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Florida - FEES (including Attorney's Liens)


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 [697] 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  At the hearing, the opposing party (whose counsel had withdrawn) was unrepresented.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 [188] 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]

          Parents of a child born with a birth-related neurological injury were part of a class action suit against the Florida Birth-Related Neurological Injury Compensation Association (NICA).  The settlement agreement established a process for class members to make claims for back pay and future pay for custodial care benefits.  Parents submitted a claim seeking pay for custodial benefits 16 hours per day, but NICA would agree to only 12 hours per day.  Parents petitioned the Department of Administrative Hearings (DOAH) to resolve the dispute and for attorney’s fees under F.S. 766.31.  The Administrative Law Judge sided with NICA and denied the claim for fees.  Parents appealed the denial of fees.

          The First DCA reversed, rejecting DOAH’s argument that Parents were not entitled to fees because they were not the prevailing party.  “Section 766.31 does not address prevailing parties, but rather links liability for expenses with a final claim determination and award. Cf., § 723.068, Fla. Stat. (‘[I]n any proceeding between private parties to enforce provisions of this chapter, the prevailing party is entitled to a reasonable attorney’s fee.’) (emphasis added [by court]). In this case, the petition filed with DOAH, and required by the parties’ settlement agreement, asked the ALJ ‘to conduct a formal [hearing] and enter a final order which determines and awards the correct amount of [benefits], if any.’ (Emphasis added [by court]). The ALJ then resolved the claim for custodial care benefits, in which Appellants asked for one result (a 16-hour per day benefit) and NICA sought another (no further custodial care benefits), by awarding benefits."   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]

          Plaintiffs sued Bank, which then served a motion asserting that Plaintiffs’ claims were frivolous and seeking fees under F.S. 57.105(4).  Plaintiffs did not withdraw their claims, but filed an amended complaint.  The trial court rendered judgment on the pleadings for Bank.  Bank filed its 57.105 motion and the court entered an order granting Bank’s entitlement to fees.  Plaintiffs appealed the underlying judgment.  While the appeal was pending, Bank filed a motion with the Third DCA seeking fees for an appeal from a frivolous trial court action, citing to Fla.R.Civ.P. 9.300 and 9.400(b) and F.S. 57.105 and 59.46.

          The appellate court denied the fee motion.  Bank cited the wrong rule of procedure:  “According to the plain language of rule 9.410(b), parties seeking appellate fees as a sanction pursuant to section 57.105 are required to proceed pursuant to rule 9.410(b), not rule 9.400(b).”  Additionally, Bank failed to provide Plaintiffs with the 21-day “safe harbor” window in which to dismiss their appeal.  “[R]ule 9.410(b) requires that, prior to filing the motion, an appellate movant seeking to recover fees pursuant to 57.105 must serve the motion on the opposing party no later than ‘the time for serving any permitted response to the challenged paper.’”   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]

          Gribler petitioned for appointment of a guardian of the person and property of Beck and for appointment of an emergency temporary guardian.  The court appointed Yates as emergency temporary guardian.  Lawyer Kemp provided legal services to Gribler and Yates.  Beck died before a determination regarding Beck’s alleged incapacity was made.

          Kemp petitioned for fees under F.S. 744.108(1).  Lawyer Chlipala petitioned for fees for representing Beck.  The court denied all fee motions, relying on In re Guardianship of Klatthaar, 129 So.3d 482 (Fla. 2d DCA 2014) to hold that F.S. 744.108(1) did not authorize a fee award to either counsel “because the statute is ‘limited to situations where a judicial determination of incapacity is found by the court . . . and an appointment of a [plenary or limited] guardian over a ward is ordered.’”

          F.S. 744.108(1) provides:  “A guardian, or an attorney who has rendered services to the ward or to the guardian on the ward’s behalf, is entitled to a reasonable fee for services rendered and reimbursement for costs incurred on behalf of the ward.”  On appeal, the Second DCA separately addressed the statute’s applicability to the 3 situations presented (Kemp representing Gribler, Kemp representing Yates, and Chlipala representing Beck).

          Kemp was entitled to fees for the legal services that he provided to Yates, the temporary emergency guardian.  “[W]e hold that in the context of an emergency temporary guardianship, the emergency temporary guardian is a guardian and the subject of the guardianship is the ward for purposes of section 744.108(1).”  Klatthaar was inapplicable because no guardian of any type had been appointed in that case.

          Regarding Kemp’s claim for fees for representing Gribler, the appeals court noted that Gribler “was never a guardian or a ward under section 744.108(1)” and so Kemp’s representation of her was not “under the plain language of the statute, directed toward the category of persons – either guardian or ward – covered by section 744.108(1).”  The court observed that, pursuant to Thorpe v. Myers, 67 So.3d 338 (Fla. 2d DCA 2011), a petitioner in Kemp’s position might be entitled to fees “to the extent that the petitioner's request for the determination of incapacity and the appointment of the guardian redounds to the benefit of the ward – a party recognized under the statute.”  Accordingly, the court reversed the denial of fees to Kemp for representing Gribler and remanded for a determination of whether any part of those services benefitted the ward “such that [Kemp] might be entitled to seek fees under the statute.”

          Finally, the court remanded for determination of whether Chlipala was entitled to fees for representing Beck, because it was not clear for what purpose Chlipala was appointed.   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]

          Landlord sued Tenant for unpaid rent.  While that action was pending, fire damaged the property.  Landlord filed an amended complaint that added an eviction count based on Tenant’s failure to maintain insurance and also included damages claims.

          The court severed Landlord’s eviction claims from the damages claim and entered a summary judgment of eviction for Landlord in November 2010.  While its appeal of that judgment was pending, in January 2012 Tenant served a proposal for settlement on Landlord pursuant to F.S. 768.79, offering $15,000 to settle Landlord’s damages claims.  The proposal was conditioned on Landlord’s execution of the general release attached to the proposal.  Landlord did not accept.

          The damages claims were tried and Tenant prevailed.  Tenant then moved for fees pursuant to its proposal for settlement.  The court denied the motion, determining that Tenant’s “proposal ‘. . . is invalid because the plain language of the general release waives all claims for legal fees with no carve out for the legal fees relating to the eviction claims.’”  Tenant appealed.

         T he Third DCA affirmed.  “[W]we agree with the trial court that it is simply unclear from reading both the proposal language and the language of the attached general release, whether [Tenant]’s $15,000.00 is meant to include Landlord’s attorney’s fee claim associated with its eviction, or whether the Landlord’s fee claim is excepted from [Tenant]’s offer. This lack of clarity creates an ambiguity rendering the proposal unenforceable.”   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 sued MS Liquidators for payment allegedly due under a contract for services.  MS Liquidators asserted affirmative defenses including that the contract “was unenforceable due to the absence of essential terms and for a lack of consideration,” and that MS Liquidators was entitled to a setoff.  Following discovery, Infiniti filed motions for fees under F.S. 57.105 alleging that the affirmative defenses of lack of essential terms, lack of consideration, and setoff were factually and legally unsupportable.  After 2 years of litigation, on the day of trial MS Liquidators consented to entry of a judgment for the entire debt plus attorney’s fees.

          Infiniti then moved for 57.105 fees, but its motion was denied.  While viewing MS Liquidators’ conduct as “a model of unprofessionalism,” the court found that one affirmative defense (lack of essential terms) was “not ‘entirely baseless.’”  Infiniti appealed.

          The Fifth DCA reversed, holding that the trial court applied the pre-1999 version of F.S. 57.105 instead of the current version, which authorizes a fee award if the party knew that any claim or defense asserted was not supported by material facts or would not be supported by the application of then existing law to the facts.  Accordingly, “the trial court should have separately evaluated each of the three affirmative defenses and determined at what point ‘defense activities became unsupported.’”   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]

           Plaintiff Anderson and his wife sued 4 defendants following an armed robbery and shooting in a hotel parking lot.  Three of the defendants were related entities; at trial, with Plaintiff’s agreement, they were referred to as collectively “Embassy Suites.”  Plaintiff made pre-trial offers of settlement to each defendant pursuant to F.S. 768.79 and Fla.R.Civ.P. 1.442.  His offers to the 3 Embassy Suite defendants were for $650,000, $100,000, and $650,000.  Wife, who had a loss of consortium claim, made her own proposals to the defendant.  Wife voluntarily dismissed her claims before trial.  Defendants did not accept Plaintiff’s offers of settlement.

          At trial, the jury returned an unapportioned verdict against the Embassy Suite defendants in the amount of $1.25 million.  For F.S. 768.79 purposes, this amount was more than 25% greater than Plaintiff’s offers to any one defendant – but less than the aggregate amount of settlement offers to all 3 defendants.  The trial court denied Plaintiff’s motion for attorney’s fees.  The Fifth DCA affirmed, agreeing with the trial court that Plaintiff’s separate proposals to the 3 Embassy Suites defendants were unenforceable for the purpose of a fee award:  “Because Anderson requested to have these three entities treated as one by the jury, and given that the judgment obtained against the ‘Embassy Suites’ defendants was actually less than the sum of the demands for judgment made against them, the purpose behind the enactment of section 768.79 (i.e., to sanction a party for rejecting a presumptively reasonable proposal for settlement) would be ill-served by assessing attorney’s fees against” the 3 Embassy Suite defendants.  Hilton Hotels Corp. v. Anderson, 153 So.3d 412, 416-17 (Fla. 5th DCA 2014).

