So.3d __ (Fla. 3d DCA, No. 3D15-1594, 3/1/2017), 2017 WL 815362.
In order for reciprocal fee provisions of F.S. 57.105 to apply, there must be contract betweene parties. [Added 4/15/17]
Bank filed a foreclosure action against Fitzgerald. Fitzgerald contended that Bank lacked standing because Bank was not the lawful assignee of the note and mortgage. She demanded attorney’s fees “pursuant to the terms of the agreement between the parties” and F.S. 57.105. The trial court entered judgment for Fitzgerald on the ground that Bank failed to establish standing. The court also awarded fees to Fitzgerald under F.S. 57.105(7).
The Third DCA reversed. “Bank argues that because the trial court found that the Bank lacked standing to bring suit under both the mortgage and note, Fitzgerald cannot recover fees pursuant to section 57.105(7). We agree.” The court pointed out that F.S. 57.105(7) “cannot transform a contract’s unilateral fee provision into a reciprocal obligation where, as here, no contract exists between the parties.” The court cited with approval HFC Collection Center, Inc. v. Alexander, 190 So.3d 1114 (Fla. 5th DCA 2016). Bank of New York Mellon Trust Co., N.A. v. Fitzgerald, __ So.3d __ (Fla. 3d DCA, No. 3D16-981, 3/1/2017), 2017 WL 815352.
Court erred in denying law firm’s motion for charging lien in dissolution case on ground that share of marital assets awarded to firm’s client was not “tangible fruits” of firm’s services. [Added 4/10/17]
Law Firm represented Husband in a marriage dissolution. Husband was awarded a share of the marital assets in an equitable distribution. Law Firm moved for a charging lien. The trial court denied the motion, stating in its order that Husband ordinarily would be entitled to a share of the martial assets under the statute, and there was “not enough evidence to indicate that the wife would have been awarded more than fifty percent of the [Roth IRA and JP Morgan pension account] but for” the Firm’s representation. Accordingly, the court concluded that those 2 financial items “cannot be considered as ‘tangible fruits’” of the Firm’s services.
The Fourth DCA reversed. Charging liens may be pursued in dissolution cases. The Firm met the 4 requirements for a charging lien: “(1) an express or implied contract between attorney and client; (2) an express or implied understanding for payment of attorney’s fees out of the recovery; (3) either an avoidance of payment or a dispute as to the amount of fees; and (4) timely notice.” (Citations omitted). The appeals court concluded: “Here, there was a written legal representation agreement providing for a charging lien and the husband was awarded a share of marital assets. The trial court’s justification for denying the law firm’s charging lien has no basis in well-established case law. In fact, our courts recognize that a charging lien may attach to assets awarded in equitable distribution.” Menz & Battista, PL v. Ramos, __ So.3d __ (Fla. 4th DCA, No. 4D16-1634, 3/29/2017), 2017 WL 1177608.
Judgment on pleadings affirmed against defense law firm whose claim to “success fee” was unenforceable due to failure to include essential terms. [Added 4/7/17]
Law Firm sued Former Clients for legal fees based on 2 separate provisions in the engagement agreement: a monthly retainer fee provision; and a “success fee” provision. The latter provided: “A success fee of a percentage, to be agreed upon amongst the parties hereto, based on the amount by which Client’s Judgment amount is reduced will be charged as a success fee NOT TO EXCEED 1 MILLION. For example, if Client owes $10,000.00 on the Judgment and through the Appeal and/or the Settlement, that amount is reduced to $6,000.00 saving Client $4,000.00, then the Firm success fee shall be a percentage of $4,000.00. Success fee shall be payable to the Firm immediately upon termination of the Appeal and/or the full execution of the Settlement Agreement.” (Emphasis by court.)
The trial court entered judgment on the pleadings on all counts for Clients. Law Firm appealed.
The Third DCA affirmed the portion of the trial court’s order regarding the claim for the success fee. “We agree with the trial court’s finding that the success fee provision, which fails to include essential terms, is unenforceable. See John Alden [Life Ins. Co. v. Benefits Management Associates, Inc.], 675 So.2d  at 189 [(Fla. 3d DCA 1996)] (holding that a contractual provision to negotiate a bonus payment in the future ‘was merely an ‘agreement to agree’ in the future about the bonus and hence unenforceable as a matter of law’).” Piero Salussolia, P.A. v. Nunnari, __ So.3d __ (Fla. 3d DCA, No. 3D16-436, 3/29/2017), 2017 WL 1177591.
Insurer’s proposal for settlement was ambiguous because it was inconsistent with release form attached to proposal. [Added 3/25/17]
Insured was injured when a driver lost control of a vehicle and struck Insured. Insured sued the driver and owner of the vehicle as well as his own uninsured motorist carrier (“Insurer”). Insurer made a $50,000 proposal for settlement, which Insured did not accept. The net verdict rendered against Insurer at trial was $3700. Insurer’s motion for attorney’s fees based on its rejected proposal was granted. Insured appealed.
The Fifth DCA reversed. The court agreed that the release attached to Insurer’s proposal for settlement created ambiguities. Specifically, the release required Insured “to falsely represent that he had no unmarried dependents able to bring a claim for loss of consortium.” F.S. 768.0415 allows unmarried dependent children to bring loss of consortium claims based on negligence. “[Insured’s] waiver for loss of consortium claims, when read together with section 768.0415, is ambiguous because it would amount to an outright falsehood.”
The court noted that “[a] proposal for settlement is considered ambiguous, and therefore unenforceable, if it is impossible for the offeree to meet its terms” and that, in this case, “it would have been impossible for [Insured] to comply with the loss-of-consortium waiver because [Insured] could not honestly represent that he had no qualifying dependents under section 768.0415.”
The court closed by emphasizing that “it is better practice for an offeree to raise any ambiguities in proposals for settlement with the offeror before trial” (emphasis by court). Diecidue v. Lewis, __ So.3d __ (Fla. 2d DCA, No. 2D15-1852, 2/10/2017), 2017 WL 535447.
Reserving jurisdiction to award fees does not override the Fla.R.Civ.P. 1.525 requirement that motions for fees be served within 30 days of entry of judgment where judgment did not determine entitlement to fees. [Added 3/15/17]
Appellees litigated with Appellant Hovercraft regarding the use of boat slips. Appellees prevailed in a final judgment entered on June 29, 2010. Hovercraft timely filed a motion for new trial or rehearing that was not denied until November 24, 2010. A few weeks later Appellees filed motions for attorney’s fees.
At the fee hearing the issue was “was whether Appellees were entitled to attorney’s fees in light of the fact that they had filed their request for fees, pursuant to [Fla.R.Civ.P.] 1.525, outside of the thirty-day window after the filing of the final judgment.” Appellees relied on AmerUs Life Insurance Co. v. Lait, 2 So.3d 203 (Fla. 2009), to argue that the 30-day requirement did not apply if a party prevailed in a case and the trial court reserved jurisdiction on the issue of fees. Hovercraft responded that “Appellees misread AmerUs” and that the 30-day deadline is inapplicable only when the court determines a party’s entitlement to fees in the final judgment and reserves jurisdiction on the amount of fees. Hovercraft asserted that the court had merely reserved jurisdiction on the issue of fees but had not determined entitlement. The court granted fees to Appellees, stating that “Appellees’ entitlement to attorney’s fees had already been determined, thus eliminating the need for the thirty-day requirement of rule 1.525” and that, as an alternative basis, Appellees had established excusable neglect based on alleged understandings between the parties that they were not held to the deadline. Hovercraft appealed.
The Fifth DCA reversed. “Rule 1.525 establishes a bright-line time requirement for motions seeking attorney’s fees and costs,” establishing a deadline of 30 days after the filing of the judgment for service of the fee motion. This time limit is not tolled by a motion for rehearing. “Reserving jurisdiction to award fees does not override the thirty-day requirement of rule 1.525. . . . In order to avoid the thirty-day requirement, the judgment itself must determine entitlement to attorney’s fees and costs and reserve jurisdiction only as to the amount owed.” The trial court’s judgment did not determine entitlement to fees, so the court erred.
The appeals court went on to reject the “excusable neglect” theory. Hovercraft of South Florida, LLC v. Reynolds, __ So.3d __ (Fla. 5th DCA, No. 5D15-2629, 2/10/2017), 2017 WL 539865
Sitting en banc, Fourth DCA recedes from prior opinion and concludes that appellate fees may be recovered under F.S. 742.0345 in paternity actions.
The appellee in the appeal of a paternity action moved for appellate attorney’s fees. Applying the “plain meaning” of F.S. 742.045, the Fourth DCA receded from its 1999 opinion (Gilbertson v. Boggs, 743 So.2d 123 (Fla. 4th DCA 1999) and granted the fee motion. The statute allows for fee awards in “any proceeding under this chapter” (emphasis by court). “We thus recede from Gilbertson and grant attorney’ fees to the appellee, conditioned upon a showing of need and ability to pay, and remand for the trial court to make that determination, as well as the amount of a reasonable fee, should need and ability be established.”
The court certified conflict with the Fifth DCA’s decision in Starkey v. Linn, 727 So.2d 386 (Fla. 5th DCA 1999). Beckford v. Drogan, __ So.3d __ (Fla. 4th DCA, No. 4D16-947, 1/27/2017), 2017 WL 383429.
Fees cannot be awarded based on rejected proposal for settlement unless proposal was served by email in compliance with Fla.R.Jud.Admin. 2.516. [Added 3/3/17]
Appellant had served a proposal for settlement on Appellee. The trial court denied Appellant’s motion for fees. Although served by email, the proposal did not comply with the requirements of Fla.R.Jud.Admin. 2.516, “which sets forth certain requirements for service by e-mail.”
The Third DCA affirmed. “Appellant relies upon the language in rule 2.516(a) which provides that ‘every pleading subsequent to the initial pleading and every other document filed in any court proceeding . . . must be served in accordance with this rule on each party.’ Appellant contends that because the proposal for settlement is neither a pleading nor a ‘document filed in any court proceeding,’ it is not subject to the requirements of rule 2.516.” (Emphasis by court.)
Appellant was correct that a party may not file a proposal for settlement with the court contemporaneously with serving it on the other party, but that did not resolve the question. “The relevant language is contained in subdivision (b) of rule 2.516, which provides in pertinent part: ‘All documents required or permitted to be served on another party must be served by e-mail, unless the parties otherwise stipulate or this rule otherwise provides.” (Emphasis by court.) The proposal for settlement is “permitted to be served on another party.” Accordingly, the court concluded: “We find this language plain and unambiguous, and hold that a proposal for settlement falls clearly within the scope of rule 2.516(b) and is subject to that rule’s requirements.” Wheaton v. Wheaton, __So.3d __ (Fla. 3d DCA, No. 3D16-490, 2/15/2017), 2017 WL 608523.
Supreme Court rules that $100,000 fee limitation in $10 million claims bill for law firm’s client was unconstitutional impairment of attorney-client contract. [Added 2/14/17]
Reversing the First DCA, the Florida Supreme Court ruled that a $100,000 attorney’s fee limitation in a $10 million claims bill passed by the Florida Legislature for a law firm’s client was an unconstitutional impairment of the attorney-client contract.
Law Firm represented Clients in a contingent fee medical malpractice case arising from a catastrophic brain injury sustained at birth. The jury returned a verdict for $30 million. Sovereign immunity limited the judgment against the defendant hospital to $200,000. Law Firm pursued a claims bill in the Florida Legislature. The legislature passed a $10 million claims bill, but limited the amount of additional attorneys’ fees to $100,000.
Law Firm (and others who worked on the case with the Firm) petitioned the guardianship court seeking $2.5 million in fees. Law Firm argued that the fees and costs limitation in the claims bill was unconstitutional. The Fourth DCA affirmed. Searcy, Denney, Scarola, Barnhart & Shipley, P.A. v. State, 194 So.3d 349 (Fla. 4th DCA 2015).
On review, the Florida Supreme Court addressed the following certified question: “After the enactment of [F.S. 768.28] and the adoption of Florida Senate Rule 4.81(6), is it constitutionally permissible for the Florida Legislature to limit the amount of attorney’s fees paid from a guardianship trust established by a legislative claims bill?” The Court answered in the negative “when such limitation impairs an existing contract.” It is entirely within the Legislature’s discretion whether to pass a claims bill, but “the claims bill may not unconstitutionally impair the preexisting contract between the claimant and the law firm for attorneys’ fees, which may be recovered subject to the limits set forth in [F.S. 768.28(8) (2007)], Florida’s limited waiver of sovereign immunity.”
The Supreme Court’s decision in Gamble v. Wells, 450 So.2d 850 (Fla. 1984), which was relied upon by the First DCA, was not controlling because it predated the adoption of the waiver of statutory immunity statute.
The Court further explained: “[T]the law firms’ services were in accord with Senate Rule 4.81(6), which provides that a claims bill may not be considered by the Senate until all available administrative and judicial remedies have been exhausted. We are constrained to conclude that in entering into this contract with the Edwards family, and in pursuing this case through trial, appeal, and the legislative claims bill process, Searcy Denney and the other firms assisting the family were acting in good faith and with the expectation that, pursuant to contract, fees may be recovered in an amount up to 25 percent of any portion of the judgment recovered – regardless of the method or vehicle of recovery.” Searcy, Denney, Scarola, Barnhart & Shipley, P.A. v. State, __ So.3d __ (Fla., SC15-1747, 1/31/2017), 2017 WL 411332.
Homeowners who prevailed in litigation with voluntary homeowners’ association are entitled to fees under F.S. 712.08 (MRTA) but not under reciprocal provision of F.S. 57.105 because court ruled that no contract existed between parties. [Added 2/10/17]
Homeowners lived in a neighborhood that had a voluntary homeowners’ association, which meant that the Association was not a statutory homeowners’ association under Florida law. The Association adopted an Amended and Restated Declaration of Covenants and Restrictions (ARD) and, by a vote of its members, attempted to convert itself into a mandatory association. Homeowners did not consent to this. The Association took steps to levy an assessment on Homeowners, who responded by filing suit for slander of title and declaratory and injunctive relief (ARD case). Homeowners also filed a separate suit challenging the Association’s authority to file a MRTA Preservation Notice (MRTA case). The trial courts ruled for Homeowners in both cases.
Homeowners moved for fees under the reciprocal provisions of F.S. 57.105 in the ARD case and F.S. 712.08 in the MRTA case. The fee motions were granted in both cases. The Association appealed.