          The Fifth DCA’s decision conflicted with decisions of the Second and Fourth DCA.  Exercising its conflict jurisdiction, the Supreme Court quashed the Fifth DCA’s decision.

          The Court pointed out that the entitlement to a fee award under F.S. 768.79 “hinges on the ‘judgment obtained,’ as opposed to a verdict form returned by the jury.”  Neither F.S. 768.79 nore Rule 1.422 require that the obtain a judgment from a designated party; rather, entitlement to a fee award is “only dependent upon a sufficient offer and judgment obtained, not a judgment ‘obtained from designated offerees.’”  The Court explained that Plaintiff Anderson was “entitled to attorneys’ fees based on his separate offers to Hilton, W2007, and Interstate [the Embassy Suite defendants].  Anderson offered to settle with Hilton for $650,000, with W2007 for $100,000, and with Interstate for $650,000.  The trial court entered a judgment against these Respondents in the amount of $1,225,487.52, which is approximately 189% of the offers Anderson made to Hilton and Interstate, and approximately 1225% of the offer made to W2007.  The only way that these offers could not satisfy the statutory requirement would be if the offers were to be aggregated, which cannot be tolerated under a strict construction of section 768.79.  . . .  Thus, Troy Anderson’s offers to Hilton, W2007, and Interstate complied with the requirements of section 768.79 and Rule 1.442; upon obtaining a judgment that was at least 25% greater than any one of these offers, Troy Anderson became entitled to attorneys’ fees.  The fact that the judgment entered by the trial court did not specify that Hilton, W2007, and Interstate were jointly and severally liable to Anderson for this judgment did not otherwise destroy this entitlement.”

          The Court also rejected the claim that Plaintiff’s offers were actually joint offers along with his wife.  The language of the offers belied this claim, and the courts below engaged in improper “nitpicking” to find ambiguity.   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 served 2 defendants with identical offers of judgment, “specifying that the offers included costs, interest, and all damages or monies recoverable under the complaint and by law.”  After Kuhajda prevailed, the trial court granted her motion for fees.  The court determined that “the failure to include the attorney’s fees language in the offer of judgment did not create an ambiguity because Kuhajda never sought attorney’s fees in her complaint.”  The First DCA reversed, holding that an offer of judgment must strictly comply with Fla.R.Civ.P. 1.442(c)(2)(F), even when the complaint does not include a claim for fees.  Borden Dairy Co. of Alabama, LLC v. Kuhajda, 171 So. 3d 242 (Fla. 1st DCA 2015).

              Exercising  conflict jurisdiction, the Supreme Court quashed the First DCA’s decision and approved  Bennett v. American Learning Systems of Boca Delray, Inc., 857 So. 2d 986 (Fla. 4th DCA 2003).  “This Court has held that section 768.79 and rule 1.442 must be strictly construed because they are in derogation of the common law rule that each party should pay its own fees.”  None of the Court’s cases, however, “explicitly addresses whether a provision of rule 1.442 must be strictly enforced when the provision is a requirement that does not implement a substantive requirement of section 768.79.”

          The Court concluded:  “We decline to invalidate Kuhajda’s offers of judgment solely for violating a requirement in rule 1.442 that section 768.79 does not require. The procedural rule should no more be allowed to trump the statute here than the tail should be allowed to wag the dog. A procedural rule should not be strictly construed to defeat a statute it is designed to implement.”   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]

          A workers’ compensation Claimant filed a petition for benefits seeking payment of medical expenses.  F.S. 440.34(3)(b) provides that a successful claimant can recover attorney’s fees from the employer/carrier (“E/C”), but further provides that “attorney’s fees shall not attach” until 30 days after the E/C receives the petition for benefits.  In Claimant’s case, the E/C accepted responsibility for the medical expenses within this 30-day grace period but did not actually pay those expenses within 30 days.  The Judge of Compensation Claims denied Claimant’s petition for attorney’s fees. 

          The First DCA affirmed.  “We hold that so long as the carrier or employer accepts responsibility for medical expenses within the thirty-day grace period, it is not liable under section 440.34(3)(b) for fees associated with those benefits.”  The court explained its reasoning:  “When it comes to medical benefits, a claimant’s successful prosecution ends when the carrier or employer accepts responsibility, regardless of when the carrier or employer actually pays the medical providers.  In this case, that happened within thirty days after the employer/carrier received the petition for benefits, so [Claimant]’s attorney’s fee petition was properly denied.”   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]

          The personal representative (“PR”) of a decedent brought suit against nursing home entities (“Defendants”).  Defendants moved to compel arbitration pursuant to arbitration agreements that the decedent had signed.  PR argued that the arbitration agreements “violate public policy because they require each party to pay for their own attorneys' fees, thereby eliminating the fee-shifting provision of section 415.1111.”  The trial court viewed this as an unconscionability argument and granted the motion to compel arbitration.  PR appealed.

          The Second DCA affirmed the order compelling arbitration, but severed the fee clause from the agreements.  The trial court “mistakenly” focused on unconscionability.  “[T]he question of whether an agreement is unconscionable is distinct from the question of whether it is void as against public policy.  . . .  [PR’s] main argument at the hearing was that the arbitration agreements are void as against public policy because they defeat the remedial purpose of section 415.1111.”  The appeals court agreed with PR.  “The arbitration agreements in this case require the parties to equally bear the fees associated with arbitration, in contravention of [PR’s] statutory right to seek a full award of her fees under the prevailing party attorneys’ fees provision of section 415.1111.  Thus, according to Flyer Printing Co. [v. Hills, 805 So.2d 829 (Fla. 2d D CA 2001)], this provision of the arbitration agreements violates public policy.”  (Footnote omitted.)   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]

          Lawyer represented Claimant in a workers’ compensation case.  In 2008 a Judge of Compensation Claims (JCC) entered a final order dismissing all of Claimant’s pending petitions for benefits (PFBs).  The order was affirmed on appeal.  While the appeal was pending, Lawyer withdrew a pending claim for fees.

          In 2015 the Employer/Serving Agent (E/SA) filed a motion to deny all pending claims.  The JCC denied that motion because there were no claims pending.  The E/SA then moved to compel Lawyer to file a verified petition for fees and costs.  The JCC granted the motion and ordered Lawyer to file a verified petition.  Lawyer’s motion for rehearing was denied, and he appealed.

          The First DCA reversed.  Dismissal of all PFBs divests the JCC of jurisdiction.  “[Lawyer] cannot be forced to make a claim, under either the statute or the rule, if he does not wish to do so.  The JCC, therefore, had no jurisdiction to compel [Lawyer] to file a verified motion for attorney’s fees.”

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]

          In a retaliatory discharge case, Employee made an offer of judgment under F.S. 768.79.  The trial court held the offer to be invalid under Diamond Aircraft Industries, Inc. v. Horowitch, 107 So.3d 362 (Fla. 2103), where the Florida Supreme Court ruled that the statute is inapplicable in cases in which a plaintiff seeks both damage and equitable relief.

          The Third DCA reversed.  “The Employee’s passing reference to “equitable relief” in the operative complaint does not change our conclusion, particularly where, as here, the Employer could not identify any equitable relief that was ever at issue in the discovery or trial of this matter.”   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]

          Mother moved for a change of custody, seeking to have the child live with her in California.  The trial court denied the motion.  Father sought fees under F.S. 61.16 and Rosen v. Rosen, 696 So.2d 697 (Fla. 1997).  The court awarded Father a portion of the requested fees, characterizing Mother’s position as “selfish.”  Mother appealed.

          The Second DCA reversed.  Although a trial court may take into account the manner in which a party litigated a case, it may not award fees under F.S. 61.16 unless the party has the ability to pay.  The record demonstrated that Mother did not have the ability to pay.  Further, Mother’s conduct was not of the level that the inequitable conduct doctrine of Rosen was intended to punish.   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]

          Defendants, a law firm and its principal, were sued for alleged violations of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) and for alleged violations of the Florida Consumer Collection Practice Act (FCCPA).  Defendants prevailed on the FDUTPA claims, but plaintiff prevailed on his FCCPA claims.  After the judgments were affirmed, each party moved for appellate attorney’s fees.  Plaintiff was awarded fees under the relevant FCCPA provision, and Defendants were awarded fees under the relevant FDUTPA provision.

          On rehearing, the Fourth DCA ruled that Defendants were not entitled to fees.  “Case law establishes that where there are multiple theories of liability directed at a set of facts, a defendant is entitled to recover fees for prevailing on a claim under the [FDUTPA], if it prevails not only on the FDUTPA claim, but also on all pleaded legal theories, such that it obtains a judgment in its favor on the entire case.”  Here, Defendants were not entitled to a fee because they did not obtain a favorable judgment in the entire case, on all causes of action.  See Heindel v. Southside Chrysler-Plymouth, Inc., 476 So.2d 266 (Fla. 1st DCA 1985).

          The court concluded by stating:  “To allow attorney’s fees where a plaintiff does not prevail under one consumer protection statute –but obtains a judgment under a different consumer law or a common law cause of action – would discourage consumers from using statutes designed for their own protection.”   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]

          Lawyer represented Claimant in a workers’ compensation case.  The employer/carrier offered to settle for $25,100, but Claimant rejected the offer and discharged Lawyer.  Lawyer filed a notice of charging lien asserting he was entitled to a quantum meruit fee.  Claimant hired Successor Counsel, who obtained a $39,150 settlement for Claimant.