The Fifth DCA reversed the fee order in the ARD case. “‘[W]here a motion for attorney’s fees is based on a prevailing-party provision of a document, the fact that a contract never existed precludes an award of attorney’s fees.” David v. Richman, 568 So.2d 922, 924 (Fla. 1990). Because the trial court found that no contract existed between [the Association] and [Homeowners], the [Homeowners] were not entitled to attorney’s fees under the fee provision of the ARD. Thus, we reverse the order awarding attorney’s fees to the [Homeowners] and against [the Association] pursuant to the ARD and section 57.105(7).”
The appeals court affirmed the fee award in the MRTA case, despite the fact that the Association did not meet the statutory definition. “[S]ection 712.08 prohibits false filings by any ‘person.’ It is irrelevant that [the Association] was not a homeowners’ association as defined in section 720.301 or a homeowners’ association entitled to enforce use restrictions. As a corporation, [the Association] is a ‘person’ under the statute.” Sand Lake Hills Homeowners Ass’n, Inc. v. Busch, __So.3d __ (Fla. 5th DCA, No. 5D16-21, 1/20/2017), 2017 WL 242574.
First DCA grants certiorari petition and quashes order setting evidentiary hearing on motion for fees filed after case had been voluntarily dismissed. [Added 2/8/17]
Petitioner filed administrative complaints against Respondent. Respondent filed motions to dismiss but did not raise the issue of fees or sanctions. The motions to dismiss were denied, but Petitioner voluntarily dismissed the complaints. After the voluntary dismissals, Respondent moved for fees under F.S. 120.595(1) (administrative fee-shifting statute). When faced with an order to show cause why its motion should be dismissed because it did not satisfy the statutory definition of a prevailing party, Respondent amended its motion to seek fees as a sanction under 120.569(2). The administrative law judge ordered an evidentiary hearing.
Petitioner sought certiorari review in the First DCA. The appeals court granted the petition and quashed the order. “Because Petitioner’s filing of the notice of voluntary dismissal divested the administrative law judge of jurisdiction to entertain either of Respondent’s motions for fees or sanctions, this case should have been closed before Respondent filed its original motion asserting an entitlement to attorneys’ fees. . . . Accordingly, we hold that the order setting this matter for an evidentiary hearing would cause irreparable harm, because it would lead to the disclosure of irrelevant information.” (Emphasis in original; citation omitted.) Fla. Agency for Health Care Administration v. Planned Parenthood of Southwest and Central Florida, Inc., __ So.3d __ (Fla. 1st DCA, No. 1D16-3317, 1/19/2017), 2017 WL 213914.
Reading proposal for settlement and attached release as a whole, Fourth DCA concludes that it was not ambiguous and reverses denial of fees. [Added 1/25/17]
Kiefer, along with co-defendants, was sued in a professional negligence case by Sunset Beach. He served as proposal for settlement on Sunset Beach that was not accepted. The 9-paragraph proposal for settlement “clearly relate[d] solely to Kiefer and Sunset Beach.” A release attached to the proposal, however, contained 2 paragraphs that did not include Kiefer’s name. As a result of those 2 paragraphs, the trial court denied Kiefer’s motion for fees on the ground that his unaccepted proposal for settlement was ambiguous.
The Fourth DCA reversed. “[W]e look to the entirety of a proposal for settlement when determining whether it is clear and definite, and we do so without ‘nitpicking’ in a search for ambiguity. Reviewing the proposal for settlement served by Kiefer within that framework, we do not believe it to be ambiguous.” The 2 paragraphs seized upon by the trial court “are in between other paragraphs of the release that state: (1) Kiefer and Sunset Beach wish to resolve all claims; (2) Kiefer will pay a sum to Sunset Beach in exchange for his dismissal; (3) Sunset Beach would release Kiefer; and (4) Sunset Beach would file a dismissal as to Kiefer. When read as a whole, the release related to Sunset Beach and Kiefer, and not the other co-defendants.” Kiefer v. Sunset Beach Investments, LLC, __ So.3d __ (Fla. 4th DCA, No. 4D16-707, 1/4/2017), 2017 WL 33642.
Noting that parties should not “nit-pick” proposals for settlement in searching for ambiguity, Fourth DCA rules that proposal using term “claims” instead of “damages” was not ambiguous. [Added 1/21/17]
Defendant insurer prevailed in a suit brought by Plaintiff on an uninsured motorist claim. Plaintiff’s complaint did not request attorney’s fees. Defendant moved for fees based on its unaccepted proposal for settlement. The trial court denied the motion on two grounds: (1) the proposal stated that it would resolve “all claims” rather than the language “all damages” that is used in Fla.R.Civ.P. 1.442; and (2) by failing to state whether fees were part of the legal claim. Defendant appealed.
The Fourth DCA reversed. As to the ambiguity argument, the court pointed out that, as the Supreme Court has stated, “parties should not ‘nit-pick’ the validity of a proposal for settlement based on allegations of ambiguity unless the asserted ambiguity could ‘reasonably affect the offeree’s decision’ on whether to accept the proposal for settlement.” Carey–All Transp., Inc. v. Newby, 989 So.2d 1201, 1206 (Fla. 2d DCA 2008) (quoting [State Farm Mut. Auto. Ins. Co. v.] Nichols, 932 So.2d [1067 (Fla. 2006)] at 1079).” Plaintiff contended that using “claims” instead of damages” was ambiguous because it was not clear whether accepting the proposal would waive Plaintiff’s claims for MedPay and PIP benefits in addition to his claim for uninsured motorist benefits. The court rejected this contention, noting that “[n]o other claimed benefits were at issue besides UM benefits, as the plaintiff did not plead in the complaint any entitlement to Med Pay or PIP benefits.”
Regarding the failure of the proposal to address fees, the appeals court relied on Kuhajda v. Corden Dairy Co. of Alabama, LLC, 202 So.3d 391 (Fla. 2016) in concluding that “[i]t was unnecessary for the proposal to state ‘whether attorney’s fees are part of the legal claim’ when plaintiff’s complaint did not request attorney’s fees.” American Home Assurance Co. v. D’Agostino, __ So.3d __ (Fla. 4th DCA, No. 4D15-2148, 1/4/2017), 2017 WL 34565.
“Significant issues” tests applies when party seeks fees as damages pursuant to F.S. 713.31(2)(c) in construction lien case. [Added 1/16/17]
Contractor filed a construction lien and sued Homeowner. Homeowner argued that the lien was fraudulent. Ultimately the trial court struck the lien as fraudulent, but entered a net final judgment for Contractor of almost $59,000. Each party sought fees and costs. Both motions were denied. Each party appealed.
Homeowner’s fee motion was denied because the trial court found that Contractor, rather than Homeowner, prevailed on the significant issues in the case. Homeowner contended that it was error to apply the “significant issues” test where, as here, a party seeks fees as damages pursuant to F.S. 713.31(2)(c). The court rejected this argument. “[T]he trial court properly applied the “significant issues” test of Moritz [v. Hoyt Enters., Inc., 604 So.2d 807 (Fla. 1992)] and Prosperi [v. Code, Inc., 626 So.2d 1360 (Fla. 1993)] in denying the homeowner’s claim for attorney’s fees under the current version of section 713.31. First, under the plain language of section 713.31(2)(c), an ‘owner against whose interest in real property a fraudulent lien is filed’ may recover attorney’s fees only ‘[i]f the lienor who files a fraudulent lien is not the prevailing party.’ Thus, the plain language of the statute contemplates that a lienor who files a fraudulent lien could still be the prevailing party. Second, the 2007 amendment to section 713.31(2)(c) indicates that the legislature intended to eliminate a lienor’s automatic liability for attorney’s fees where the lienor files a fraudulent lien. Newman v. Guerra, __ So.3d __ (Fla. 4th DCA, Nos. 4D15-1515, 4D15-2588, 1/4/2017), 2017 WL 33702.
After plaintiff voluntarily dismissed suit within 21-day safe harbor period in F.S. 57.105, defendant could not base motion for sanctions on Fla.R.Civ.P. 1.525 and court’s inherent power. [Added 1/3/17]
Bank filed a foreclosure action against Defendant, who responded with a F.S. 57.15 motion alleging that Bank’s suit was frivolous. Bank voluntarily dismissed the suit within the 21 day safe harbor period in F.S. 57.105(4). Defendant then sought sanctions under Fla.R.Civ.P. 1.525 and “the inherent power of the Court.” The trial court denied the motion.
On certiorari review, the First DCA agreed with the trial court. Defendant could not the jurisdictional bar of the safe harbor rule “by filing the motion under Florida Rule of Civil Procedure 1.525 and basing the request for sanctions on “the inherent power of the Court” rather than section 57.105(1).”
See also Buckingham Estates Homeowners Ass’n, Inc. v. Metcalf, __ So.3d __ (Fla. 5th DCA, No. 5D16-2899, 12/19/2016), 2016 WL 7406489 (“trial court lacks jurisdiction to hear a motion for sanctions under section 57.105 that is filed after the case is voluntarily dismissed”). Bank of America, N.A. v. Turkanovic, __ So.3d __ (Fla. 1st DCA, No. 1D16-3416, 12/1/2016), 2016WL 7032965.
Court erred in applying “significant issue” test to deny fee award to party who prevailed on only causes of action for which fees were recoverable. [Added 1/2/17]
Olson was sued by Homeowner’s Association regarding alleged restrictive covenant violations. The suit had 4 counts, and attorney’s fees were recoverable on 3 of the counts. Olson prevailed on all 3 of those counts. The trial court, however, denied both parties’ motions for fees, “having determined that there was no prevailing party because each party prevailed on ‘significant issues’ in this case.” Olson appealed, arguing that the court erred in applying the “significant issues” test and that because he prevailed on the only causes of action for which attorney’s fees were recoverable, the court was required to award him fees. He also argued that he was, in fact, the prevailing party.
The Fifth DCA agreed with Olson and reversed, awarding him fees. The “significant issues” test outlined by the Supreme Court in Mortiz v. Hoyt Enterprises, Inc., 604 So.2d 807 (Fla. 1992), was inapplicable. In Moritz, the parties’ fee claims were based on a contract that had a prevailing party fee provision. “In contrast, the present case involves four causes of action, three of which would provide for an award of attorney’s fees and one which does not.” The court concluded: “Under these circumstances, the ‘significant issues’ analysis outlined in Moritz does not apply . . .” Olson v. Pickett Downs Unit IV Homeowner’s Ass’n, __ So.3d __ (Fla. 5th DCA, No. 5D15-4043, 12/2/2016), 2016 WL 7176752.
Not necessary to be prevailing party in order to obtain fee award in Florida Birth-Related Neurological Injury Compensation Association dispute. [Added 12/31/16] Lampert v. Florida Birth-Related Neurological Injury Compensation Ass’n, __ So.3d __ (Fla 1st DCA, No. 1D-4815, 11/14/2016), 2016 WL 6684172.
Party seeking appellate fees as sanction pursuant to F.S. 57.105 must comply with Fla.R.App.P. 9.410(b), not rule 9.400. [Added 12/21/16] Jarrette Bay Investments Corp. v. BankUnited, N.A., __ So.3d __ (Fla. 3d DCA, No. 3D15-1283, 11/30/2016), 2016 WL 6992220.
Florida guardianship law authorizes fee award to a lawyer for emergency temporary guardian, even where ultimately there is no judicial determination of incapacity. [Added 12/12/16] In re Guardianship of Beck, __ So.3d __ (Fla. 2d DCA, No. 2D15-239, 11/18/2016) (on rehearing), 2016 WL 6834145.
Third DCA affirms denial of fees based on proposal for settlement determined to be ambiguous when read together with an attached general release. [Added 12/9/16] South Florida Pool and Spa Corp. v. Sharpe Investment Land Trust Number J, __ So.3d __ (Fla. 3d DCA, No. 3D15-102, 11/16/2016), 2016 WL 6778649.
Court erred by applying wrong standard in ruling on motion for fees under F.S. 57.105. [Added 12/2/16] Infiniti Employment Solutions, Inc. v. MS Liquidators of Arizona, LLC, __ So.3d __ (Fla. 5th DCA, No. 5D14-583, 11/4/2016), 2016 WL 6664075.
Supreme Court decides that offers of settlement made to 3 related defendant entities may not be aggregated before being compared to final judgment for purposes of fee award under F.S. 768.79. [Added 11/28/16] Anderson v. Hilton Hotels Corp., __ So.3d __ (Fla., SC15-124, 11/3/2016), 2016 WL 6538663.
Supreme Court rules that, if fees are not sought in pleadings, offer of settlement is not invalid for not stating whether offer includes fees. [Added 11/10/1] Kuhajda v. Borden Dairy Co. of Alabama, LLC, __ So.3d __ (Fla., No. SC15-1682, 10/20/2016), 2016 WL 6137289,
Employer/carrier not liable for workers comp fees if it accepts responsibility for medical expenses within 30 days after claimant files petition, even if those expenses are not paid within 30-day period. [Added 11/8/16] Sansone v. Frank Crum / Frank Winston Crum Ins., Inc., __ So.3d __ (Fla. 1st DCA, No. 1D15-5116, 11/2/2016), 2016 WL 6496630
Clause in arbitration agreements requiring each party to pay own fees violates public policy because it negates statutory fee-shifting provision. [Added 11/4/16] Hochbaum v. Palm Garden of Winter Haven, LLC, __ So.3d __ (Fla. 2d DCA, No. 2D16-89, 10/5/2016), 2016 WL 5806210.
Claimant’s lawyer cannot be required to file verified motion for fees and costs after JCC has dismissed all of claimant’s pending petitions for benefits. [Added 9/27/16] Law Offices of William F. Souza v. Truly Nolen, Inc., __ So.3d __ (Fla. 1st DCA, No. 1D16-118, 9/9/2016), 2016 WL 4723678.
“Passing reference” to equitable relief in complaint does not render offer of judgment in case invalid. [Added 9/13/16] Faith Freight Forwarding Corp. v. Anias, __ So.3d __ (Fla. 3d DCA, No. 3D14-2653, 9/28/2016) (on rehearing), 2016 WL _______.
In child custody action, court improperly awarded fees to father based on mother’s “selfish” attempt to change custody where mother did not have ability to pay. [Added 9/7/16] Rogers v. Wiggins, __ So.3d __ (Fla. 2d DCA, No. 2D15-991, 8/24/2016), 2016 WL 4468093.
On rehearing, Fourth DCA denies appellate fees to defendants under FDUTPA where they did not prevail on all pleaded legal theories in case. [Added 9/3/16] Banner v. Law Office of David J. Stern, P.A., __ So.3d __ (Fla. 4th DCA, No. 4D14-1440, 8/24/2016) (on rehearing), 2016 WL 4493351.
First DCA reverses denial of stipulated quantum meruit attorney’s fee in worker’s compensation case. [Added 9/2/16] Salzman v. Reyes, __ So.3d __ (Fla. 1st DCA, No. 1D16-593, 8/18/2016), 2016 WL 4396040.
Appellate fees may be conditionally granted to policyholders under F.S. 627.428, regardless of whether proceeding is appeal or petition for writ of certiorari. [Added 8/19/16] Allen v. State Farm Florida Ins. Co., __ So.3d __ (Fla. 2d DCA, No. 2D15-3114, 8/17/2016), 2016 WL 4375612.
Court erred in denying fees to former wife in dissolution case that accrued after her “unreasonable” rejection of settlement offer. [Added 8/12/16] Palmer v. Palmer, __ So.3d __ (Fla. 1st DCA, No. 1D15-3325, 8/9/2016), 2016 WL _______.
Court erred in denying fees to devisee of real property under will, because by successfully defending action concerning the property he effectuated testator’s intent. [Added 8/8/16] Hampton v. Estate of Allen, __ So.3d __ (Fla. 5th DCA, No. 5D15-2250, 8/5/2016), 2016 WL _______.
Certifying conflicts with other Districts, First DCA holds that trial court erred in ruling that section 57.105 fee award could not be entered in action for injunction for protection against violence. [Added 8/5/16] Hall v. Lopez, __ So.3d __ (Fla. 1st DCA, No. 1D15-0531, 7.28.2016), 2016 WL 4036093.
On its own initiative, court may order party to pay 57.105(1) fees when motion is filed by another party but moving party did not comply with safe harbor requirements, provided court is not “simply adopting the moving party’s defective motion.” [Added 7/11/16] Watson v. Stewart Tilghman Fox & Bianchi, P.A., __ So.3d __ (Fla. 4th DCA, No. 4D14-4599, 6/29/2016), 2016 WL 3540959.
Fifth DCA reverses fee award, ruling that proposals for settlement served on 2 defendants were ambiguous as to whether acceptance would resolve claims against both or only one defendant. [Added 7/7/16] Nunez v. Allen, __ So.3d __ (Fla. 5th DCA, No. 5D14-4386, 6/24/2016), 2016 WL 3452511.
Prevailing party fees under F.S. 57.105(7) may be awarded only when party seeking fees both prevails and is party to contract containing fee provision. [Added 7/1/16] Florida Community Bank, N.A. v. Red Road Residential, LLC, __ So.3d __ (Fla. 3d DCA, No. 3D15-2039, 6.8.2016), 2016 WL 3176813.
Court erred in applying multiplier to fee award in insurance litigation, where there was no showing that clients were unable to find counsel to represent them through trial absent multiplier. [Added 6/30/16] Florida Peninsula Ins. Co. v. Wagner, __ So.3d __ (Fla. 2d DCA, Nos. 2D15-1152, 2D15-1790, 6/1/2016), 2016 WL 306065.
Fourth DCA discusses standard to be used when court considers awarding fees under F.S. 57.105 for allegedly frivolous claim. [Added 6/28/16] Trust Mortgage, LLC. v. Ferlanti, __ So.3d __ (Fla. 4th DCA, No. 4D15-1437, 6/1/2016), 2016 WL 3065669
Proposal for settlement did not support motion for fees because it required party’s counsel to extinguish all third-party claims, even though there was no signature block for counsel. [Added 6/15/16] Florida Peninsula Ins. Co. v. Brunner, __ So.3d __ (Fla. 3d DCA, No. 3D15-1677, 6/8/2016), 2016 WL 3181908.
Per Second DCA, filing Fla.R.Civ.P. 1.090 motion to enlarge time to accept proposal for settlement does not automatically toll 30-day period for accepting proposal. [Added 6/4/16] Ochoa v. Koppel, __ So.3d __ (Fla. 2d DCA, No. 2D14-1866, 5/20/2016), 2016 WL 2941099.
Proposal for settlement under F.S. 768.79 and Fla.R.Civ.P. 1.442 that did not mention form of release or dismissal was not ambiguous and thus was enforceable. [Added 5/13/16] Manuel Diaz Farms, Inc. v. Delgado, __ So.3d __ (Fla. 3d DCA, No. 3D15-86, 5/11/2016), 2016 WL _______.
Insurer whose policy gave it the right to control insured’s defense is liable for fees imposed under F.S. 768.79 after insurer rejected proposal for settlement. [Added 5/12/16] Government Employees Ins. Co. v. Macedo, __ So.3d __ (Fla. 1st DCA, No. 1D15-2896, 5/6/2016), 2016 WL 2610605.
Fee award under F.S. 768.79 and Fla.R.Civ.P. 1.442 based on unaccepted proposals for settlement reversed because offeror failed to strictly comply with rule 1.442, which requires that proposal expressly state “whether attorney’s fees are part of the legal claim.” [Added 5/7/16] Deer Valley Realty, Inc. v. SB Hotel Associates LLC, __ So.3d __ (Fla. 4th DCA, Nos. 4D14-2051, 4D15-830, 4/27/2016), 2016 WL 1660619.
[See also Maines v. Fox, __ So.3d – (Fla. 1st DCA, Nos. 1D-14-5917, 1D15-0739, 5/3/2016), 2016 WL 1741950 (proposals unenforceable because ambiguities “prevented the proposals from strictly comporting with the requirements of rule 1.442 that proposals for settlement ‘state whether the proposal includes attorneys’ fees and whether attorneys’ fees are part of the legal claim’”).]
Defendant first sued as corporation, then as LLC when plaintiff amended complaint, entitled to recover fees under F.S. 768.79 based on proposal for settlement made by corporation defendant despite fact that defendant actually prevailed as LLC. [Added 5/6/16] Vanguard Car Rental USA, LLC v. Suttles, __ So.3d __ (Fla. 3d DCA, No. 3D15-723, 4/27/2016), 2016 WL 1658764.
Supreme Court holds that workers’ compensation fee statute is unconstitutional. [Added 4/28/16] Castellanos v. Next Door Co., __ So.3d __ (Fla., No. SC13-2082, 4/28/2016), 2016 WL _______.
Offer of judgment was valid and enforceable where offeror made claims for both monetary and non-monetary relief, but did not actually pursue non-monetary damages in litigation. [Added 4/28/16] MYD Marine Distributor, Inc. v. International Paint Ltd., __ So.3d __ (Fla. 4th DCA, Nos. 4D13-2496, 4D13-2671, 4D13-3685, 4D13-4530, 4D13-4779, 4/13/2016), 2016 WL 1445590.
Court properly awarded fees as sanction for party’s misconduct that resulted in mistrial but erred in including time spent for subsequent trials. [Added 4/27/16] Public Health Trust of Miami-Dade County v. Denson, __ So.3d __ (Fla. 3d DCA, No. 3D14-2953, 4/13/2016), 2016 WL 1445421.
Defendant who successfully defeated claim on ground that she had no contract with plaintiff cannot claim fees based on contract. [Added 4/26/16] HFC Collection Center, Inc. v. Alexander, __ So.3d __ (Fla. 5th DCA, No. 5D15-1177, 4/22/2016) (on rehearing), 2016 WL 1600324.
First DCA declares fee provisions in workers’ compensation law unconstitutional on First Amendment grounds. [Added 4/22/16] Miles v. City of Edgewater Police Department, __ So.3d __ (Fla. 1st DCA, No. 1D-15-0165, 4/20/2016), 2016 WL _______.
Contingency multiplier not permissible when court awarded fees against insurer, where attorney-client contract was nota true contingency agreement. [Added 4/21/16] Citizens Property Ins. Co. v. River Oaks Condominium II Association, Inc., __ So.3d __ (Fla. 2d DCA, No. 2D13-4331, 3/30/2016), 2016 WL 1234706.
Court improperly imposed section 57.105 sanctions on party for making claims without factual support, after allowing claim to survive summary judgment motion and motion for involuntary dismissal. [Added 4/19/16]
Casey petitioned in an attempt to reestablish a lost will purportedly executed by her deceased husband. Her petition was unsuccessful. “Casey’s petition survived a motion for summary judgment and a motion for involuntary dismissal during trial; however, at the conclusion of the trial the court was not persuaded by her evidence and it denied her petition.” The two respondents then moved for fees against Casey and her counsel under F.S. 57.105. “Finding Casey's claim without adequate factual support, the trial court granted [one respondent’s] motion for section 57.105 fees.”
The Second DCA reversed. The trial court abused its discretion in awarding fees against Casey and her counsel. F.S. 57.105(1) “only requires that a claim be supported by ‘material facts,’ which we have described as facts sufficient to establish a fact if accepted.” The appeals court stated that it “cannot reconcile the trial court's finding that Casey and her attorneys should have known her claim was without factual support with the fact that the trial court found her claim sufficient to survive both the motions [for summary judgment and for involuntary dismissal].” Casey v. Jensen, __ So.3d __ (Fla. 2d DCA, No. 2D14-3491, 3/23/2016), 2016 WL 1125180.
In dispute over fee award under F.S. 627.428, insurer had no standing to advance construction of contingent fee agreement to which it was neither party nor intended beneficiary. [Added 4/16/16] Companion Property & Casualty Ins. Co. v. Category 5 Management Group, LLC, __ So.3d __ (Fla. 1st DCA, No. 1D14-583, 3/17/2016), 2016 WL 1051790.
Second DCA upholds denial of a petition seeking approval of continent fee contract in excess of Bar’s maximum fee schedule. [Added 4/8/16] Mahany v. Wright’s Healthcare & Rehabilitation Center, __ So.3d __ (Fla. 2d DCA, No. 2D15-1553, 4/1/2016), 2016 WL 1273256.
Supreme Court denies appellate attorney’s fees to prevailing parties in legislative redistricting case. [Added 4/8/16] League of Women Voters of Florida v. Detzner (Fla., No. SC14-1905, 3/31/2016) (order denying fee motion).
First DCA denies prevailing parties fees in legislative redistricting case, applying “American Rule” and declining to adopt private attorney general doctrine. [Added 4/5/16] League of Women Voters of Florida v. Detzner, __ So.3d __ (Fla. 1st DCA, No. 1D14-5614, 3/24/2016), 2016 WL 1165421.
Court erred in not awarding prejudgment interest as part of an award of appellate attorney’s fees under F.S. 57.105. [Added 3/14/16] Wells v. Halmac Development, Inc., __ So.3d __ (Fla. 3d DCA, No. 3D12-3039, 2/3/2016), 2016 WL 403181.
First DCA constrained to strictly construe offer of judgment rule despite alleged “absurd, unjust result,” and certifies conflict to Supreme Court. [Added 2/14/16] Colvin v. Clements and Ashmore, P.A.,__ So.3d __ (Fla. 1st DCA, No. 1D15-1966, 1/15/2016), 2016 WL 167010.
In workers' compensation case, claimant was entitled to appellate fees after E/C filed an appeal, obtained extension to file initial brief, then dismissed appeal without filing brief. [Added 1/4/16] Thyssenkrupp Elevator Corp. v. Blackmon, __ So.3d __ (Fla. 1st DCA, No. 1D15-2515, 12/31/15), 2015 WL _______.
Charging lien does not apply to award of past due undifferentiated support accruing during pendency of divorce proceedings. [Added 12/29/15] Jaeger v. Jaeger, __ So.3d __ (Fla. 4th DCA, No. 4D15-1243, 12/16/2015), 2015 WL 8950258.
Court erred in granting former client’s motion to strike law firm’s charging and retaining lien without holding evidentiary hearing. [Added 12/28/15] Parrish & Yarnell, P.A. v. Spruce River Ventures, LLC, __ So.3d __ (Fla. 2d DCA, No. 2D14-3239, 12/11/2015), 2015 WL 8519438.
Litigation between condo association and unit owner is not subject to “only one prevailing party” rule for purposes of fee awards, per Fourth DCA. [Added 12/22/15] Environ Towers I Condominium Ass’n, Inc. v. Hokenstrom, __ So.3d __ (Fla. 4th DCA, No. 4D14-3376, 11/18/2015), 2015 WL 7273418.
Court erred in awarding guardian’s attorney less than full fee on gross recovery as specified in contingent fee contract. [Added 12/22/15] Hensley Chalfant, P.A. v. Guardianship of Flannigan, __ So.3d __ (Fla. 2d DCA, No. 2D13-3077, 11/18/2015), 2015 WL 7273373.
Court properly awarded fees to insured under F.S. 627.428 after auto insurer voluntarily dismissed dec action, but erred in awarding fees to insured’s passenger who sustained injuries and was treated. [Added 12/11/15] Explorer Ins. Co. v. Cajusma, __ So.3d __ (Fla. 5th DCA, Nos. 5D14-2608, 5D14-2934, 11/6/2015), 2015 WL 6757633.
Lawyer added as co-counsel in contingent fee case fails in claim for portion of fee, which is awarded in full to first lawyer because first lawyer’s contract with client was never modified. [Added 12/10/15] Anderson v. 50 State Security Service, Inc., __ So.3d __ (Fla. 3d DCA, No. 3D14-2540, 11/4/22015), 2015 WL 6735852.
Supreme Court addresses calculation of fees in eminent domain cases where condemning authority causes excessive litigation, ruling that application of formula in F.S. 73.092(1) is constitutionally deficient. [Added 12/2/15] Joseph B. Doerr Trust v. Central Florida Expressway Authority, __ So.3d __ (Fla., No. SC14-1007, 11/5/2015), 2015 WL 6748858.
Offer made by DOT under “Early Acquisition Program” was offer made outside eminent domain power and thus cannot be used as basis for calculating fees under F.S. 73.092. [Added 11/25/15] General Commercial Properties, Inc. v. Florida Dept. of Transportation, __ So.3d __ (Fla. 4th DCA, No. 4D14-0699, 10/14/2015), 2015 WL 5948530.
Court did not err in awarding fees to insureds who prevailed against insurer’s counterclaim despite losing on their breach of contract claim. [Added 11/25/15] Citizens Property Ins. Corp. v. Bascuas, __ So.3d __ (Fla. 3d DCA, Nos. 3D14-2434, 3D1-1549, 10/14/2015), 2015 WL 5964909.
Court erred in denying fees in dissolution case on ground that party seeking fees did not introduce testimony from lawyer who actually performed services. [Added 11/12/15] Cozzo v. Cozzo, __ So.3d __ (Fla. 3d DCA, No. 3D15-133, 10/7/2015), 2015 WL 5829812.