          Lawyer filed a motion to enforce his charging lien.  Claimant, through Successor Counsel, stipulated that quantum meruit was the proper method to determine Lawyer’s fee and that Lawyer’s claimed fee was reasonable.  The Judge of Compensation Claims (JCC), however, rejected the stipulation and denied the motion.  Lawyer appealed.

          The First DCA reversed “because the JCC abused her discretion when she rejected the parties’ stipulation as to both the entitlement and the amount of a quantum meruit fee.”  The JCC’s ruling was based on her determination that Lawyer did not carry his burden to satisfy entitlement to a fee, where he “did not establish why he was discharged and did not show that he obtained any benefit for which he would be entitled to a Claimant-paid attorney’s fee.”  These factors were not necessary, however, because there was no competent, substantial evidence from which the JCC could conclude that Lawyer was not entitled to the fee.   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]

          On a motion for rehearing or clarification, the Second DCA addressed the question of whether F.S. 627.428(1) authorizes the court to conditionally grant appellate attorney’s fees to parties that petition for writ of certiorari rather than appeal.  Insureds had been granted certiorari relief by the appellate court.  They moved for appellate fees under the statute, conditioned upon their prevailing in the trial court on remand.  The motion was denied.

          On rehearing or clarification, the Second DCA vacated its prior decision and ruled that the award of fees could be granted under the statute.  The court relied upon and quoted from the Supreme Court’s decision in Home Ins. Co. v. Drescher, 220 So.2d 902, 903 (Fla. 1969):  “[W]e hold that attorneys' fees may be awarded under the amended statute for services in the appellate court, whether on direct appeal or in certiorari proceedings, in all cases where the notice of appeal is filed subsequent to July 27, 1967.”  The Second DCA noted that the Supreme Court has “continued to approve fee awards under section 627.428(1) in certiorari proceedings.”   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]

          In a dissolution case, the trial court awarded Wife $10,000 in lump-sum bridge-the-gap alimony following the short-term marriage.  The court determined that the former wife (“Wife”) was entitled to a fee award based on a significant disparity in the parties’ non-marital assets.  Wife requested $27,000 in fees.  Husband argued that “the case was overly litigated as a result of the former wife’s position regarding alimony, and her awarded attorney’s fees should be diminished because of her unreasonable rejection of a settlement offer of $25,000.”

          The court awarded about $11,000 in fees, denying Wife more than $15,000 in fees that accrued after she rejected Husband’s offer. “The trial court noted the former wife unreasonably rejected the offer in part because ‘[s]he ultimately received much less after trial.’”  The court did not indicate that it considered any other relevant factors in limiting the fees to Wife.

          The First DCA reversed.  In Aue v. Aue, 685 So.2d 1388 (Fla. 1st DCA 1997), the court “specifically stated that while there may be special circumstances to consider in addition to the parties’ financial positions when determining entitlement to attorney’s fees, no authority existed for denying fees solely based on the failure to accept an offer of settlement.”

          The appeals court noted that its decision, and a decision of the Third DCA, conflicted with a Fourth DCA decision and, accordingly, certified conflict “to the extent that [the Fourth DCA case] determines that rejection of a settlement offer may be the sole basis for overriding a determination of an award of financial need in denying attorney’s fees accrued after the rejection.”   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 was the specific devisee of real property under Allen’s will.  Jordan sued Allen’s estate seeking specific performance of a contract to sell the property to her.  Hampton moved for authority to defend the action, which was granted, and then succeeded in having Jordan’s action dismissed.  Hampton’s motion for fees from Allen’s estate under F.S. 733.106(3) was denied.

          The Fifth DCA reversed.  Hampton’s successful defense of the specific performance action benefitted the estate.  “In successfully defending against Jordan’s specific performance action, the real estate was transferred to Hampton in accordance with Allen's intent, as embodied in his will.  As such, Hampton's request for attorney's fees should have been granted.”   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]

          Lopez filed against Hall a petition for injunction for protection against repeat violence pursuant to F.S. 784.046.  The trial court entered a temporary injunction.  Hall filed a motion for attorney’s fees and sanctions against Lopez and her lawyer under F.S. 57.105.  Lopez then voluntarily dismissed the action.  After a hearing on the fee motion, the trial court ruled that 57.105 fees may not be awarded in an action for injunction against violence.  Hall appealed.

          The First DCA reversed.  “Given the absence of a statutory provision providing that an award of attorney’s fees pursuant to section 57.105 is impermissible in a Chapter 784 (or Chapter 741) proceeding, and in light of the language in section 57.105 that its provisions apply to civil proceedings/actions and are supplemental to other sanctions/remedies, we hold that an award of attorney’s fees pursuant to section 57.105 is not prohibited in an action under section 784.046.”

          The appeals court certified conflict with decisions of the Third and Fifth DCAs.   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]

          Several law firms engaged in contentious litigation over a disputed fee agreement.  One suit in the series was brought by Watson against Appellees, alleging libel, slander, abuse of process, and malicious prosecution.  After prevailing in the suit, Appellees filed a motion for fees pursuant to F.S. 57.105.  Although the motion failed to fully comply with the “safe harbor” provisions of the statute, Appellees argued at the hearing that “it did not matter that the procedural requirements of the safe harbor provision were not followed, since the trial court had the authority to grant attorney’s fees on its own initiative.”  The court indicated that it had been thinking that the suit should never had been filed, and ultimately granted the motion for fees.

          The Fourth DCA affirmed.  “[W]e we now expressly hold that a trial court does not abuse its discretion in ordering a party to pay attorney’s fees pursuant to section 57.105(1) on its own initiative, even if a motion is filed by a party and the moving party fails to comply with the safe harbor requirements of the rule, as long as it can be determined from the record that the trial court is not simply adopting the moving party’s motion.”  (Emphasis by court.)  Here, the trial court’s indication that it had “formed an impression regarding the frivolous nature of the pleading even prior to the fees motion having been filed” was sufficient.

          The appeals court further stated that “the safe harbor notice provisions do not apply to the award of fees on the court’s own initiative.”  The court must be neutral, and so it would be “inappropriate” to require the court to comply with those provisions.

          Finally, a trial court is not required to give a separate notice of its intent to entertain a section 57.105 motion on its own initiative, when a motion for fees was filed by a party and notice of hearing on the party’s motion was given.  Again, for the court to give such a notice would give an “appearance of impropriety” by “suggesting in advance that the motion will be granted.”   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]

          Plaintiff sued two Defendants after his parked truck was struck by a vehicle driven by one defendant and owned by the other.  Plaintiff served a proposal for settlement on each defendant under F.S. 768.79 and Fla.R.Civ.P. 1.442.  The proposals were not accepted.  After a favorable verdict, Plaintiff moved for attorney’s fees based on the rejected proposals.  The trial court granted fees.  Defendants appealed.

          The Fifth DCA reversed, concluding that the proposals were ambiguous and thus unenforceable.  Each proposal stated in paragraph five that it was “inclusive of all damages claimed by Plaintiff.”  The court explained:  “As ‘all damages’ claimed arguably are those that could have been (and were) imposed on both Appellants in this case, paragraph five of [Plaintiff]’s proposal for settlement could be reasonably interpreted to mean that the acceptance of the proposal for settlement by only one of the [Defendants] resolved [Plaintiff]’s entire claim against both [Defendants].”   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]

          After a corporate borrower and its guarantor, Jesus Rios, defaulted on a loan, Bank modified the loan and took as collateral a mortgage on residential property.  When the loan was not repaid, Bank sued the borrower, the guarantor, and the guarantor’s co-mortgagor Ada Rios.  Ada Rios moved to dismiss on the ground that she did not sign the mortgage.  Ada sought fees under F.S. 57.105(4).  Bank voluntarily dismissed Ada.  She then moved for fees as a sanction under section 57.105(1) or, alternatively, as a prevailing party under the reciprocal provision of section 57.105(7).  The trial court ruled that Ada was not entitled to fees as a sanction but was entitled to contractual fees under section 57.105(7) as a prevailing party.  Bank appealed.

          The Fifth DCA reversed.  Ada failed to plead and prove that she was a party to the mortgage containing the fee provision.  “The Bank argues, and we agree, that the entitlement to prevailing party fees under section 57.105(7) applies only when the party seeking fees both prevails and is a party to the contract containing the fee provision.”  (Emphasis by court.)   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]

          Insureds litigated and won a coverage dispute with Insurer.  Insureds moved for attorney’s fees under F.S. 627.428.  At the fee hearing, Insureds did not testify.  The trial court awarded fees, including a multiplier of 2.0.  “The court was apparently impressed by [Insureds’] counsel’s willingness to see the matter through trial.  Remarking that ‘there may be multiple attorneys out there that are willing to go to trial, actually going to trial is another issue,’ the court likened trial experience to a market condition that necessitated a contingency fee multiplier.  Or as the court put it, ‘It is the rare attorney that actually goes all the way through trial to the completion.’”

          The Second DCA reversed the application of a multiplier.  Insureds presented no evidence that the local legal market (Tampa Bay) could not provide competent counsel for the case at prevailing hourly rates.  “Nor can we accept the circuit court’s justification that the case’s resolution through a trial, in and of itself, merited a fee multiplier.”

          In a closing footnote, the appeals court observed that the use of trials to resolve civil disputes may be “waning,” but stated that “we do not glean from this record that an insurance coverage trial has become such a Halley’s Comet event that the majority of local, competent insurance lawyers would refuse to handle such a matter for anything less than double their market rates.”   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]

          Mortgage Company brought a foreclosure action against Wife and Husband.  Husband was dismissed on summary judgment, because although he had an ownership interest in the property he did not sign the note or mortgage.  Husband moved for sanctions under F.S. 57.105.  The trial court granted the motion.