Fourth DCA addresses the definition of “contingency fee” in rejecting argument that no fee was due law firm under agreement for payment of earned fees. [Added 11/11/15] Wright v. Guy Yudin & Foster, LLP, __ So.3d __ (Fla. 4th DCA, No. 4D14-103, 10/7/2015), 2015 WL 5827944.
Defendant who successfully defeated claim on ground that she had no contract with plaintiff cannot claim attorney’s fees based on the contract. [Added 11/9/15] HFC Collection Center, Inc. v. Alexander, __ So.3d __ (Fla. 5th DCA, No. 5D15-1177, 10/30/2015), 2015 WL 6554404.
Judge of Compensation Claims erred in denying motion to strike employer/carrier’s response to claimant’s motion fees and thus had no basis on which to reduce amount of fees awarded. [Added 11/2/15] Nelson v. Pharmerica, __ So.3d __ (Fla. 1st DCA, No. 1D15-1582, 10/29/2015), 2015 WL 6388023.
Twice-served motion for F.S. 57.105 sanctions complied with 21-day safe harbor provision, despite certificate of service facially indicating non-compliance. [Added 10/14/15] Lopez v. Department of Revenue, __ So.3d __ (Fla. 3d DCA, No. 3D14-399, 9/30/2015), 2015 WL 5714695.
Proposal for settlement was not ambiguous just because it recited that offeror was willing to consider suggested changes to release attached to proposal. [Added 9/9/15] Wallen v. Tyson, __ So.3d __ (Fla. 5th DCA, No. 5D14-1564, 9/4/2015), 2015 WL 5165528.
Court erred in denying fees under offer of judgment statute one ground that another party actually paid offeror’s attorney’s fees. [Added 9/7/15] Key West Seaside, LLC v. Certified Lower Keys Plumbing, Inc., __ So.3d __ (Fla. 3d DCA, No. 3D13-2589, 9/2/2015), 2015 WL 5132383.
In dissolution case, trial court erred in not awarding fees to husband based on wife’s unsuccessful challenge of prenuptial agreement that provided for fees if party sought to have agreement voided. [Added 9/4/15] Berg v. Young, __ So.3d __ (Fla. 4th DCA, No. 4D13-2364, 9/2/2015), 2015 WL 5125418.
Offer of judgment is ambiguous because mutual releases contain names of individual lawyers who are members of law firms that are parties to action. [Added 8/22/15] Michele K. Feinzig, P.A. v. Deehl & Carlson, P.A., __ So.3d __ (Fla. 3d DCA, Nos. 3D14-2539, 3D14-904, 8/12/2015), 2015 WL 4747876.
Certifying conflict, First DCA rules that offer of judgment was ambiguous because it failed to state whether it included fees, even though fees were not sought in complaint. [Added 8/20/15] Borden Dairy Co. of Alabama, LLC v. Kuhajda, __ So.3d __ (Fla. 1st DCA, No. 1D14-4706, 8/14/2015), 2015 WL 4774629.
Court departed from essential requirements of law in ordering law firm to give former client immediate access to firm’s files, despite firm’s assertion of retaining liens on files. [Added 8/6/15] Conde & Cohen, P.L. v. Grandview Palace Condominium Ass’n, Inc., __ So.3d __ (Fla. 3d DCA, No. 3D15-1109, 8/5/2015.
Court abused its discretion in ordering former husband to pay former wife’s fees after equitably distributing parties’ property and equalizing income through alimony award. [Added 8/5/15] Hutchinson v. Hutchinson, __ So.3d __ (Fla. 1st DCA, No. 1D15-232, 7/29/2015), 2015 WL 4557045.
Third DCA sanctions lawyer and her client under F.S. 57.105 and Fla.R.App.P. 9.140 for making baseless assertions in brief. [Added 7/28/15] Aspen Air Conditioning, Inc. v. Safeco Ins. Co. of America, __ So.3d __ (Fla. 3d DCA, No. 3D14-1592, 7/22/2015), 2015 WL 4464404.
Motion for extension of time to accept settlement proposal that was never set for hearing did not toll time for acceptance of proposal. [Added 7/27/15] Three Lions Construction, Inc. v. the Namm Group, Inc., __ So.3d __ (Fla. 3d DCA, No. 3D14-880, 7/22/2015), 2015 WL 4464494.
Fourth DCA rejects law firm’s contention that $100,000 fee in $10 million claims bill for its client was an unconstitutional impairment of the attorney-client contract. [Added 7/22/15] Searcy Denney Scarola Barnhart & Shipley, P.A. v. State, __ So.3d __ (Fla. 4th DCA, No. 4D13-3497, 7/15/2015), 2015 WL 4269031.
Court erred in granting prevailing party fees to party who secured voluntary dismissal of complaint against them by paying amount in dispute. [Added 7/21/15] Blue Infiniti, LLC v. Wilson, __ So.3d __ (Fla. 4th DCA, Nos. 4D14-813, 4D14-887, 7/8/2015), 2015 WL 4098895.
Proposal for settlement under F.S. 768.79 not deficient because it failed to address loss of consortium claim maintained by offeree’s spouse or failed to apportion amount attributable to party who was solely vicariously liable. [Added 7/17/15] Miley v. Nash, __ So.3d __ (Fla. 2d DCA, No. 2D14-930, 7/10/2015).
Payment of attorney’s fees alone will not extend the statute of limitations applicable to workers’ compensation claims. [Added 7/15/15] Sanchez v. American Airlines, __ So.3d __ (Fla. 1st DCA, No. 1D14-4907, 7/14/2015).
Order imposing charging lien reversed and remanded because court failed to make necessary findings as to amount and reasonableness of fees. [Added 7/14/15] San Pedro v. Law Office of Paul Burkhart, __ So.3d __ (Fla. 4th DCA, No. 4D14-1849, 7/1/2015).
Requirement that court make express findings of bad faith when awarding fees as sanction under inherent authority applies regardless of whether award is against party or party’s lawyer. [Added 6/23/15] Goldman v. Estate of Goldman, __ So.3d __ (Fla. 3d DCA, No. 3D14-98, 6/17/2015), 2015 WL 3759598.
Lawyer’s charging lien cannot include expenses incurred in prosecuting lien, and may not enforced against alimony award if doing so would deprive former spouse of daily sustenance or minimal necessities of life. [Added 6/17/15] Tucker v. Tucker, __ So.3d __ (Fla. 4th DCA, No. 4D14-105, 5/27/2015), 2015 WL 3396664.
Law firm’s charging lien does not take priority over attorney’s fee indemnification provision in spousal agreement entered into before law firm was hired. [Added 6/8/15] Christopher N. Link, P.A. v. Rut, __ So.3d __ (Fla. 4th DCA, No. 4D12-4320, 5/20/2015), 2015 WL 2405650.
Fee award under F.S. 61.16 requires specific factual findings regarding financial need and ability to pay. [Added 5/9/15] Beckstrom v. Beckstrom, __ So.3d __ (Fla. 4th DCA, No. 4D14-929, 4/29/2015), 2015 WL 1934558.
Proposal for settlement under F.S. 768.79 not deficient because it failed to address loss of consortium claim maintained by offeree’s spouse. [Added 5/8/15] Miley v. Nash, __ So.3d __ (Fla. 2d DCA, No. 2D14-930, 4/29/2015), 2015 WL 1930290.
Fifth DCA addresses meaning of term “settled” in aee division agreement among law firms. [Added 4/25/15] Burlington & Rockenbach, P.A. v. Law Offices of E. Clay Parker, __ So.3d __ (Fla. 5th DCA, No. 5D13-2341, 4/17/2015), 2015 WL 1736915.
Supreme Court holds that settlement proposal by a single offeror toa single offeree that resolves claims of or against other parties is joint proposal subject to apportionment requirement of Fla.R.Civ.P. 1.442. [Added 4/25/15] Audiffred v. Arnold, __ So.3d __ (Fla., No. SC12-2377, 4/16/2015), 2015 WL 1724250.
Supreme Court holds that apportionment of settlement amount is required where offer of judgment is made by or to multiple parties. [Added 4/25/15] Pratt v. Weiss, __ So.3d __ (Fla., No. SC12-1783, 4/16/2015), 2015 WL 1724574.
Defendants entitled to prevailing party fees for successfully defending plaintiff’s contract claim, despite not prevailing on counterclaim. [Added 4/20/15] Padgett v. Kessinger, __ So.3d __ (Fla. 4th DCA, No. 4D14-229, 4/8/2015).
Statutory worker’s comp sliding scale fee formula applies separately to each lawyer involved in case. [Added 4/18/15] Urguelles v. El Oasis Cafe and Technology Ins. Co., __ So.3d __ (Fla. 1st DCA, No. 1D14-5333, 4/15/2015).
Law firm hit with section 57.105 sanctions for trying to collect fee against homestead property of client’s former spouse. [Added 41/3/15] Law v. Law, __ So.3d __ (Fla. 3d DCA, No. 3D14-911, 4/1/2015), 2015 WL 1449763.
Prevailing party attorney’s fees may not be awarded when a party successfully argues that the contract was void and unenforceable as a result of forged signatures. [Added 4/12/15] Bank of New York Mellon v. Mestre, __ So.3d __ (Fla. 5th DCA, No. 5D14-1649, 3/13/2015), 2015 WL 1071113.
Third DCA affirms that enforcement of charging lien in contingent fee case should take place in court where the underlying action is pending, but not until contingency has occurred. [Added 4/12/15] CK Regalis, LLC v. Thornton, __ So.3d __ (Fla. 3d DCA, No. 3D14-2289, 3/11/2015), 2015 WL 104400.
Fees may not be assessed against non-prevailing obligee ina Title IV-D child support enforcement action. [Added 4/6/15] Fla. Dept. of Revenue v. James, __ So.3d __ (Fla. 3d DCA, No. 3D13-211, 3/18/2015).
Insured entitled to statutory fees after insurer first disputed, then later paid, full claim under “stacked” uninsured motorist coverage. [Added 4/3/15] Shirtcliffe v. State Farm Mutual Auto. Ins. Co., __ So.3d __ (Fla. 5th DCA, No. 5D13-4553, 4/2/2105).
Current version of F.S. 57.105 does not require express finding of lawyer’s bad faith before fees can be assessed as sanction. [Added 3/21/15] Pronman v. Styles, __ So.3d __ (Fla. 4th DCA, No. 4D12-2279, 3/4/2015) (en banc).
Guardianship statute does not authorize court to order payment of fees from alleged incapacitated person when guardianships not established. [Added 3/20/15] Steiner v. Guardianship of Steiner, __ So.3d __ (Fla. 2d DCA, No. 2D13-5083, 3/4/2015), 2015 WL 894259.
If words and numerals in rejected proposal for settlement do not match, proposal is ambiguous and will not support fee award. [Added 3/19/15] Government Employees Ins. Co. v. Ryan, __ So.3d __ (Fla. 4th DCA, No. 4D13-2615, 3/11/2015).
Fifth DCA reverses fee award resulting from rejected offer for settlement, wheree offer was ambiguous as to whether it applied to potential contract claims related to tort claim at issue. [Added 3/18/15] Vogan v. Cruz, __ So.3d ___ (Fla. 5th DCA, No. 5D14-213, 3/6/2015).
Statutory formula for computing attorney’s fees in workers’ compensation cases can apply separately to more than one “claim” handled in a claimant’s case. [Added 3/16/15] Cortes-Martinez v. Palmetto Vegetable Co., LLC, __ So.3d __ (Fla. 1st DCA, No. 1D14-1825, 3/10/2015).
Order denying motion to cancel lawyer’s charging lien was not final order and thus may not be appealed. [Added 12/31/14] Bloomgarden v. Mandel, __ So.3d __ (Fla.3d DCA, No. 3D14-556, 12/31/2014).
Third DCA strikes motion for F.S. 57.105 fees as premature, when it was filed before opposing party filed any papers in case. [Added 12/31/14] Reznek v. Chase Home Finance, LLC, __ So.3d __ (Fla.3d DCA, No. 3D14-1499, 12/10/2014), 2014 WL 6990570.
Whether offer of judgment was made in good faith is based on objective criteria, and claim for fees based on offer does not waive attorney-client privilege or work product protection. [Added 12/29/14] -- Butler v. Harter, __ So.3d __ (Fla. 1st DCA, No. 1D14-1342, 12/2/2014), 2014 WL 6755985.
“All or nothing” proposal for settlement made by multiple offerors to single offeree not ambiguous and thus valid. [Added 12/24/14] -- Duong v. Ziadie, __ So.3d __ (Fla. 4th DCA, No. 4D11-1492, 12/17/2014).
Fee award based on offer of judgment reversed because offer contained settlement condition beyond the offeree’s control. [Added 12/24/14] -- Paduru v. Klinkenberg, __ So.3d __ (Fla. 1st DCA, Nos. 1D5712m 1302562m 1304597, 12/17/2014).
Proposal for settlement made to minor plaintiff and her mother, who was acting as guardian, was not ambiguous and thus would support fee award under offer of judgment statute. [Added 11/22/14] -- DFC Tamarac, Inc. v. Jackson, __ So.3d __ (Fla. 4th DCA, No. 4D12-3065, 11/12/2014), 2014 WL 5834778.
Section 57.105 fee awards not available in workers’ compensation proceedings before Judge of Compensation Claims under Chapter 440. [Added 11/21/14] -- Lane v. Workforce Business Services, Inc., __ So.3d __ (Fla. 1st DCA, No. 1D14-0959, 11/12/2014), 2014 WL 5836805.
Order reserving jurisdiction to enforce settlement agreement containing attorney’s fees provision does not substitute for compliance with Fla.R.Civ.P. 1.525 (motion seeking fees must be served within 30 days of entry of judgment). [Added 11/20/14] -- Finnegan v. Compton, __ So.3d __ (Fla. 4th DCA, No. 4D13-4213, 11/19/2014).
Trial court erred in awarding fees against party under offer of judgment statute after party voluntarily dismissed one of two claims without prejudice. [Added 11/11/14] -- Scherer Construction & Engineering of Central Florida, LLC v. Scott Partnership Architecture, Inc., __ So.3d __ (Fla. 5th DCA, Nos. 5D13-1965, 5D13-3641, 11/7/2014).
Once appeals court remanded and directed trial court to fix amount of fees due under offer of judgment statute, it was too late for opposing party to claim proposal was not made in good faith. [Added 10/15/14] -- Arce v. Wackenhut Corp., __ So.3d __, 39 Fla.L.Weekly D1932 (Fla. 3d DCA, No. 3D12-2807, 9/10/2014), 2014 WL 4435949.
More than filing suit and obtaining payment of insurance claim is needed to support award of fees under "confession of judgment" doctrine. [Added 10/9/14] -- Omega Ins. Co. v. Johnson, __ So.3d __, 39 Fla.L.Weekly D1911 (Fla. 5th DCA, No. 5D13-1701, 9/5/2014), 2014 WL 4375189.
Proposal for settlement made earlier than 90 after a party was added as defendant will not support award of fees to that party under offer of judgment statute and rule. [Added 9/15/14] -- Design Home Remodeling Corp. v. Santana, __ So.3d __ (Fla. 3d DCA, No. 3D13-2852, 9/3/2014).
Court erred in awarding appellate fees as discovery sanction authorization from appellate court. [Added 9/9/14] -- Bartow HMA, LLC v. Kirkland, __ So.3d __ (Fla. 2d DCA, No. 2D13-3483, 9/3/2014).
Error to award fees to former wife who had ample means to obtain counsel. [Added 9/3/14] -- Eldridge v. Eldridge, __ So.3d __ (Fla. 5th DCA, Nos. 5D12-3730, 5D13-118, 8/29/2014).
Appellate fees awarded under section 57.105 for filing of appeal that appellant (a law firm) “knew or should have known” was frivolous. [Added 8/26/14] -- Law Offices of Lynn W. Martin, P.A. v. Madson, __ So.3d __ (Fla. 1st DCA, No. 1D13-3071, 8/22/2104).
Court abused its discretion in ordering divorcing wife to pay fees that would result in “inequitable diminution” of her equitable distribution award. [Added 8/23/14] -- Chadbourne v. Chadbourne, __ So.3d __ (Fla. 1st DCA, No. 1D13-0039, 8/18/2014).
Court erred in ordering production of law firm’s file to its former client despite firm’s assertion of retaining lien. [Added 8/19/14] -- Heims v. G.M.S. Marine Service Corp., __ So.3d __ (Fla. 4th DCA, No. 4D14-673, 8/13/2014).
Court did not err in denying section 57.105 sanctions sought by defendant in malicious prosecution case who was granted summary judgment on qualified immunity grounds. [Added 8/17/14] -- Phillips v. Garcia, __ So.3d __ (Fla. 3d DCA, No. 3D13-262, 8/13/2014).
Court may not award F.S. 57.105 sanctions against party that voluntarily dismissed suit before running of 21-day safe harbor period. [Added 8/17/14] -- Pomeranz & Landsman Corp. v. Miami Marlins Baseball Club, L.P., __ So.3d __ (Fla. 4th DCA, No. 4D14-1237, 8/13/2014).
Court erred in denying a motion for attorney’s fees on “failure to plead” grounds. [Added 8/6/14] -- Tunison v. Bank of America, N.A., __ So.3d __ (Fla. 2d DCA, No. 2D13-3351, 7/30/2014).
First DCA reverses trial court’s award of costs as sanction under section 57.105. [Added 7/23/14] -- Jackmore v. Estate of Jackmore, __ So.3d __ (Fla. 1st DCA, No. 1D11-6680, 7/14/2014), 2014 WL 3407082.
Offer that would settle "any" claims for punitive damages does not meet "particularity" requirement and so will not support fee award under offer of judgment statute and rule. [Added 7/17/14] -- R.J. Reynolds Tobacco v. Ward, __ So.3d __ (Fla. 1st DCA, No. 1D13-0869, 6/24/2104).
First DCA declines to reverse unauthorized award of fees under section 57.105, concluding that fundamental error doctrine does not apply. [Added 6/24/14] -- Yau v. IWDWarriors, Corp., __ So.3d __ (Fla. 1st DCA, No. 1D13-1698, 6/11/2014).
Fee award under offer of judgment statute reversed because offer was to settle claims for both damages and equitable relief. [Added 6/17/14] -- Patel v. Nandigam, __ So.3d __ (Fla. 2d DCA, No. 2D12-5790, 6/11/2014), 2014 WL 2596181.
Strict compliance with e-service of process rules is required in order to obtain sanctions in the form of a fee award under section 57.105. [Added 6/12/14] -- Matte v. Caplan, __ So.3d __ (Fla. 4th DCA, No. 4D13-1903, 6/11/2014).
Supreme Court addresses timely filing of attorney’s fees requests in original appellate proceeding under Fla.R.App.P. 9.100. [Added 6/3/14] -- Advanced Chiropractic and Rehabilitation Center, Corp. v. United Auto. Ins. Co., __ So.3d __ (Fla., No. SC13-153, 5/29/2014).
Father’s lawyer in paternity action is ordered to disgorge funds held in his trust account as unearned fees. [Added 5/28/14] -- Baratta v. Costa-Martinez, __ So.3d __ (Fla. 3d DCA, No. 3D14-206, 5/21/2014).
Trial court lacked jurisdiction to reopen case 6 years after final judgment to consider law firm’s charging lien. [Added 5/20/14] -- Brody v. Broward County Sheriff’s Office, __ So.3d __ (Fla. 4th DCA, No. 4D13-3733, 5/7/2014).
Section 57.105 fee sanctions against Husband who challenged orally stipulated martial settlement agreement on the basis of the children’s best interests are reversed. [Added 4/30/14] -- Puglisi v. Puglisi, __ So.3d __ (Fla. 5th DCA, No. 5D12-2572, 4/17/14).
Sitting en banc, Third DCA recedes from precedent and concludes that, per federal maritime law, fees may not be awarded under offer of judgment statute. [Added 4/29/14] -- Royal Caribbean Cruises, Ld. v. Cox, __ So.3d __ (Fla. 3d DCA, No. 3D09-2712, 4/9/2014).
Fourth DCA reaffirms its “nominal exposure” standard for determining whether an offer of judgment was made in good faith. [Added 4/29/14] -- Citizens Property Ins. Corp. v. Perez, __ So.3d __ (Fla. 4th DCA, No. 4D12-1412, 4/9/2014).
Error to deny charging lien on ground that successor counsel had to work long and hard before case settled years later. [Added 3/19/14] -- Courtney v. Hall-Edwards, 134 So.3d 543 (Fla. 3d DCA, No. 3D13-2662, 3/12/2014).
Fifth DCA imposes 57.105 sanctions on party and her lawyer, noting that her arguments on appeal were as frivolous as her claim in the underlying case. [Added 3/19/14] -- Badgley v. SunTrust Mortgage, Inc., 134 So.3d 559 (Fla. 5th DCA 3/14/2014).
Proposal for settlement for $100 payable within 10 days of entry of dismissal with prejudice is not ambiguous and will support fee award. [Added 3/10/14] -- Ekonomides v. Sharaka, 133 So.3d 1174 (Fla. 2d DCA 3/5/2014).
Payment of disputed insurance claim, “without more,” after insured files suit is sufficient to support fee award under section 627.428. [Added 3/2/14] -- Do v. GEICO General Ins. Co., __ So.3d __ (Fla. 3d DCA, No. 3D12-1655, 2/26/2014).
Fifth DCA observes that spouse’s offensive conduct during litigation, not during the marriage, may support section 57.105 sanctions. [Added 2/20/14] -- Shadwick v. Shadwick, __ So.3d __ (Fla. 2d DCA, No. 2D12-6235, 2/14/2014).
Order granting an attorney’s charging lien is reversed as premature. [Added 2/18/14] -- Higdon v. Higdon, __ So.3d __ (Fla. 5th DCA, No. 5D13-1924, 2/14/2014), 2014 WL 560833.
30-day requirement for fee and cost motions under Fla.R.Civ.P. 1.525 does not apply in adversary probate proceedings. [Added 2/14/14] -- Stone v. Stone, __ So.3d __ (Fla. 4th DCA, No. 4D12-2642, 2/12/2014), 2014 WL 537547.
Although party failed to meet 21-day safe harbor provision for F.S. 57.105 sanctions, appellate court nevertheless imposed sanctions on its own motion. [Added 2/14/14] -- Albelo v. Southern Oak Ins. Co., __ So.3d __ (Fla. 3d DCA, No. 3D11-3012, 2/5/2014) (on rehearing).
Court erred by considering court’s overall budgetary situation in determining reasonable fee in individual court-appointed criminal defense case. [Added 1/27/14] -- O’Donnell v. Justice Administrative Comm’n, __ So.3d __ (Fla. 4th DCA, No. 4D13-2926, 1/8/2014) (on reconsideration), 2014 WL 51469.
Fees for travel time and time spent litigating entitlement to fees may be awarded under offer of judgment statute. [Added 1/16/14] -- Palm Beach Polo Holdings, Inc. v. Stewart Title Guaranty Co., __ So.3d __ (Fla. 4th DCA, No. 4D12-2640, 1/8/2014), 2014 WL 51697.
Court erred in dissolution case by awarding fees that included counsel’s travel time. [Added 1/10/14] -- Hahamovitch v. Hahamovitch, __ So.3d __ (Fla. 4th DCA, No. 4D10-1077, 1/8/2014), 2014 WL 52761.
Alleged incapacitated person may not be required to pay fees and costs where guardianship is not established. [Added 1/10/14] -- In re Guardianship of Klatthaar,129 So.3d 482 (Fla. 2d DCA 2014).
See also In re Guardianship of Steiner, __ So.3d __ (Fla. 2d DCA, No. 2D13-5083, 3/4/2015).
Third DCA affirms fee award of $62,000 in FDUTPA arbitration where plaintiff was awarded less than $6000. [Added 1/3/14] -- Bull Motors, LLC v. Borders, __ So.3d __ (Fla. 3d DCA, No. 3D12-2223, 12/26/2013), 2013 WL 6818377.
Court abused discretion in ordering husband to make temporary support and fee payments consuming more than 80% of his net monthly income. [Added 12/11/13] -- Hoffman v. Hoffman, 127 So.3d 863 (Fla. 2d DCA 12/4/2013).
Fee award to receiver’s lawyer is reversed because lawyer lacked standing to pursue receiver’s claim for fees and costs. [Added 12/2/13] -- Saga Bay Gardens Condominium Ass’n, Inc. v. For the Appointment of Blanket Receiver, 127 So.3d 800 (Fla. 3d DCA 11/27/2013).
Supreme Court amends offer of judgment rule to clarify that partial proposals for settlement are not authorized. [Added 11/27/13] -- In re: Amendments to the Florida Rules of Civil Procedure, __ So.3d __, 38 Fla.L.Weekly S836 (Fla., No. SC13-74, 11/14/2013), 2013 WL 6164572.
Contingent fee caps in Rule of Professional Conduct 4-1.5 do not limit what court can award under fee-shifting statute in inverse condemnation case. [Added 11/25/13] -- Fla. Dept. of Agriculture and Consumer Services v. Bogorff, __ So.3d __, 38 Fla.L.Weekly D2413 (Fla. 4th DCA, No. 4D12-1550, 11/20/2013), 2013 WL 6082242.
Offer of judgment made less than 90 days after action commenced is invalid, regardless of whether made by plaintiff or defendant. [Added 11/25/13] -- Regions Bank v. Rhodes, 126 So.3d 1259 (Fla. 4th DCA 11/20/2013).
Third DCA supports lawyers’ claim of retaining lien on client papers, rejecting argument that claim should fail because there were other avenues for payment. [Added 11/14/13] -- Fox v. Widjaya, __ So.3d __, 38 Fla.L.Weekly D2287 (Fla. 3d DCA, No. 3D13-2548, 11/6/2013), 2013 WL 5927583.
Court erred in awarding less than amount of fees requested by lawyer who was court-appointed counsel to criminal defendant. [Added 11/4/13] -- Watts v. Justice Administrative Commission, __ So.3d __, 38 Fla.L.Weekly D2650 (Fla. 2d DCA, No. 2D13-2138, 12/18/2013) (on rehearing), 2013 WL 6643805.
First DCA declines to find workers’ compensation fee statute unconstitutional, despite award of $164 for 107 hours of work. [Added 10/29/13] -- Castellanos v. Next Door Co., 124 So.3d 392 (Fla. 1st DCA 10/23/2013).
First DCA reverses denial of petition to approve contingent fee above limits set in Rule 4-1.5. [Added 10/16/13] -- In re: Buggs, 122 So.3d 519 (Fla. 1st DCA 10/9/2013).
Pending post-judgment motion to set aside default judgment does not toll rule 1.525 30-day time limit for serving motion for fees. [Added 10/14/13] -- ASAP Services, LLC v. S A Florida International, LLC, 122 So.3d 965 (Fla. 3d DCA 10/9/2013).
Court properly denied motion filed by former husband’s lawyer seeking to enforce fee award directly against former wife. [Added 10/2/13] -- Coppola v. Coppola, 122 So.3d 474 (Fla. 2d DCA 9/25/2013).
Warning letter does not satisfy requirement of section 57.105 that proposed fee motion be served to start mandatory 21-day safe harbor period. [Added 9/29/13] -- Global Xtreme, Inc. v. Advanced Aircraft Center, Inc., 122 So.3d 487 (Fla. 3d DCA 9/25/2013).
Despite lack of express language, reservation of jurisdiction to determine amount of fees to be awarded reserved jurisdiction to address lawyer’s charging lien. [Added 9/23/13] -- Card v. Card, 122 So.3d 436 (Fla. 2d DCA 9/20/2013).
Court abused discretion in awarding 57.105 fees where there had been issues of material fact regarding applicability of privilege. [Added 8/31/13] -- Wapnick v. Veterans Council of Indian River County, Inc., 123 So.3d 622 (Fla. 4th DCA 8/28/2013).
Court erred in awarding 57.105 appellate fees on its own initiative without complying with 10-day notice provision in Fla.R.App.P. 9.410(a). [Added 8/31/13] -- United Automobile Ins. Co. v. Doctor Rehab Center, Inc., 121 So.3d 66 (Fla. 3d DCA 8/28/2013).
Trial court lacked authority to impose monetary sanctions on party for filing Bar complaints against opponent’s lawyers. [Added 8/26/13] -- Kass Shuler, P.A. v. Barchard, 120 So.3d 165 (Fla. 2d DCA 8/23/2013).
Fee award under offer of judgment statute is reversed because underlying judgment was capped due to sovereign immunity. [Added 8/21/13] -- UCF Athletics Ass’n Inc. v. Plancher, 121 So.3d 616 (Fla. 5th DCA 8/16/2013).
Stockman v. Downs rule of pleading entitlement to fees did not bar fee claim that did not exist at outset of action. [Added 8/19/13] -- Ocean Bank v. Caribbean Towers Condominium Ass’n, Inc., 121 So.3d 1087 (Fla. 3d DCA 8/14/2013).