          The Fourth DCA reversed.  Mortgage Company had named Husband as a defendant, despite not alleging that he was a signatory to the mortgage.  But Mortgage Company later showed that “there was at least some triable set of facts under which [Husband] could be liable under the mortgage agreement.  The face of the mortgage indicates that there was an additional signature page, and while that page was not attached, its absence does not indicate that a theory based on its existence, with [Husband]’s signature on it, was ‘frivolous or so devoid of merit both on the facts and the law as to be completely untenable.’”  (Citation omitted.)

          The appeals court explained its reasoning, discussing the standard to be used under section 57.105:  “[Mortgage Company]’s lack of concrete proof of that fact at the time of filing does not mean its complaint was frivolous.  A party does not need to have conclusive evidence to prove its case at the time of filing in order to avoid sanctions.  Instead, like here, where the party reasonably believes the factual basis for its claim exists, it is entitled to proceed with its claims and seek to prove those facts.  If attempts to prove those facts are fruitless, that is still not cause for sanctions where the party’s initial belief was well-founded.  It is only in circumstances like Country Place [Community Ass’n v. JP Morgan Mortgage Acquisition Corp., 51 So.3d 1176 (Fla. 2d DCA 2010)] where the party knew or should have known at the time of filing that the material facts were nonexistent that a claim is truly frivolous and worthy of sanctions.”   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]

          In an insurance dispute, Insurer served a proposal for settlement on Insured.  The proposal was not accepted.  The proposal included language requiring Insured’s counsel to agree that “all . . . claims of third parties will be extinguished by” Insured and her counsel.  The proposal contained no signature block or other provision to indicate counsel’s agreement.

          After a favorable jury verdict, Insurer moved for fees.  The trial court denied the motion.  Insurer appealed.

          The Third DCA affirmed.  “A proposal must be drafted so that the offeree has ‘the ability to evaluate and independently act to resolve the case against her . . .’  Paduru v. Klinkenberg, 157 So.2d 314, 318 (Fla. 1st DCA 2014).”  Insurer’s proposal did not satisfy this requirement.  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]

          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.  Before the 30-day period for accepting the proposal expired, Defendant filed a motion to enlarge time under rule 1.090.  About 2 months after the end of the 30-day acceptance period, a hearing was held on Defendant’s motion to enlarge time.  Before the court ruled, Defendant served a notice purporting to accept the settlement proposal.  Plaintiff moved to strike the acceptance as untimely.  Ultimately the court denied the motion to strike and granted Defendant’s motion to enforce the settlement.  Plaintiff appealed.

           The Second DCA reversed.  “[W]e we hold 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.  Rule 1.442(f)(1) sets a hard thirty-day deadline for acceptances, and rule 1.090 authorizes enlargements but does not provide for tolling.  To hold that a motion to enlarge the thirty-day period automatically tolls it until the motion is decided would require us to insert the necessary text into one or the other of the rules where that text does not in fact exist.  That exercise is foreclosed to us.”

          The court certified conflict with the Fifth DCA (Goldy v. Corbett Cranes Services, Inc., 692 So.2d 225 (Fla. 5th DCA 1997)).   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]

          Plaintiff sued Defendant for alleged breach of a written agreement.  Defendant served Plaintiff with a proposal for settlement, which was not accepted.  The proposal proposed “to resolve ‘[a]ll issues and claims for damages asserted against [Defendant] in [Plaintiff’s] complaint filed with respect to the above styled matter on February 15, 2012,’ for a payment of $1,000.00.”  Per rule 1.442, the proposal specified that there were no non-monetary terms, there was no amount proposed regarding claims for punitive damages, and there was no offer for Plaintiff’s attorney’s fees.  “No form of release was mentioned in, required by, or attached to” Defendant’s proposal.

           Plaintiff received a verdict for $1.00.  Defendant moved for fees pursuant to the rejected proposal for settlement.  The trial court denied the motion, however, stating that Defendant’s amendment of the pleadings after making the proposal “mooted out the proposal.”

          The Third DCA reversed.  The trial court erred in ruling that Defendant’s amendment to add affirmative defenses while the proposal was pending “mooted out the proposal.”  Defendant’s proposal “was for a fixed monetary amount to settle ‘all issues and claims for damages’ in [Plaintiff’s] complaint.  [Plaintiff] did not amend the complaint or his claim for damages following the proposal.  We find no basis in precedent, Rule 1.442, or section 768.79, to support [Plaintiff’s] argument that his adversary’s amendment to its affirmative defenses somehow ‘moots’ or otherwise vitiates a clear, timely, good faith, and straightforward proposal for settlement.”

           The appeals court also rejected Plaintiff’s contention that the proposal was ambiguous because it did not specify whether the claims would be resolved by a full or partial release, dismissed, or otherwise resolved.  The court cited with approval the analysis used to reject this argument in Jacksonville Golfair, Inc. v. Grover, 988 So.2d 1225 (Fla. 1st DCA 2008) and Palm Beach Polo Holdings, Inc. v. Madsen, Sapp, Mena, Rodriguez & Co., 957 So.2d 36 (Fla. 4th DCA 2007).  “The inclusion of terms regarding a release – the very mention (and form) of which has engendered sufficient quibbling to jeopardize the efficacy of the fee-shifting rule and statute – is not required.”   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]

          Pursuant to an auto insurance policy, insurer GEICO defended its insured against a suit filed by Macedo.  Macdeo made a proposal for settlement under F.S. 768.79, which GEICO did not accept.  After a favorable verdict, Macedo joined GEICO to the judgment and moved for attorney’s fees.  The trial court awarded fees against GEICO.

           The First DCA affirmed.  The insurance policy gave GEICO “the sole right to litigate and settle claims, and contractually obligated it to pay for ‘all investigative and legal costs incurred by us’ and ‘all reasonable costs incurred by an insured at our request.’”  Citing New Hampshire Indemnity Co. v. Gray, 177 So.3d 56 (Fla. 1st DCA 2015), the court pointed out that the attorney’s fee award was the result of the insurer choosing to litigate rather than accept the settlement proposal.

           The appeals court certified conflict with the Second DCA’s decision in Steele v. Kinsey, 801 So.2d 297 (Fla. 2d DCA 2001).   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]

          Plaintiff sued Defendants following a failed real estate investment.  Defendants made proposals for settlement that were not accepted.  Upon prevailing at trial, Defendants moved for attorney’s fee based on the unaccepted proposals for settlement.  The trial court granted the motions.

          Plaintiff appealed, contending that the proposals did not satisfy the requirements of Fla.R.Civ.P. 1.442 because they failed to state whether attorney’s fees were part of the claim for relief.  Rule 1.442(c)(2)(F) states:  “A proposal shall . . . state whether the proposal includes attorneys’ fees and whether attorneys’ fees are part of the legal claim.”  (Emphasis by court.)  The proposals stated in one paragraph that “all claims against Defendant” were to be resolved by the proposals, and in another paragraph that the proposal “is inclusive of all attorney’s fees and costs.”

          The Fourth DCA agreed with Plaintiff and reversed.  F.S. 768.79 and Rule 1.442 are strictly construed, and the proposals were not sufficiently specific to comply with the rule.  “While While the proposals included attorney’s fees, they neglected to include a statement that “attorney’s fees [were] part of the legal claim.”  The proposals satisfied only half of rule 1.442(c)(2)(F)’s requirements.  [Diamond Aircraft Industries, Inc. v.] Horowitch, 107 So.3d [62 (Fla. 2013)] at 376–78. They were therefore invalid and unenforceable.”  (Emphasis by court.)  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, Inc. was sued by Suttles.  Vanguard served a proposal for settlement on Suttles.  The proposal rejected.  After learning that Vanguard had converted from a corporation to a limited liability company (“LLC”), Suttles amended his complaint to add Vanguard LLC as a defendant.  Final judgment was rendered for Vanguard LLC, which then moved for attorney’s fees under F.S. 768.79 based on the rejected proposal for settlement.  The trial court denied the motion, ruling that “Vanguard LLC, the prevailing party in the action, could not recover its fees and costs because Vanguard, Inc. had made the proposal for settlement” (footnote omitted). 

          The Third DCA reversed.  The proposal met the requirements under F.S. 768.79, and there was no finding that it was not a good faith offer.  The trial court erred in concluding that the party that made the offer was not the same party that secured the favorable recovery.  “[U]nder under both Delaware and Florida law, pre and post-converted entities are to be treated as the same  entity for all purposes.  Thus, the party which made the proposal for settlement below must be treated as the same entity in whose favor judgment was entered. Vanguard LLC f/n/a Vanguard Inc. was entitled to a fee award.”   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]

            A workers’ compensation Claimant filed a petition for benefits.  The Employer/Carrier (“E/C”) vigorously contested the claim, raising more than a dozen defenses.  The Judge of Compensation Claims (“JCC”) determined that Claimant was entitled to compensation and that, accordingly, he was entitled to recover attorney’s fees from the E/C.  Claimant requested a fee of $350 per hour for his lawyer.  Applying F.S. 440.34(1) (2009), the JCC awarded Claimant’s lawyer a fee of $164 for 107.2 hours of legal work – an amount of $1.53 per hour.  Claimant appealed.

          The First DCA reluctantly affirmed, stating:  “We do not disagree with the learned judge of compensation claims that the statute required this result, and are ourselves bound by precedent to uphold the award, however inadequate it may be as a practical matter.”  The court rejected the claimant’s constitutional challenges.  Castellanos v. Next Door Co., 124 So.3d 392 (Fla. 1st DCA 2013).

          The First DCA certified the matter to the Supreme Court as a question of great public importance.  The Supreme Court rephrased the certified question as:  “Whether section 440.34, Florida Statutes (2009), which mandates a conclusive fee schedule for awarding attorney’s fees to the claimant in a workers’ compensation case, is unconstitutional as a denial of due process under the Florida and United States Constitutions.”  The Court answered in the affirmative.

          In adopting the present version of the statute, the legislature “eliminated any consideration of reasonableness and removed any discretion from the JCC, or the judiciary on review, to alter the fee award in cases where the sliding scale based on benefits obtained results in either a clearly inadequate or a clearly excessive fee.”  The Court noted that a lawyer’s assistance is important to a claimant and that a claimant’s right to a reasonable attorney’s fee has been a “critical feature” of the workers’ compensation law since 1941.  The Court summarized:  “Considering that the right of a claimant to obtain a reasonable attorney’s fee has been a critical feature of the workers’ compensation law, we conclude that the mandatory fee schedule in section 440.34, which creates an irrebuttable presumption that precludes any consideration of whether the fee award is reasonable to compensate the attorney, is unconstitutional under both the Florida and United States Constitutions as a violation of due process.”

          Two justices dissented.   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 and MYD Mid-Atlantic (collectively, “MYD”) sued International Paint (“IP”) for alleged antitrust violations, seeking money damages and injunctive relief.  IP served an offer of judgment on each of the MYD entities.  The offers stated that they were limited to settlement of “all claims for money damages” and that the offers did “not attempt to resolve [MYD’s] claims for injunctive relief.”  The offers were not accepted.

           After IP obtained a summary judgment, it moved for attorney’s fees based on the offers of judgment.  MYD argued that the offers did not comply with F.S. 768.79 “because MYD sought both damages and equitable relief in the form of a permanent injunction.”  The trial court rejected that argument and awarded fees to IP, basing its decision “on the fact that MYD did not pursue injunctive relief with the trial court and only litigated its money damages.”  MYD appealed.

           The Fourth DCA affirmed.  In Diamond Aircraft Industries, Inc. v. Horowitch, 107 So.3d 362 (Fla. 2013), “the Florida Supreme Court approvingly cited to authority suggesting that section 768.79 may be utilized in a suit seeking monetary and nonmonetary relief if the ‘true relief’ sought is monetary.”  See also Yacht Club on the Intracoastal Condominium Ass’n, Inc. v. Lexington Ins. Co., 559 Fed.Appx. 875 (11th Cir. 2015) (applying “true relief” analysis).  The Fourth DCA stated that the trial court had applied the “true relief” analysis and “found that MYD did not actually pursue any nonmonetary relief during the course of the litigation and instead only sought money damages.  In this scenario, it correctly concluded that International Paint’s offers of judgment were enforceable.”   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]

Defendant was sued for alleged medical malpractice.  Defendant’s misconduct with a trial witness resulted in a mistrial.  Plaintiff moved for attorney’s fees as sanctions, seeking $49,000 for time spent preparing for trial.  The court denied the motion without prejudice.

           A second trial also ended in a mistrial.  A third trial resulted in a verdict for the Plaintiff.  Plaintiff then renewed the motion for attorney’s fees.  The court awarded fees of $238,202 for time spent on all three trials.  This was error.  While Defendant’s conduct merited sanctions, the trial court “abused its discretion when it awarded attorney’s fees beyond that necessary to compensate the plaintiff for its preparation for and conduct of the first trial.  An attorney’s fee award must directly relate to the attorney’s fees and costs that the opposing party incurred as a result of the specific bad faith conduct. See Moakley v. Smallwood, 826 So.2d 221, 224 (Fla. 2002). The time spent in preparation for and conduct of the second and third trials did not directly relate to [Defendant]’s misconduct.”   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]

          Alleging that it was the assignee of a credit card agreement, collection agency HFC sued Alexander.  Alexander admitted having an agreement with the original credit card company, but denied that she signed the copy of the credit card agreement attached to HFC’s complaint.  She argued that HFC lacked standing to enforce the contract between her and the credit card company.  The county court granted summary judgment for Alexander.

          The county court granted Alexander’s motion for fees under the reciprocal provisions of F.S. 57.105(7).  HFC appealed.  The circuit court, in its appellate capacity, affirmed:  “HFC was estopped from challenging the award of attorney fees by arguing that no contract existed between it and Alexander.”

          On second-tier certiorari review, the Fifth DCA quashed the fee order.  The circuit court applied the wrong law.  The absence of a contract between the parties meant that Alexander could not employ section 57.105(7) to enforce the fee provision of the credit card agreement against HFC, after proving that HFC never became a party to that contract.

          The circuit court’s reliance on estoppel against HFC was also incorrect.  “HFC did not successfully maintain that there was a contract between it and Alexander, and thus HFC is ‘not estopped from thereafter maintaining that since there is no contract, no attorneys’ fees can be awarded.’”  (Emphasis by court; citation omitted.)

          The appeals court did note, however, that an alternative, non-contractual basis for imposition of fees as a sanction might be available.  It remanded for the lower court to consider whether “[o]nce it received and considered Alexander’s motion for summary judgment, HFC knew or should have known that its claim was not supported by the material facts necessary to establish its claims.”   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]

          A police officer (“Claimant”) sought workers’ compensation benefits.  She retained Law Firm to represent her.  Two retainer agreements were signed:  one was between Law Firm and the Fraternal Order of Police (“FOP”) under which FOP would pay Law Firm a flat fee of $1500 to represent Claimant for up to 15 hours of work; and the other was between Claimant and Law Firm under which Claimant would pay Law Firm an hourly rate for all time expended on her case above the initial 15 hours.  “Claimant acknowledged in the agreement that the Workers’ Compensation Law prohibits such a fee arrangement, and specifically waived those statutory prohibitions.”

          Claimant’s lawyer filed a motion to approve both retainer agreements.  The motion specifically alleged that “’it would not be economically feasible for the undersigned to continue on a purely contingent basis with fee restrictions as contained in Florida Statute § 440.34.’  The attorney certified that if the JCC denied the retainer fee, the Firm may have no choice but to withdraw.”  The Judge of Compensation Claims (“JCC”) denied the motion.  The JCC’s order stated that the workers’ compensation law “as it currently exists does not allow for non-contingent, claimant-paid hourly fees for prosecution of a claim on the merits.”

          After the motion to approve the fee contracts was denied, Claimant’s counsel moved to withdraw.  Counsel “explained that a conflict of interest now arose, because Claimant wished to pursue the claims, but her counsel’s continued representation of Claimant would create a financial hardship for her counsel, ‘as well as an undue burden on her ability to practice law and to zealously represent her other clients if she were to be forced to remain as counsel of record on these claims.’  Finally, Claimant’s attorney advised that Claimant had been served with this motion to withdraw ‘and has indicated she does not object to same.’  The JCC granted the motion to withdraw and impress lien, finding that ‘claimant and claimant’s counsel are in a position of conflict.’”

          Claimant’s petitions for benefits ultimately were denied.  Claimant appealed, contending that the JCC erred in denying the motion to approve her attorney’s fee agreements.  Claimant asserted that F.S. 440.105 and F.S. 440.34 are unconstitutional as applied to her case because they infringe on her First Amendment rights.  The First DCA agreed:  “We hold that the challenged provisions violate Claimant’s First Amendment guarantees of free speech, freedom of association, and right to petition for redress.”

          The court explained:  “[W]e conclude that, to the extent these statutes prohibit a workers’ compensation claimant (or a claimant’s union) from paying attorney’s fees out of their own funds for purposes of litigating a workers’ compensation claim, these statutes are unconstitutional, because they impermissibly infringe on a claimant’s rights to free speech and to seek redress of grievances.  Additionally, any fee agreement ‘must nonetheless, like all fees for Florida attorneys, comport with the factors set forth in Lee Engineering & Construction Co. v. Fellows, 209 So.2d 454, 458 (Fla.1968), and codified in the Rules Regulating the Florida Bar at rule 4–1.5(b).’  Jacobson [v. Southeast Personnel Leasing], 113 So.3d [1042 (Fla. 1st DCA 2013)] at 1052.  Consequently, we hold that no attorney accepting fees in this situation may be prosecuted under section 440.105(3)(c), Florida Statutes.”

          Further, the court ruled that the statutes impermissibly infringed on the right to contract.

          Finally, the court determined that a workers’ compensation claimant may waive the statutory fee provisions.  Because a person may waive constitutional rights, “[l]ogically, then, if a person can waive constitutional rights, a person can also waive statutory rights such as those in section 440.34, Florida Statutes.  For example, in 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)],     the Florida Supreme Court approved a Florida Bar rule that allowed medical malpractice plaintiffs to waive the constitutional caps on attorney’s fees, subject to certain conditions.  . . .  [W]e see no reason why a workers’ compensation claimant should not be able to waive a limitation on claimant attorney’s fees and agree to pay her attorney with her own (or someone else’s) funds, subject to a JCC’s finding that the fee is reasonable.”   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]

          Insured prevailed against Insurer in a suit on a sinkhole claim.  Insured was awarded attorney’s fees.  Insurer appealed, challenging the use of a multiplier in calculating the fee award.