Court erred in denying fees under offer of judgment statute to insurer who made nominal offer to insured. [Added 8/8/13] -- State Farm Florida Ins. Co. v. Laughlin-Alfonso, 118 So.3d 314 (Fla. 3d DCA 7/31/2013).
Plaintiffs’ voluntary dismissal of some claims did not automatically make defendant the prevailing party for purposes of fee award. [Added 8/7/13] -- Tubbs v. Mechanik Nuccio Hearne & Wester, P.A., 125 So.3d 1034 (Fla. 2d DCA 7/26/2013).
Insurer who is defendant is entitled to fees under offer of judgment statute regardless of policy’s provisions. [Added 7/29/13] -- United States Auto Ins. Co. v. Virga, 116 So.3d 1288 (Fla. 3d DCA 7/24/2013).
Lawyer did not improperly act as “surety” by filing nonresident case bond on behalf of client. [Added 7/3/13] -- US Bank, N.A. v. Boyer, 125 So.3d 997 (Fla. 2d DCA 6/28/2013).
In workers’ comp case, hours billed by claimant’s successor counsel could be relevant to fees awarded to former counsel under charging lien claim. [Added 7/3/13] -- Smith v. Schryver, 115 So.3d 450 (Fla. 1st DCA 7/1/2013).
Court departed from essential requirements of law by awarding fees to appointed counsel without findings regarding reasonable hours worked and reasonably hourly rate. [Added 6/21/13] -- Watts v. Justice Administrative Commission, 115 So.3d 431 (Fla. 2d DCA 6/12/2013).
Defendant in mortgage foreclosure suit entitled to prevailing party fees when suit dismissed for failure to prosecute. [Added 6/12/13] -- Vivot v. Bank of America, NA, 115 So.3d 428 (Fla. 2d DCA 6/7/2013).
First DCA rules that 2 workers’ compensation fee statutes are unconstitutional as applied in claimant’s defense against motion to tax costs. [Added 6/10/13] -- Jacobson v. Southeast Personnel Leasing, Inc./Packard Claim Administration, Inc., 113 So.3d 1042 (Fla. 1st DCA 6/5/2013).
Supreme Court approves use of “alternative fee recovery clauses” (“greater-of-contract-or-court-awarded” clauses) in hourly fee agreements as well as in contingent fee agreements. [Added 5/20/13] -- First Baptist Church of Cape Coral, Florida v. Compass Construction, Inc., 115 So.3d 978 (Fla. 2013).
Court erred in striking law firm’s charging lien after firm withdrew without cause from part-hourly, part-contingent fee matter. [Added 5/24/13] -- Greenspoon Marder, P.A. v. Moscoso, 114 So.3d 327 (Fla. 3d DCA 5/15/2013).
Court has discretion to deny fees to party who prevailed in trial de novo after arbitration hearing. [Added 5/24/13] -- Saltzman v. Hadlock, 112 So.3d 772 (Fla. 5th DCA 5/17/2013).
Reference to “subsidiaries” in general release attached to proposal for settlement did not render the proposal ambiguous. [Added 5/2/13] -- Alamo Financing, L.P. v. Mazoff, 112 So.3d 626 (Fla. 4th DCA 4/24/2013).
There is no “tenancy by the entireties” exception to apportionment requirement of offer of judgment rule. [Added 4/21/13] -- Cobb v. Durando, 111 So.3d 277 (Fla. 2d DCA 4/17/2013).
Court erred in ruling that both plaintiff and counterclaiming defendant were entitled to prevailing party fees. [Added 4/21/13] -- Leon F. Cohn, M.D., P.A. v. Visual Health and Surgical Center, Inc., 125 So.3d 860 (Fla. 4th DCA 4/10/2013).
Fourth DCA reverses fee award because offer of judgment was “apostrophe-challenged” and thus ambiguous. [Added 4/14/13] -- Bradshaw v. Boynton-JCP Associates, Ltd., 125 So.3d 289 (Fla. 4th DCA 4/10/2013).
JCC erred by not holding evidentiary hearing to allow claimant’s lawyer to build record for constitutional challenge to fee statutes. [Added 4/8/13] -- Russ v. Brooksville Health Care Center LLC/Premier Group Ins., 109 So.3d 1266 (Fla. 1st DCA 4/3/2013).
One insurance company may recover fees from another insurer under section 627.428. [Added 3/10/13] -- Indiana Lumbermens Mutual Ins. Co. v. Pennsylvania Lumbermens Mutual Ins. Co., 125 So.3d 263 (Fla. 4th DCA 3/6/2013).
Per Supreme Court, trial court may not award sanctions under section 57.105 against plaintiff who voluntarily dismissed the suit before sanctions motion was filed. Pino v. Bank of New York, 121 So.3d 23 (Fla. 2013).
Lawyer’s efforts did not produce “tangible fruits” to support imposition of a charging lien where property was “upside down”. [Added 2/6/13] -- Joel M. Weissman, P.A. v. Abou-Sayed, 107 So.3d 1163 (Fla. 4th DCA 2/6/2013) (on rehearing).
Property owner awarded fees on inverse condemnation claim is entitled to fees for all work, even that performed before suit was filed. [Added 12/4/12] -- Board of Supervisors of St. John’s Water Control District v. State of Fla. Dept. of Transportation, 103 So.3d 218 (Fla. 4th DCA 2012).
Applying axiom “what’s sauce for the goose is sauce for the gander,” Fourth DCA reverses fee award. [Added 11/28/12] -- Surgical Partners, LLC v. Choi, 100 So.3d 1267 (Fla. 4th DCA 2012).
Where party is entitled to fees under offer of judgment statute, court errs concluding that zero is a reasonable fee. [Added 11/2/12] -- Braaksma v. Pratt, 103 So.3d 913 (Fla. 2d DCA 2012).
Workers comp claimant's lawyer fired by claimant is entitled to fees on full amount of benefits obtained, not just those paid prior to lawyer's discharge. [Added 10/28/12] -- Oliver v. Dunn, 100 So.3d 1187 (Fla. 1st DCA 2012).
Proposal for settlement under section 768.79 invalid as “joint proposal” that did not apportion proposed amount. [Added 10/16/12] -- Arnold v. Audiffred, 98 So.3d 746 (Fla. 1st DCA 2012).
Court erred in allowing discovery of opposing counsel’s billing records to support claim for fee award. [Added 8/15/12] -- Estilien v. Dyda, 93 So.3d 1186 (Fla. 4th DCA 2012).
First DCA points out that there is no “de minimus” involvement exception concerning entitlement to prevailing party fees. [Added 6/12/12] -- First Real Estate, LLC v. Grant, 88 So.3d 1073 (Fla. 1st DCA 2012).
Law firm’s charging lien did not attach to aircraft obtained for firm’s client in replevin action because lien was not filed with FAA. [Added 6/6/12] -- US Acquisition, LLC v. Tabas, Freedman, Soloff, Miller & Brown, P.A., 87 So.3d 1229 (Fla. 4th DCA 2012).
In reversing application of multiplier in FCCPA case, Second DCA searches for solution to problems generated by fee statutes in cases where client’s damages are small. [Added 5/3/12] -- Dish Network Service L.L.C. v. Myers, 87 So.3d 72 (Fla. 2d DCA 2012).
Concern about state’s economic condition is not basis for judge’s refusal to approve reasonable fee for court-appointed criminal defense lawyer. [Added 3/21/12] -- Still v. Justice Administrative Comm’n, 82 So.3d 1168 (Fla. 4th DCA 2012).
Court erred in not awarding fees pursuant to offer of judgment made by two co-plaintiffs to single defendant. [Added 3/4/12] -- Wolfe v. Culpepper Constructors, Inc., __ So.3d ___, 37 Fla.L.Weekly D505 (Fla. 2d DCA, Nos. 2D10-3228, 2D10-3670, 2/29/2012), 2012 WL 638732.
Citing "textbook example of legal chutzpah," Third DCA affirms denial of disbarred lawyer's charging lien for costs. [Added 2/15/12] -- Wingate v. Celebrity Cruises, LTD, 79 So.3d 180 (Fla. 3d DCA 2012).
Offer of judgment statute does not apply to cases governed by substantive law of another state, per Florida Supreme Court. [Added 2/8/12] -- Southeast Floating Docks, Inc. v. Auto-Owners Ins. Co., 82 So.3d 73 (Fla. 2012).
Attorney's fee award to insured is not a "covered claim" that FIGA is responsible for, per Florida Supreme Court. [Added 1/23/12] -- Petty v. Florida Ins. Guaranty Ass'n, 80 So.3d 313 (Fla. 2012).
Fee award to law firm hired by personal representative is reversed because firm did not show that services were necessary or beneficial to estate. [Added 11/17/11] -- Davis v. Estate of Davis, 77 So.3d 703 (Fla. 3d DCA 2011).
Contingent fee agreement requiring immediate payment at hourly rate if client discharges lawyer is unenforceable as matter of law. [Added 10/12/11] -- Guy Bennett Rubin, P.A. v. Guettler, 73 So.3d 809 (Fla. 4th DCA 2011).
Error to calculate fee award in eminent domain proceeding based on unexecuted contract that did not constitute "first written offer." [Added 9/20/11] -- Pompano Beach Community Redevelopment Agency v. Holland, __ So.3d ___, 36 Fla.L.Weekly D2027 (Fla. 4th DCA, No. 4D10-291, 9/14/2011), 2011 WL 4056251.
Settlement proposal was not ambiguous under offer of judgment statute and rule even though proposed release was not attached. [Added 9/12/11] -- Jones v. Publix Supermarkets, Inc., 68 So.3d 422 (Fla. 4th DCA 2011).
Award under F.S. 57.105 may include not only attorney's fees but also "delay damages" resulting from improper delay. [Added 6/11/11] -- Korte v. US Bank National Ass'n, 64 So.3d 134 (Fla. 4th DCA 2011).
In case of first impression, First DCA rules that valid proposal for settlement under F.S. 768.79 does not cut off prevailing party's fee claim after date of proposal. [Added 5/25/11] -- Tierra Holdings, Ltd. v. Mercantile Bank, 78 So.3d 558 (Fla. 1st DCA 2011).
Court erred by awarding fee that exceeded amount provided for in lawyer-client contract. [Added 5/23/11] -- Western and Southern Life Ins. Co. v. Beebe, 61 So.3d 1215 (Fla. 3d DCA, No. 3D10-672, 5/18/2011).
Order imposing charging lien in contingent fee case is reversed, where lawyer was suspended before occurrence of contingency. [Added 5/17/11] -- Santini v. Cleveland Clinic Florida, 65 So.3d 22 (Fla. 4th DCA 2011).
Court erred in denying law firm fees in quantum meruit because firm did not keep time records. [Added 5/15/11] -- Morgan & Morgan, P.A. v. Guardianship of Larry McKean, 60 So.3d 575 (Fla. 2d DCA 2011).
Fourth DCA reverses award of attorney's fees in insurance case involving FIGA. [Added 5/9/11] -- Florida Ins. Guaranty Ass'n v. Ehrlich, __ So.3d ___, 36 Fla.L.Weekly D939 (Fla. 4th DCA, No. 4D09-3886, 5/4/2011), 2011 WL 1661386.
Court erred in partially denying fees to former wife who did not present evidence showing need for second lawyer. [Added 4/25/11] -- Grover v. Grover, 59 So.3d 333 (Fla. 5th DCA 2011).
Supreme Court rules that law firm hired by survivors in wrongful death case may be entitled to share in contingent fee received by personal representative's law firm. [Added 4/11/11] -- Wagner, Vaughn, McLaughlin & Brennan, P.A. v. Kennedy Law Group, 64 So.3d 1187 (Fla. 2011).
Lawyer who withdrew from matter and filed charging lien 3 years later is awarded fees on quantum meruit basis despite lack of enforceable attorney-client contract. [Added 4/8/11] -- Clark v. Estate of Elrod, 61 So.3d 416 (Fla. 2d DCA 2011).
Court erred in denying motion to compel arbitration in legal malpractice case. [Added 3/30/11] -- Mintz & Fraade, P.C. v. Beta Drywall Acquisition, LLC, 59 So.3d 1173 (Fla. 4th DCA 2011).
First DCA upholds constitutionality of revised workers compensation attorney's fee statute. [Added 3/24/11] -- Kauffman v. Community Inclusions, Inc./Guarantee Ins. Co., 57 So.3d 919 (Fla. 1st DCA 2011).
Court erred in imposing charging lien and retaining lien sought by law firm against its former client. [Added 2/26/11] -- LaVere-Alvaro v. Syprett, Meshad, Resnick, Lieb, Dumbaugh, Jones, Krotec & Westheimer, P.A., 54 So.3d 1056 (Fla. 2d DCA 2011).
Per Third DCA in fee award case, all child support cases administered by Department of Revenue are Title IV-D cases. [Added 2/26/11] -- Spano v. Bruce, 62 So.3d 2 (Fla. 3d DCA 2011) (on rehearing).
Court erred in applying wholly objective standard in determining whether offer of judgment was made in good faith. [Added 2/21/11] -- Arrowood Indemnity Co. v. Acosta, Inc., 58 So.3d 286 (Fla. 1st DCA 2011).
Supreme Court resolves conflict among DCAs regarding application of safe harbor provision in Fla. Stat. 57.105. [Added 2/11/11] -- Bionetics Corp. v. Kenniasty, 69 So.3d 943 (Fla. 2011).
After PIP benefits are exhausted, suit for fees related to reduced or denied benefits may no longer be maintained. [Added 1/3/11] -- Sheldon v. United States Auto. Ass'n, 55 So.3d 593 (Fla. 1st DCA 2010).
"Nominal" offer may still be made in good faith and support fee award under offer of judgment statute. [Added 1/3/11] -- Gawtrey v. Hayward, 50 So.3d 739 (Fla. 2d DCA 2010).
Trial court erred in denying fees under offer of judgment statute on ground that proposal was not made in good faith. [Added 10/26/10] -- Sharaby v. KLV Gems Co., Inc., 45 So.3d 560 (Fla. 4th DCA 2010).
Fee award under Fla.Stat. sec 627.428 is not "covered claim" under FIGA Act, per Second DCA. [Added 10/7/10] -- Florida Ins. Guaranty Ass'n v. Petty, 44So.3d 1191 (Fla. 2d DCA 2010).
Fourth DCA narrowly construes attorney's fee clause in contract and does not apply F.S. 57.107(7) reciprocity. [Added 9/14/10] -- Florida Hurricane Protection and Awning, Inc. v. Pastina, 43 So.3d 893 (Fla. 4th DCA 2010) (en banc).