          The Second DCA reversed.  The court pointed out that a multiplier is appropriate when “(1) the relevant market requires a contingency multiplier to obtain competent counsel; (2) the attorney was unable to mitigate the risk of nonpayment in any other way; and (3) use of a multiplier is justified based on factors such as the amount of risk involved, the results obtained, and the type of fee arrangement between attorney and client.”  Bell v. U.S.B. Acquisition Co., 734 So.2d 403, 412 (Fla. 1999) (citing Standard Guaranty Ins. Co. v. Quanstrom, 555 So.2d 828, 834 (Fla. 1990).  However, “[t]he fee agreement in this case was not a true contingency contract.  Instead, it guaranteed payment at a lesser hourly rate, which mitigated the risk of nonpayment, and the evidence showed that [Insured’s counsel] had indeed been paid under the contract.  . . .  A multiplier was not appropriate here, and we reverse on this issue.”   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]

          After an insurance coverage dispute that involved an underlying suit filed in Alabama, the prevailing insured moved for attorney’s fees against the insurer pursuant to F.S. 627.428.  The trial court denied fees relating to the Alabama litigation on the ground that the contingent fee agreement between the insured and its attorneys “did not contemplate payment of attorney’s fees for the defense of [the insured] in the underlying Alabama personal injury lawsuit, which was the subject of this insurance coverage action.”

          The First DCA reversed.  The trial court’s ruling “was in error because [the insurer] had no standing to advance a construction of the contingency fee agreement to which it was neither a party nor a third-party beneficiary.  See Gallagher v. Dupont, 918 So.2d 342, 347 (Fla. 5th DCA 2005) (‘When a contract is designed solely for the benefit of the contracting parties, a third party cannot enforce its provisions even though the third party may derive some incidental or consequential benefit from the enforcement.’).  Because there is nothing in the contingency fee agreement demonstrating any intent to benefit [the insurer], it cannot impose an interpretation of the agreement that runs counter to the intent of the parties to the contract, who agree that they contemplated recovery of attorney’s fees incurred in defending the Alabama tort action.”   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]

          Plaintiff, the personal representative of an estate, hired Lawyer to pursue a negligence claim against Defendants.  Plaintiff’s complaint was filed on February 18, apparently after having already reached a settlement with Defendants.  Two days later, Lawyer petitioned the trial court for approval of a contingent fee contract at a “straight 40% contingency fee.”  Because the case had settled presuit, the maximum fee without court approval was 33 1/3% per Rule 4-1.5(f)(4)(B)(i).  In the petition, Plaintiff “waived any right or opportunity to be heard by the trial court on the petition.”

          The trial court denied the petition without holding a hearing.  The court also denied Plaintiff’s motion for reconsideration, which contained an affidavit signed by Plaintiff “stating that she understood that she was waiving her right to retain counsel at a rate consistent with rule 4-1.5 but that she would not be able to obtain counsel of her choice without this waiver.”

          Plaintiff sought review in the Second DCA, contending that the trial court “departed from the essential requirements of law when it failed to apply the mandatory provision of rule 4-1.5, which requires the court to approve a fee agreement when the client shows that she understands her rights and the terms of the agreement.”  Rule 4-1.5(f)(4)(B)(i) provides that approval of a petition for a fee in excess of the maximum set forth in the rule “shall be given if the court determines the client has a complete understanding of the client's rights and the terms of the proposed contract.”

          The Second DCA upheld the trial court’s denial of the petition, finding nothing in the record indicating that the lower court failed to apply the fee rule.  The trial court never had the opportunity to assess the client’s understanding.  “The circuit court's failure to approve the fee agreement, irrespective of whether we agree with [Lawyer] that the language of rule 4-1.5(f)(4)(B)(ii) mandates approval when the client swears by affidavit that she is aware of her rights and the terms of the agreement, does not amount to a departure from the essential requirements of law on these facts.”

          The appeals court offered guidance to help avoid these types of situations in the future:  “Finally, we emphasize that the rule requires the trial court to determine whether the client understands her right to have the fee limitations in rule 4-1.5(f)(4)(B) applied to her case and that she understands and approves the terms of the proposed contract. We are not persuaded that such a determination could be made without an evidentiary hearing. A waiver of this right in a sworn petition for approval of an attorney fee contract deprives the trial court of the ability to assess the client's competence, understanding, and willingness to waive such a right. The better practice is to present the client before the court to allow the court to assess her understanding of her rights and to confirm that she has made a knowing and intelligent waiver of her rights under the rule.”   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]

          By a 4-3 vote, the Supreme Court denied a motion for appellate attorney’s fees filed by the prevailing parties in the legislative redistricting case.  The Court denied the motion in an order from which 3 justices dissented.

          A week earlier, the First DCA had denied fees to the prevailing parties, applying the “American Rule” by which each party pays its own fees, and declining to adopt the private attorney general doctrine in the case.  League of Women Voters of Florida v. Detzner, __ So.3d __ (Fla. 1st DCA, No. 1D14-5614, 3/24/2016), 2016 WL 1165421.   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]

          Appellants prevailed in a suit regarding legislative redistricting, in which the trial court ruled that two districts were drawn in contravention of Florida Constitution Art. III, Sec. 20.  Appellants moved for attorney’s fees, “alleging entitlement pursuant to the private attorney general doctrine.  While acknowledging that Florida has always followed what has been termed the ‘American Rule,’ under which parties are responsible for their own attorney’s fees unless a statute or contract provides otherwise, Appellants argued that the strong public interest aspect of the case warranted adoption of the private attorney general doctrine and an award of attorney’s fees in their favor.  Appellees argued against the adoption of the doctrine and also contended that Appellants had waived their right to assert a claim for fees by failing to plead a claim for such and by failing to serve the Department of Financial Services with the claim pursuant to” F.S. 284.30.  The trial court denied the fee motion.

          The First DCA affirmed.  After referencing cases from other jurisdictions, the court stated:  “We agree with and adopt the reasoning of those courts that have declined to adopt the private attorney general doctrine. We conclude, as did they, that the policy judgments underlying the doctrine are those that should be made by the legislative branch of government, not the judicial branch."

          Additionally, the appeals court ruled that Appellants had waived any fee claim they might have had.   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]

          A trial court awarded appellate attorney’s fees to Petitioners.  The award, however, did not include prejudgment interest.  Petitioners sought review in the Third DCA.  The appellate court reversed.  “Petitioners are correct that the trial court failed to follow applicable law by not including prejudgment interest in its award of $36,000 in attorneys’ fees.  ‘When calculating interest on attorney's fees, the interest on the award ‘accrues from the date the entitlement to attorney fees is fixed through agreement, arbitration award, or court determination, even though the amount of the award has not yet been determined.''  [Citations omitted.]  Moreover, section 57.105(1) expressly awards prejudgment interest as part of its recovery:  ‘Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party . . . .’”   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]

          Plaintiff sued Defendant alleging medical malpractice.  The complaint did not seek attorney’s fees or punitive damages.  Plaintiff served a proposal for settlement on Defendant “that offered to “resolve all claims the plaintiff has against [the defendant], including, but not limited to, any claims for punitive damages[.]’”  Defendant rejected the proposal.  At trial, Plaintiff got a verdict more than 25% greater that the settlement proposal.

         When Plaintiff moved for fees under F.S. 768.79 and Fla.R.Civ.P. 1.442, Defendant objected that the proposal did not comply with the requirements of rule 1.442 because it failed to state whether fees were part of the legal claim and failed to state whether punitive damages were part of the claim.

          “The trial court recognized the absurdity of requiring the proposal to state whether attorney’s fees and punitive damages were part of the legal claim where the plaintiff had not sought fees or damages in the complaint, nor could she have.  Nonetheless, the trial court recognized that the rule of law as articulated in Diamond Aircraft Industries, Inc. v. Horowitch, 107 So.3d 362, 376 (Fla. 2013), was one of strict compliance and denied the motion.”

          he First DCA affirmed, but certified conflict with the Fourth District’s decision in Bennett v. American Learning Systems of Boca Delray, Inc., 857 So.2d 986 (Fla. 4th DCA 2003).   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]

          In a workers compensation case, the Employer/Carrier (“E/C”) filed a notice of appeal.  The E/C obtained an extension of time to file the initial brief.  E/C “assured” Claimant’s counsel that the brief would be filed by the extended deadline – but it was not.  Under F.S. 440.34(5), Claimant moved for fees “expended in anticipation of receiving and responding to the initial brief.”

          The First DCA granted the motion for appellate fees.  “Ordinarily, entitlement is not established where an appellant files a notice of appeal and soon thereafter seeks dismissal, leaving little doubt about whether the appeal will be pursued.  In sharp contrast, the facts here show that the Appellant received an extension of time for filing its initial brief, missed the extended deadline, and told Appellee’s counsel that the brief was almost done and the he intended to file it.  Even after this Court issued a show cause order, a brief never materialized; instead, a voluntary dismissal was filed.  Under these circumstances, Appellee’s appellate counsel was justified in undertaking typical appellate tasks that required the expenditure of attorney time.”   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]

          During a divorce case the trial court made a lump sum award to Wife of “undifferentiated family support for arrearages not paid during the course of the proceedings.”  Wife’s lawyers sought to impose charging liens on the award.  Wife moved for immediate release of the funds to her.  The general magistrate held a hearing and recommended that the funds be released to Wife.

          The lawyers filed objections and the trial court held a hearing.  The court granted the lawyers’ objections, “finding that the ‘magistrate made a legal error in concluding charging liens do not apply to undifferentiated support arrears’” and granting the charging lien.

          The Fourth DCA reversed.  Relying on Dyer v. Dyer, 438 So.2d 954 (Fla. 4th DCA 1983), Fuqua v. Fuqua, 88 Wash. 2d 100 (1977), and Minor Child of Zentack v. Strong, 614 N.E. 2d 1106 (Ohio App. 1992), the court concluded:  “We agree with the conclusion of these courts, particularly where the award, as in this case, includes only back-due amounts for temporary child support and alimony pending the final judgment, and therefore would not include any amounts other than what was established as the needs and necessities of the spouse and children.”

          (The court further stated:  “Even if the charging lien could have been enforced against that portion of the undifferentiated award which constituted alimony, the magistrate also found that the award was for the necessities of life for the spouse.”)   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]

          Law firm Parrish & Yarnell represented Spruce River, the plaintiff in a long-running real estate dispute.  A defendant moved to disqualify attorney Parrish, and a few months later he moved to withdraw.  Parrish told the court that he “had a conflict of interest but that he could not reveal the details.”  The court granted the motion to withdraw.  About 6 months later Parrish & Yarnell filed a notice asserting a charging and retaining on any proceeds that Spruce River received in the case.  Spruce River moved to strike the charging and retaining lien on various grounds.

          Parrish & Yarnell filed a petition to enforce the charging and retaining lien, stating that Spruce River had received $221,000 pursuant to a agreed stipulation for dismissal of the underlying case and that Spruce River owed the firm $102,000.  Although both the law firm and the former client indicated that an evidentiary hearing would be needed, the court held a hearing at which argument was made but no evidence was presented.  The court granted the motion to strike the lien, “reasoning that Parrish & Yarnell was not entitled to a charging lien because there was no recovery and Attorney Parrish had withdrawn from the case.”

          The Second DCA reversed and remanded for an evidentiary hearing.  “[T]he record shows that the issue of whether Parrish & Yarnell is entitled to a charging and retaining lien turns on several factual questions, such as whether there was a recovery in this case, whether the fee agreement provided for a contingent or hourly fee, whether Attorney Parrish withdrew from the case voluntarily, and whether the allegations of misconduct against Attorney Parrish should effect his entitlement to fees.  The court made factual determinations based on the record before it and addressed the merits of Parrish & Yarnell's claim that it was entitled to a charging and retaining lien – as well as Spruce River's affirmative defenses – without giving the parties the opportunity to present evidence.  This was inappropriate on a motion to strike, where the only issue should have been the legal sufficiency of Parrish & Yarnell's claim to the lien.”   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]

          An action filed by a condominium association against a unit owner for injunctive relief resulted in the association prevailing.  While that appeal was pending, the association sought to hold the unit owner’s daughter in contempt.  A contempt order was entered, but the daughter prevailed on appeal.  The trial court ultimately awarded prevailing party fees to both the association (relating to the injunction proceeding) and to the unit owner and her daughter (relating to the contempt proceeding).

          The association appealed, contending that there can be only one prevailing party in enforcement litigation between a condo association and a unit owner.  “The Association contends that unit owner-association disputes are essentially breach of contract cases subject to the ‘one prevailing party’ rule set forth in Hutchinson v. Hutchinson, 687 So.2d 912 (Fla. 4th DCA 1997).   For this argument, the Association relies upon Khodam v. Escondido Homeowner’s Ass’n, 87 So.3d 65 (Fla. 4th DCA 2012), and Hawkins v. Condominium Owners Ass’n of Sand Cay, Inc., No. 8:10–cv–650–T–30TBM, 2012 WL 4761357 (M.D. Fla. Oct. 5, 2012).”

          The appeals court rejected this argument.  “[B]oth of these cases were initiated by unit owners as breach of contract cases.  Neither case involved an injunction action or multiple claims arising from separate facts.  More on point are cases holding that each prevailing party on separate and distinct claims between a unit owner and an association may be entitled to an award of attorney’s fees in connection with that claim.  See Welleby Condo. Ass’n One, Inc. v. Brown, 561 So.2d 7 (Fla. 4th DCA 1990); Park Lane Condo. Ass’n v. DePadua, 558 So.2d 85 (Fla. 1st DCA 1990).”   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 ontingent fee contract.  [Added 12/22/15]

          Lawyer was retained by a ward’s guardian to pursue recovery for a serious injury suffered by the ward after a fall from a second floor balcony while conducting a home inspection.  The contingent fee agreement was approved by the court.  Ultimately Lawyer negotiated settlements with 3 defendants totaling $2.5 million.

          When the guardian and the ward repudiated the settlement, the defendants moved to enforce it.  A prior counsel for the guardian had negotiated a settlement with 2 of the defendants for less than the amount that Lawyer was able to obtain.  “In spite of disavowing the original settlement, the guardian took the position that [Lawyer] was only entitled to a contingency fee based on the amount he obtained that exceeded the amount of the original settlement.  After an evidentiary hearing, the trial court agreed with the guardian and ruled against [Lawyer].”

           The Second DCA reversed.  “The guardian's argument is flawed in several respects.  First, it is contradicted by the language of the fee agreement which plainly requires a fee based on the “gross recovery.”  Second, the guardian's argument that the fee is excessive is premised on the contention that there were two valid settlements, only one of which came through [Lawyer]'s efforts.  This is inconsistent with the guardian's position throughout the proceedings below that there was no enforceable settlement.”   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]

          Cajusma was insured by Explorer under an auto policy.  Cajusma and his passengers, Philogene and Pade, were injured in a accident and sought treatment.  When Explorer denied claims by persons in the vehicle that collided with Cajusma’s, those persons sued Cajusma.  Explorer filed a declaratory judgment action seeking to be relieved from paying benefits and providing liability coverage.  Cajusma then sued Explorer for breach of contract.  That matter settled.

          In the still-pending dec action, Cajusma and Pade filed motions for summary judgment seeking fees and costs under F.S. 627.428.  At the hearing, Explorer moved to dismiss the dec action and the court granted the motion.  The court then awarded fees to Cajusma and Pade.  Explorer appealed.

       The Fifth DCA affirmed the award to the insured, Cajusma.  As in O’Malley v. Nationwide Ins. Co., 890 SO.2d 1163 (Fla. 4th DCA 2003), “Cajuma received a benefit and was entitled to recover his attorney fees and costs upon Explorer’s dismissal of its declaratory judgment suit.”

          The appeals court, however, reversed the fee award to Pade.  Unlike Cajusma, “Pade did not receive a recovery or any other benefit, did not receive a defense from Explorer, and Explorer did not pay anyone on behalf of Pade.  Accordingly, Pade was not entitled to recover statutory attorney’s fees and costs.”   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]

          Eighty-two year old Anderson was injured in a altercation with a security guard and sued the security company (“50 State”).  Anderson was represented by attorney Carbonell.  Her fee agreement with Carbonell specifically provided that, if additional lawyers were associated on the case, “[a] new fee contract, which includes the new attorneys, will be executed.”  Several months later attorney Allen was hired as co-counsel.  Anderson and her son, who was represented by Allen pro bono in an unrelated matter, signed a contingent fee agreement with Allen.  The original fee agreement between Anderson and Carbonell was never modified or terminated, nor did it “otherwise specify an allocation of responsibility or fees in the case against 50 State.”  Both lawyers worked on the case.

          The case settled at mediation.  Carbonell moved to have the full 40% contingent fee paid to him, with no payment to Allen.  The trial court granted the motion, holding “that it was Allen’s responsibility to have obtained a written arrangement with Carbonell before entering the case as co-counsel and performing services.”  Allen appealed.

          The Second DCA affirmed, “because Allen’s second 40% contingency would not adhere to the Rules Regulating The Florida Bar and would be unenforceable.  Chandris, S.A. v. Yanakakis, 668 So.2d 180, 186 (Fla.1995).  Rule 4–1.5(f)(4)(D) of those Rules contemplates a division of contingency fees when there are attorneys from separate firms, but it is incumbent on the lawyers to come to an agreement for that allocation and to obtain client and court consent before the fees are disbursed.  The comments to Rule 4–1.5 provide guidance regarding that process.”

          The court further noted, however, that “there is authority” for a separate quantum meruit claim by Allen, “an attorney providing services but lacking a contingent fee agreement,” directly against Carbonell.  See Lackey v. Bridgestone/Firestone, Inc., 855 So.2d 1186 (Fla. 3d DCA 2003).   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]

          Fee awards to landowners in eminent domain cases are governed by F.S. 73.092.  Section (1) provides for fees to be awarded on the basis of “benefits achieved for the client” as defined in the statute.  Section (2) sets out other factors to be considered by the court in awarding fees.

          Landowners engaged in eminent domain litigation with Condemning Authority.  The Authority engaged in tactics that caused Landowners to incur additional attorney’s fees.  Authority sought to limit the fee award to that calculated under section (1).  Landowners argued that they were entitled to fees under section (2), “which requires a trial court to consider qualitative and quantitative factors in determining the amount of a fee award.”

          Ultimately, the trial court held that section (1) was unconstitutional as applied and awarded Landowners fees of $816,000 using factors listed in sections (2) and (3).  The Fifth DCA reversed, limiting the fee to that called for under section (1).  The appeals court also certified a question to the Supreme Court.  Orlando/Orange County Expressway v. Tuscan Ridge, LLC (Tuscan Ridge II), 137 So.3d 1154 (Fla. 5th DCA 2014).