Supreme Court amends offer of judgment rule as it applies in vicarious liability situations. [Added 9/10/10] -- In re: Amendments to the Florida Rules of Civil Procedure, 52 So.3d 579 (Fla. 2010).
All child support cases eligible for Title IV-D services are Title IV-D cases for attorney's fee purposes, even if Dept. of Revenue is not a party. [Added 8/12/10] -- Spano v. Bruce, __ So.3d ___, 35 Fla.L.Weekly D1811(Fla. 3d DCA, No. 3D07-3327, 8/11/2010), 2010 WL 3154873.
Fourth DCA questions but upholds requirement of independent expert witness testimony in charging lien case. [Added 7/21/10] -- Robin Roshkind, P.A. v. Machiela, 45 So.3d 480 (Fla. 4th DCA 2010).
Attorney's charging lien filed after dismissal of underlying case was untimely and thus unenforceable. [Added 7/19/10] -- Naftzger v. Elam, 41 So.3d 944 (Fla. 2d DCA 2010).
LAW FIRM THAT OUTSOURCED TRIAL PREPARATION WORK THAT CLIENT PAID FOR HAD "palpable" lawyer-client conflict AND COULD BE SUBJECT TO CLIENT'S EXCESSIVE FEE CLAIM under Rule 4-1.5. [Added 5/25/10] -- Liebreich v. Trial Strategies, Inc., 40 So.3d 1 (Fla. 2d DCA 2010).
Charging lien cannot be enforced on recovery for insurance proceeds on hurricane-damaged homestead property. [Added 4/9/10] -- Quiroga v. Citizens Property Ins. Corp., 34 So.3d 101 (Fla. 3d DCA 2010).
Supreme Court clarifies that joint offer of settlement or judgment conditioned on acceptance of all offerees is invalid and unenforceable. [Added 4/2/10] -- Attorneys' Title Ins. Fund, Inc. v. Gorka, 36 So.3d 646 (Fla. 2010).
Law firm could not assert retaining lien over its files in contingent fee cases because contingency had not yet occurred. [Added 4/1/10] -- Brickell Place Condo Ass'n, Inc. v. Joseph H. Ganguzza & Associates, P.A., 31 So.3d 287 (Fla. 3d DCA 2010).
Fifth DCA concurring opinion points out potential conflict when lawyer represents client in arguing for reversal of 57.105 sanctions order against both. [Added 3/29/10] -- Geiger v. Spurlock, 30 So.3d 704 (Fla. 5th DCA 2010).
Trial court erred in imposing charging lien before rendition of final judgment in underlying case. [Added 3/14/10] -- Walia v. Hodgson Russ LLP, 28 So.3d 987 (Fla. 4th DCA 2010).
Lawyer not licensed in Florida may not collect fee in quantum meruit for legal services provided in Florida in probate and trust matter. [Added 2/23/10] -- Morrison v. West, 30 So.3d 561 (Fla. 4th DCA 2010).
Persons who are not named as parties in litigation nevertheless may be "parties" for purpose of having attorney's fees awarded against them. [Added 12/8/09] -- Dunkin' Donuts Franchised Restaurants, LLC v. 330545 Donuts, Inc., 27 So.3d 711 (Fla. 4th DCA 2010)
Lawyer's right to charging lien was not eliminated by the 2003 statutory changes to workers' compensation law, per First DCA. [9/21/09] -- Rosenthal, Levy & Simon, P.A. v. Scott, 17 So.3d 872 (Fla. 1st DCA 2009).
Trial court erred in granting summary judgment for law firm sued on fee-sharing agreement by disciplined attorney. [Added 8/11/09] -- Chastain v. Cunningham Law Group, P.A., 16 So.3d 203 (Fla. 2d DCA 2009).
Trial court correctly declined to add to fee award time that parties allegedly spent working on their own case as "paralegals." [Added 7/29/09] -- Lewis v. Nical of Palm Beach, Inc., 24 So.3d 564 (Fla. 4th DCA 2009).
Trial court erred in imposing lien on homestead property for attorney's fees incurred in estate matter. [Added 6/9/09] -- Herrilka v. Yates, 13 So.3d 122 (Fla. 4th DCA 2009).
JCC did not err in concluding that paralegal time is included in attorney's fees under workers' comp fee statute. [Added 5/15/09] -- Demedrano v. Labor Finders of the Treasure Coast, 8 So.3d 498 (Fla. 1st DCA 2009) (on motion for clarification). NOTE: In a footnote the court distinguished the situation in this case, where the claimant was paying a fee to his lawyer pursuant to a lump sum settlement, from that in Murray v. Mariner Health, 994 So.2d 1051 (Fla. 2008), where the claimant was entitled to recover fees from an employer/carrier.
Law firm's charging lien enforceable against opposing party who had notice of lien but paid settlement without protecting firm's claim. [Added 4/28/09] -- Hall, Lamb & Hall, P.A. v. Sherlon Investments Corp., 7 So.3d 639 (Fla. 3d DCA 2009) (on rehearing).
Offer of judgment rules for multiple parties must be strictly complied with even if parties' claims are "indistinguishable." [Added 3/26/09] -- Cano v. Hyundai Motor America, Inc., 8 So.3d 408 (Fla. 4th DCA 2009).
Fifth DCA rules on 57.105 motion for fees filed after effective date of "safe harbor amendment," in case where suit was filed before effective date of amendment. [Added 1/30/09] -- Kenniasty v. Bionetics Corp., 10 So.3d 1183 (Fla. 5th DCA 2009) (revised opinion).
Court's inherent authority to award attorney's fees under "inequitable conduct doctrine" remains intact despite amendment of Fla.Stat. sec. 57.105. [Added 1/28/09] -- Rosenberg v. Gaballa, 1 So.2d 1149 (Fla. 4th DCA 2009).
Public official who defended ethics complaint may recover attorney's fees incurred in proving entitlement to and amount of fees. [Added 1/5/09] -- Milanick v. Osborne, 6 So.3d 729 (Fla. 5th DCA 2009).
Third DCA affirms denial of attorney's fees incurred spent litigating amount of fees to be awarded in insurance litigation. [Added 12/2/08] -- Oquendo v. Citizens Property Ins. Corp., 998 So.2d 636 (Fla. 3d DCA 2008).
Trial court's retention of jurisdiction over issue of attorney's fees also includes jurisdiction to adjudicate law firm's charging lien. [Added 11/24/08] -- Baker & Hostetler, LLP v. Swearingen, 998 So.2d 1158 (Fla. 5th DCA 2008). NOTE: Although the appeals court questioned the standing of Husband to object to Law Firm's charging lien, it declined to consider the standing issue because it was not raised by the parties.
Lawyer's services need not have increased value to estate in order to be awarded fees in probate matter. [Added 10/13/08] -- Duncombe v. Adderly, 991 So.2d 1013 (Fla. 4th DCA 2008).
Settlement proposal to multiple plaintiffs invalid under offer of judgment statute unless each plaintiff could independently accept proposal. [Added 9/9/08] -- Attorneys' Title Insurance Fund, Inc. v. Gorka, 989 So.2d 1210 (Fla. 2d DCA 2008).
Waiver of temporary attorney's fees in prenuptial agreement not enforceable in Florida, even if agreement governed by another state's law. [Added 9/4/08] -- McNamara v. McNamara, 988 So.2d 1255 (Fla. 5th DCA 2008).
F.S. 57.105 attorney's fees assessed against lawyer and clients for filing disqualification motion as "litigation tactic." [Added 8/13/08] -- Yang Enterprises, Inc. v. Georgalis, 988 So.2d 1180 (Fla. 1st DCA 2008).
Trial court erred in ordering that attorney's charging lien may be executed against former client's homestead property. [Added 8/4/08] -- Sass v. Sass, 988 So.2d 1135 (Fla. 4th DCA 2008).
Trial court exceeded its authority by granting charging lien and ordering client's assets frozen to pay attorneys' fees. [Added 8/4/08] -- Pineiro v. Pineiro, 988 So.2d 686 (Fla. 4th DCA 2008).
Law firm representing survivor in wrongful death action not entitled to share in contingent fee earned by personal representative's law firm. [Added 7/12/08] -- Wagner, Vaughn, McLaughlin & Brennan, P.A., v. Kennedy Law Group, 987 So.2d 741 (Fla. 2d DCA 2008).
Attorney's charging lien does not attach to money appropriated by Legislature on claims bill. [Added 7/2/08] -- Noel v. Sheldon J. Schlesinger, P.A., 984 So.2d 1265 (Fla. 4th DCA 2008). NOTE: Compare this case to Richman Greer Weil Brumbaugh Mirabito & Christensen, P.A. v. Chernak, 991 So.2d 875 (Fla. 4th DCA 2008) (attorney's charging lien filed in suit that was later dismissed can attach to proceeds recovered by former client in related arbitration proceeding).
Claim for contingent fee is denied because contract was signed by person without authority and minor [Added 6/4/08] -- Charles v. Klemick and Gampel, P.A., 984 So.2d 563 (Fla. 2d DCA 2008).
Lawyer-paralegal bonus agreement that violates ethical fee-splitting rule is not void as against public policy and is enforceable by paralegal. [5/9/08] -- Patterson v. A Law Office of Lauri J. Goldstein, P.A., 980 So.2d 1234 (Fla. 4th DCA 2008).
Lawyer is unsuccessful in attempt to set aside client's settlement and continue suit in client's name to pursue lawyer's fee award [Added 3/26/08] -- Manzini & Associates, P.A. v. Broward Sheriff's Office, 976 So.2d 688 (Fla. 4th DCA 2008).
Attorney's charging lien filed in suit that was later dismissed can attach to proceeds recovered by former client in related arbitration proceeding [Added 3/14/08] -- Richman Greer Weil Brumbaugh Mirabito & Christensen, P.A. v. Chernak, 991 So.2d 875 (Fla. 4th DCA 2008).
Fifth DCA refuses to enforce attorney's fee provision in lease agreement because it "clearly makes no sense" [Added 3/11/08] -- Islander Beach Club Condominium v. Skylark Sports, L.L.C., 975 So.2d 1208 (Fla. 5th DCA 2008).
On its own motion First DCA imposes f.s. 57.105 fees against lawyer who appealed his disqualification by administrative Law Judge for "unruly" behavior [Added 2/27/08] -- Gopman v. Dept. of Education, 974 So.2d 1208 (Fla. 1st DCA 2008).
Party that settled pursuant to offer of judgment can be "prevailing party" for purposes of attorney's fee award under Magnuson-Moss warranty Act [Added 2/12/08] -- Dufresne v. DaimlerChrysler Corp., 975 So.2d 555 (Fla. 2d DCA 2008). NOTE: The Fourth DCA reached a decision contrary to Dufresne and certified conflict. Mady v. DaimlerChrysler Corp., 976 So.2d 1212 (Fla. 4th DCA 2008).
Supreme Court resolves conflict among Districts regarding construction of pre-2006 version of Fla.R.Civ.P. 1.525 (attorney's fee motions) [Added 2/8/08] -- Barco v. School Board of Pinellas County, 975 So.2d 1116 (Fla. 2008).
Error to apply contingency risk multiplier to fee award absent evidence that client had difficulty securing competent counsel [Added 1/6/08] -- Eckhardt v. 424 Hintze Management, LLC, 969 So.2d 1219 (Fla. 1st DCA 2007).
Even "nominal" settlement offer may be made in good faith and support award of fees under offer of judgment statute. [Added 1/6/08] -- Downs v. Coastal Systems International, Inc., 972 So.2d 258 (Fla. 3d DCA 2008).
Supreme Court rules that clause in lawyer-client fee contract cannot waive homestead protection that applied to client's property. [Added 12/27/2007] -- Chames v. DeMayo, 972 So.2d 850 (Fla. 2007).
Judgment awarding fees to lawyer is reversed on ground that there was no evidence lawyer had actual or apparent authority to represent purported corporate client. [Added 12/9/07] -- Florida State Oriental Medical Ass'n, Inc. v. Slepin, 971 So.2d 141 (Fla. 1st DCA 2007).
$100,000 statutory cap on damages against state agencies in tort actions includes amounts awarded for attorney's fees. [Added 11/9/07] -- Zamora v. Florida Atlantic University Board of Trustees, 969 So.2d 1108 (Fla. 4th DCA 2007).
Lawyer who withdrew from contingent fee case for health reasons may not have forfeited right to fee. [Added 11/1/07] -- Collier v. Bohnet, 966 So.2d 1033 (Fla. 4th DCA 2007).
Error for trial court to award legal fees and expert witness fees incurred by lawyer in perfecting and enforcing charging lien. [Added 7/24/07] -- Rudd v. Rudd, 960 So.2d 885 (Fla. 4th DCA 2007).
Award of attorney's fees under offer of judgment statute reversed because proposed release was an ambiguous non-monetary term of offer. [Added 7/24/07] -- Sparklin v. Southern Industrial Associates, Inc., 960 So.2d 895 (Fla. 5th DCA 2007).
Supreme Court draws another "bright line" regarding offer of judgment rule, strictly requiring that offer cite applicable statute. [Added 6/16/07] -- Campbell v. Goldman, 959 So.2d 223 (Fla. 2007).
Trial court erred in awarding attorney's fees under F.S. 57.105 in collateral criminal proceeding. [Added 5/11/07] -- Ortiz v. McDonough, 957 So.2d 1256 (Fla. 1st DCA 2007).
Lawyer and client assessed appellate attorney's fees under F.S. 57.105 for pursuing frivolous appeal seeking specific performance of alleged real estate contract. [Added 4/11/07] -- de Vaux v. Westwood Baptist Church, 953 So.2d 677 (Fla. 1st DCA 2007).
Division of contingent fee between co-counsel in different firms governed by fee agreement, not quantum meruit, even though one co-counsel was discharged before contingency occurred. [Added 4/6/07] -- Jay v. Trazenfeld, 952 So.2d 635 (Fla. 4th DCA 2007).
Arbitration award not "judgment" for purposes of Fla.R.Civ.P. 1.525 30-DAY time period for filing motion for attorney's fees. [Added 3/28/07] -- Landing Group of Tampa, Inc. v. Kifner, 951 So.2d 1014 (Fla. 5th DCA 2007).
Computerized legal research expenses are not taxable "costs" to prevailing party, per Fourth DCA [Added 3/24/07] -- Wood v. Panton & Co. Realty, Inc., 950 So.2d 534 (Fla. 4th DCA 2007).
In collection case, trial court directed to enter attorney's fee award without contingency risk multiplier; no evidence that multiplier necessary to attract competent counsel. [Added 3/12/07] -- Sumner Group, Inc. v. M.C. Distributec, Inc., 949 So.2d 1205 (Fla. 4th DCA 2007).
Fifth DCA exercises discretionary jurisdiction to conclude that trial court erred in applying multiplier to fee award in PIP suit. [Added 3/7/07] -- Progressive Express Ins. Co. v. Schultz, 948 So.2d 1027 (Fla. 5th DCA 2007). Trial court erred in awarding contingent fee to lawyer discharged by client before contingency occurred. [Added 1/9/07] -- Fields v. Klein, 946 So.2d 119 (Fla. 4th DCA 2007).
Lawyer's charging lien can attach to any positive recovery produced for client by lawyer's efforts, even if client faces net loss due to counterclaims. [Added 12/22/06] -- Rebecca J. Covey, P.A. v. American Import Car Sales, 944 So.2d 1202 (Fla. 4th DCA 2006).
Defendant may be awarded prevailing party attorney's fees after plaintiff voluntarily dismisses case, even through plaintiff later refiled case and prevailed. [Added 12/14/06] -- Alhambra Homeowners Ass'n, Inc. v. Asad, 943 So.2d 316 (Fla. 3d DCA 2006).
In wrongful death case trial, court erred in not awarding fees to all lawyers for survivors in proportion to their efforts. [Added 12/13/06] -- Garces v. Montano, 947 So.2d 499 (Fla. 3d DCA 2006).
Judge erred by enforcing law firm's charging lien in amount less than full contract amount owed to law firm by former client. [Added 11/18/06] -- Gossett & Gossett, P.A. v. Mervolion, 941 So.2d 1207 (Fla. 4th DCA 2006).
Not including specific conditions of release in offer of judgment results in denial of attorney's fee award. [Added 10/9/06] -- Papouras v. BellSouth Telecommunications, Inc., 940 So.2d 479 (Fla. 4th DCA 2006).
Court may award attorney's fees for time spent litigating amount of fee award, where fees awarded as sanction. [Added 10/6/06] -- Bates v. Islamorada, Village of Islands, 939 So.2d 171 (Fla. 3d DCA 2006). Florida
Supreme Court approves rule permitting waiver of clients' rights under constitutional amendment regarding attorneys' fees in medical malpractice cases. [Added 9/28/06]
The Florida Supreme Court revised the Florida Rules of Professional Conduct (specifically, Rule 4-1.5(f)(4)(B)) by adopting a rule permitting clients in medical malpractice cases to waive the rights granted to them under Article I, Section 26 of the Florida Constitution. Article I, Section 26 was added to the constitution in 2004 when voters approved an amendment entitled the "Medical Malpractice Claimant's Compensation Amendment," which provided that in medical malpractice cases being handled by a lawyer on a contingent fee basis the client "is entitled to no less than 70% of the first $250,000.00 in all damages received by the claimant, and 90% of damages in excess of $250,000.00, exclusive of reasonable and customary costs and regardless of the number of defendants."
The Court adopted (with modifications) the proposed rule offered by the Florida Bar, electing to reject a proposal presented by former Chief Justice Stephen Grimes and other bar members. The Court was of the view that the rights provided by Article I, Section 26 could be waived by an affected client. The Court, however, declined to require judicial review of the waiver in every waiver. The Court stated that "[t]he waiver form not only is extremely detailed but, importantly, sets forth the actual language of article I, section 26 and requires the client to specifically acknowledge that he or she (1) has been advised that signing the waiver releases an important constitutional right; (2) has been advised of the opportunity to consult with separate and independent counsel and to have the waiver explained or reviewed by a court; (3) agrees to an increase in the attorney fee that would otherwise be owed if the constitutional provision were not waived; (4) has three business days in which to cancel the waiver; (5) wishes to engage the named lawyer or law firm, but is unable to do so because of the constitutional limitation and therefore knowingly and voluntarily waives the constitutional limitation in consideration of the lawyer or law firm’s agreement to represent him or her; and (6) has selected the named lawyer or law firm as counsel of choice, could not otherwise engage their services without the waiver, and specifically states that the waiver is knowingly and voluntarily made" (footnote omitted). The Court described its modification of the form proposed by the Bar as follows: "[W]e modify the form to require the client to acknowledge not only that he or she is agreeing to an increased fee, but also to specifically acknowledge the maximum contingency fee percentages currently set forth in rule 4-1.5(f)(4)(B)(i), up to which the lawyer and client may agree, without prior court approval, if the waiver is executed. Under the rule as adopted, judicial approval is mandatory only where a client waives his or her rights under article I, section 26 and agrees to a contingent fee in excess of the maximum contingency fee percentages set forth in rule 4-1.5(f)(4)(B)(i). In such a case, court approval under the process set forth in [existing] rule 4-1.5(f)(4)(B)(ii) is necessary" (emphasis in original). Two justices dissented "from the rule's failure to provide for judicial review of the client's waiver." The amendments to Rule 4-1.5(f)(4)(B) as approved by the Court is effective immediately (September 28, 2006). In re: Amendment to the Rules Regulating The Florida Bar -- Rule 4-1.5(f)(4)(B) of the Rules of Professional Conduct, 939 So.2d 1032 (Fla. 2006).
Cause of action for breach of fee sharing agreement among lawyers does not accrue until fee in underlying case has been collected. [Added 9/27/06] -- Barbara G. Banks, P.A. v. Thomas D. Lardin, P.A., 938 So.2d 571 (Fla. 4th DCA 2006).
Fourth DCA affirms summary judgment against lawyer who failed to honor letter of protection. [Added 8/3/06] -- Koenig v. Charles S. Theofilos, M.D., P.A., 933 So.2d 1293 (Fla. 4th DCA 2006).
Lawyer who continues to represent multiple clients after conflict arises not entitled to fees for work performed after that time. [Added 7/8/06] -- James T. Butler, P.A. v. Walker, 932 So.2d 1218 (Fla. 5th DCA 2006).
Law firm may maintain retaining lien over files even absent court order or written contract. [Added 7/8/06] -- Shelowitz, Shelowitz, Terrell & Coffey, P.A. v. Peters, 931 So.2d 1059 (Fla. 4th DCA 2006).
First DCA rejects constitutional and other challenges to statutory attorneys' fee limits in workers' compensation cases. [Added 6/27/06] -- Lundy v. Four Seasons Ocean Grand Palm Beach, 932 So.2d 506 (Fla. 1st DCA 2006).
Supreme Court rules that "bright-line" 30-day period in Fla.R.Civ.P. 1.525 is not extended by reservation of jurisdiction in final judgment (thus resolving conflict among Districts). [Added 5/11/2006] -- Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598 (Fla. 2006).
Petition for writ of certiorari not "appeal" for purposes of additional contingent fee percentage; contingent fee may be charged in PIP case. [Added 2/28/06] -- Steinberg v. Charles T. Becker, P.A., 920 So.2d 1239 (Fla. 5th DCA 2006).
Retaining lien available to law firm holding client funds in trust account, even though requirements for charging lien not met. [Added 1/24/06] -- JLA Investment Corp. v. Colony Ins. Co., 922 So.2d 249 (Fla. 2d DCA 2006).
Lawyer owed fees could not enforce child support arrearage assignment from former client's estate. [Added 12/30/05] -- Robert S. Thurlow, P.A. v. Lafata, 915 So.2d 737 (Fla. 5th DCA 2005).
No 21-day safe harbor when court awards F.S. 57.105 fees on own initiative, as opposed to on party's motion. [12/30/05] -- Schmigel v. Cumbie Concrete Co., 915 So.2d 776 (Fla. 1st DCA 2005).
Offer of judgment by co-defendants must differentiate between them even when one's liability only vicarious. [Added 10/25/05] -- D.A.B. Constructors, Inc. v. Oliver, 914 So.2d 462 (Fla. 5th DCA 2005). NOTE: See also Graham v. The Peter K. Yeskel 1996 Irrevocable Trust, 928 So.2d 371 (Fla. 4th DCA 2006) (not error to deny attorney's fees where defendants' joint proposal for settlement did not apportion offer between them, even though defendants were tenants by entireties sued on claim directed at their joint ownership of real property).
Prenuptial agreement may contract away obligation to pay attorney's fees during marriage by providing for prevailing party fees in actions to enforce agreement. [Added 7/25/05] -- Lashkajani v. Lashkajani, 911 So.2d 1154 (Fla. 2005).
Error to require successor counsel and previously discharged counsel to share contingent fee. [Added 5/6/05] -- Lubell v. Martinez, 901 So.2d 951 (Fla. 3d DCA 2005). Contingent fee contract not invalid under Chandris where signed by individual before she was appointed personal representative (and later removed). [Added 11/23/04] -- Cooper v. Ford & Sinclair, P.A., 888 So.2d 683 (Fla. 4th DCA 2004).
FLORIDA VOTERS APPROVE CONSTITUTIONAL AMENDMENT LIMITING MEDICAL MALPRACTICE CONTINGENT FEES [Added 11/3/04]
No fee for lawyer who withdrew from contingent fee case due to "break-down" in attorney-client relationship. [Added 10/19/04] -- DePena v. Cruz, 884 So.2d 1062 (Fla. 2d DCA 2004).
Offer of judgment must state conditions "with particularity." [Added 9/9/04] -- Swartsel v. Publix Super Markets, Inc., 882 So.2d 449 (Fla. 4th DCA 2004). NOTE: See also Palm Beach Polo Holdings, Inc. v. Village of Wellington, 904 So.2d 652 (Fla. 4th DCA 2005) (offer legally deficient because party's acceptance could have extinguished other pending unrelated claims). NOTE: Compare the above with RDR Computer Consulting Corp. v. Eurodirect, Inc., 884 So.2d 1053 (Fla. 2d DCA 2004) (proposal from one defendant seeking dismissal of entire suit need not make separate allocation for second defendant whose name appears in case style but whom plaintiff does not claim to be suing).
Charging lien entitles withdrawn lawyer to notice of settlement in workers comp case. [Added 7/29/04] -- Zaldivar v. Okeelanta Corp., 877 So.2d 927 (Fla. 1st DCA 2004).
Fee provision in equipment lease agreement so broad as to be "illusory and unenforceable." [Added 6/30/04] -- Coin-O-Matic, Inc., v. Cornerstone Residential Management, Inc., 879 So.2d 649 (Fla. 3d DCA 2004).
Person who controlled actions of corporate party could be personally liable for fees sanctions. [Added 4/16/04] -- Zweibach v. Gordimer, 884 So.2d 244 (Fla. 2d DCA 2004) (opinion on rehearing).
Charging lien limited to proceeds recovered by lawyer on client's behalf. [Added 3/19/04] -- Mitchell v. Coleman, 868 So.2d 639 (Fla. 2d DCA 2004).
Plaintiff's lawyers may maintain interference with contract claim against opposing party who settled directly with lawyers' client. [Added 3/5/04] -- Ingalsbe v. Stewart Agency, Inc., 869 So.2d 30 (Fla. 4th DCA 2004).
Trial court erred in imposing charging lien on funds without determining that the funds were generated through the lawyer's services. [Added 1/8/04] -- Robert C. Malt & Co. v. Carpet World Distributors, Inc., 861 So.2d 1285 (Fla. 4th DCA 2004).
Withdrawing from contingent fee case due to marriage and relocation to another state is "voluntary" withdrawal resulting in abandonment of right to fee. [Added 12/10/03] -- Liberty Mutual Ins. Co. v. Holbrook, 861 So.2d 1216 (Fla. 2d DCA 2003). NOTE: Compare this case and Steven J. Kirschner, P.A. v. Biritz, 843 So.2d 349 (Fla. 5th DCA 2003) with Smith & Burnetti, P.A. v. Faulk, 677 So.2d 404 (Fla. 2d DCA 1996) (withdrawing lawyer entitled to fee, where serious disagreement with client rose to level of violation of Rule 4-1.7(b)).
Retaining lien on former client's file trumps discovery demand by former client in legal malpractice case. [Added 12/9/03] -- Foreman v. Behr, 866 So.2d 705 (Fla. 2d DCA 2003).
Failure of some participating lawyers to sign fee agreement leaves them with only quantum meruit. [Added 10/10/03] -- Lackey v. Bridgestone/Firestone, Inc., 855 So.2d 1186 (Fla. 3d DCA 2003).
Per Florida Supreme Court, error for trial court to use contingency risk multiplier in computing fee award under offer of judgment statute. [Added 10/2/03] -- Sarkis v. Allstate Ins. Co., 863 So.2d 210 (Fla. 2003).
Trial court properly capped attorney's fee award based on terms of lawyer-client contingent fee agreement, but erred by including amount of fee award in its calculations. [Added 9/12/03] -- Royal Belge v. New Miami Wholesale, Inc., 858 So.2d 336 (Fla. 3d DCA 2003). NOTE: Although not pointed out in the opinion, law firm may have been able to avoid the fee award reduction by originally structuring its fee as the greater of the percentage or the amount awarded by the court. See Kaufman v. MacDonald, 557 So.2d 572, 573 (Fla. 1990).
F.S. 57.105 can present "inherent conflict" between lawyer and client. [Added 7/28/03] -- Kerzner v. Lerman, 849 So.2d 1185 (Fla. 4th DCA 2003). See also Mullins v. Kennelly, 847 So.2d 1151 (Fla. 5th DCA 2003); Maradriaga v. 7-Eleven, __ So.3d ___ (Fla. 1st DCA, No. 1D09-6934, 5/14/2010).
Perfecting attorney's charging lien requires only timely notice. [Added 6/11/03] -- Gordon C. Brydger, P.A. v. Wolfe, 847 So.2d 2074 (Fla. 4th DCA 2003). See also Samuel L. Heller, P.A. v. Held, 817 So.2d 1023 (4th DCA 2002), rev. denied 839 So.2d 698 (Fla. 2003).
Supreme Court addresses attorney's fees in wrongful death cases. [Added 6/2/03] -- Wiggins v. Estate of Wright, 850 So.2d 444 (Fla. 2003).
Lawyer who withdraws from "problem client" loses fee in contingent case. [Added 5/28/03] -- Steven J. Kirschner, P.A. v. Biritz, 843 So.2d 349 (Fla. 5th DCA 2003). NOTE: Compare with Smith & Burnetti, P.A. v. Faulk, 677 So.2d 404 (Fla. 2d DCA 1996) (withdrawing lawyer entitled to fee, where serious disagreement with client rose to level of violation of Rule 4-1.7(b)).