          The Supreme Court rephrased the certified question as:  "IN AN EMINENT DOMAIN PROCEEDING, WHEN THE CONDEMNING AUTHORITY ENGAGES IN TACTICS THAT CAUSE EXCESSIVE LITIGATION, IS THE BENEFITS ACHIEVED FORMULA IN SECTION 73.092(1), FLORIDA STATUTES, UNCONSTITUTIONAL AS APPLIED TO CALCULATE ATTORNEY’S FEES FOR THE HOURS INCURRED IN DEFENDING AGAINST THE EXCESSIVE LITIGATION?"

          The Court quashed the Fifth DCA’s decision and remanded for an evidentiary hearing before the trial court “to determine the total attorney’s fees based on both the benefit and the portion of the work attributable to the excessive litigation and actions.”  The Court concluded:  “[W]e answer the rephrased certified question in the affirmative.  We hold that when a condemning authority engages in tactics that cause excessive litigation, section 73.092(2) shall be used separately and additionally to calculate a reasonable attorney’s fee for the hours expended which are attributable to defending against the excessive litigation or actions.  This will result in an amount that must be added to the remainder of the fee calculated utilizing the benefits achieved formula delineated in section 73.092(1).  This is a two-step process that results in a total fee that is based both on benefit and any excessive litigation.”   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]

          The Florida Department of Transportation (“DOT”) anticipated a future need to acquire a certain parcel of property for a road project.  DOT offered to buy the property under its “Early Acquisition Program” (“EAP”), which offers “property owners the opportunity, without any obligation, to sell their property to DOT prior to any formal agency decision being made to initiate eminent domain proceedings.”  In 2005 DOT made an EAP offered the property owner $400,000 for the parcel.  No agreement was reached.
          In 2013 DOT initiated eminent domain proceedings to acquire the parcel.  DOT’s first offer was $699,000, which was rejected.  Ultimately the judgment awarded $800,000 for the parcel.

          The property owner sought an award of fees under F.S. 73.092, using the statute’s “benefits achieved” standard.  The property owner claimed that the EAP offer amount of $400,000 should be used as the basis for fees, while DOT asserted that the proper amount to use was $699,000.  The trial court agreed with DOT.

          The Fourth DCA affirmed because “(1) DOT made the 2005 offer in an attempt to acquire the property as a voluntary acquisition and (2) DOT expressly conditioned that offer as not being usable in calculating attorney’s fees if an eminent domain proceeding was subsequently necessary.”   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]

          Insureds filed a claim for a property damage loss relating to a broken plumbing system.  Insurer paid about $28,000.  Insureds filed suit, alleging their loss was more than $330,000.  Insurer counterclaimed for fraud and unjust enrichment.  The jury found for Insurer on Insureds’ breach of contract claim, but found for Insureds on Insurer’s unjust enrichment counterclaim.  The trial court awarded attorney’s fees to Insureds under F.S. 627.428(1).  Insurer appealed.

          The Third DCA affirmed.  “A judgment was entered in favor of [Insureds] on [Insurer’s] counterclaim, satisfying the provisions of section 627.428(1) that there be a ‘rendition of a judgment . . . against an insurer and in favor of any . . . insured . . . under a policy or contract executed by the insurer. . . .’  [Insureds were] therefore entitled to attorney’s fees for the successful defense of, and favorable judgment on, [Insurer’s] counterclaim, and the trial court properly awarded attorney’s fees and costs to [Insureds].”

          Insurer argued that applying section 627.428 to award fees to Insureds was against public policy “because such an award of fees is contrary to public policy, namely: (1) Florida’s public policy against material misrepresentations during the claims process; and (2) the public policy behind section 627.428, which is to discourage insurers from contesting valid claims.”  The court was constrained to reject that argument:  “This Court has already spoken to this issue and has made clear that ‘we believe that modification of [section 627.428] to address false statements by an insured is best left to the legislature.’  Mercury Ins. Co. of Fla. v. Cooper, 919 So.2d 491, 493 (Fla. 3d DCA 2005).  [Insurer] seeks the very same remedy requested by the appellant in Cooper and rejected by our opinion in that case:  ‘a judicially crafted exemption to section 627.428(1) in cases where there is insurance fraud.’  Id.  While [Insurer’s] argument may be persuasive to support a change in this area of the law (to allow for a fraud exception), we reaffirm that such a change must be effectuated legislatively, not judicially.”   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]

          In a dissolution of marriage action, Former Wife moved for attorney’s fees.  At evidentiary hearings Former Wife presented testimony of an attorney’s fee expert to support the reasonableness of the claimed fees and testimony of the records custodian in her lawyer’s law firm to authenticate the lawyer’s time sheets.  The trial court denied fees, agreeing with Former Husband’s contention that the evidence was insufficient because the lawyer who actually performed the legal services failed to testify.

          The Third DCA reversed.  “Florida law requires a party seeking attorney’s fees to provide proof (a) ‘detailing the nature and extent of the services performed and … [(b)] expert testimony regarding the reasonableness of the fees.’  [Citations omitted.]  Where a party has provided sufficient, admissible proof of these two components, no court has further mandated direct testimony from the attorney who performed the services.”   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]

          Law Firm had an ongoing relationship with Client, often working on multiple matters at a time.  One matter (the “URGOS matter”) involved a federal maritime case.  Client occurred fees of $47,837 prior to settlement of that case.  A second matter involved a piece of real property (the “TDL property”).  In this matter, Client’s sister was seeking to foreclose on a mortgage and force a sale of the TDL property.

          Concerned about getting paid for its work on the URGOS matter, in March 2007 Law Firm had Client sign a letter agreeing to pay Law Firm the fees owed from the URGOS matter “at the closing of the [TDL] property.”  In October 2007 Client entered into a contract to sell the TDL property.  In February 2008 Client fired Law Firm.  In September 2008 the sale of the TDL property fell through.

          Two years later Law Firm learned that Client’s sister had sold her interest in the TDL property for a substantial sum.  Law Firm sued Client for its fees.  The trial court entered judgment for Law Firm.  Client appealed.

          The Fourth DCA affirmed.  Client contended that “because the only terms discussed in the letter were the amounts owed and a triggering event for payment, the agreement constituted a contingency fee arrangement” – and, because the contingency never occurred, no fees were due Law Firm.  The court rejected this argument.

          The letter agreement signed by Client was not a contingency fee agreement.  The “letter was drafted solely to memorialize the amounts that were already due and owed to the law firm in order to assure [Client] agreed to those amounts before further legal services continued.  At the time [Client] incurred the fees memorialized in the letter, there was no consideration by the parties that payment of the fees depended on some successful action by the law firm.”  The appeals court explained:  “A contingency fee arrangement occurs when a law firm does not bill or expect payment until and unless the contingency is achieved.  Contingency fee arrangements are typically contingent upon a successful outcome.  See R. Regulating Fla. Bar 4-1.5(f)(1) (‘A fee may be contingent on the outcome of the matter for which the service is rendered.’).  Here, the law firm already had performed legal services for which it clearly expected to receive payment, regardless of the outcome of the case or any other contingency.  Therefore, the trial court properly concluded that the March 1, 2007 letter was not a contingency fee agreement and was instead an admission by [Client] for legal fees already owed.  Accordingly, we affirm the award of attorneys’ fees.”   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]

          Collection agency HFC, alleging that it was the assignee of a credit card agreement, sued Alexander.  Alexander admitted that she had an agreement with the original credit card company, but denied that she signed the copy of the credit card agreement attached to HFC’s complaint.  Alexander contended that HFC lacked standing to enforce the contract between her and the credit card company.  The county court granted summary judgment for Alexander.

          The county court also granted Alexander’s motion for attorney’s fees under the reciprocal provisions of F.S. 57.105(7).  HFC appealed.  The circuit court, acting in its appellate capacity, affirmed.  The court “also found that HFC was estopped from challenging the award of attorney fees by arguing that no contract existed between it and Alexander.”  Alexander then petitioned  the Fifth DCA for second-tier certiorari review.

          The Fifth DCA quashed the attorney’s fee order.  In affirming, the circuit court “applied the wrong law.”  The absence of a contract between the parties meant that Alexander cannot employ section 57.105(7) to enforce the attorney's fees provision of the credit card agreement against HFC, after proving that HFC never became a party to that contract.”

          The circuit court’s reliance on estoppel was also incorrect.  “HFC did not successfully maintain that there was a contract between it and Alexander, and thus HFC is ‘not estopped from thereafter maintaining that since there is no contract, no attorneys’ fees can be awarded.’”  (Emphasis by court; citation omitted.)   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]

          Lawyer represented Claimant in a workers’ compensation case.  Lawyer moved for attorney’s fees and costs.  The Employer/Carrier (“E/C”) filed a response, but it was untimely.  Lawyer moved to strike the response, but the Judge of Compensation Claims (“JCC”) denied the motion.  The JCC then reduced the amount of fees claimed by Lawyer.  Lawyer appealed.

          The First DCA reversed.  The E/C excuse for the late filing was that its assistant failed to file the response with the court or serve it on Lawyer, and instead just placed it in the E/C’s file.  Citing 3 recent cases, the First DCA concluded that the E/C had not demonstrated the required “good cause” for its untimely filing.  “Mere inadvertence” does not equate to “good cause,” and so the JCC erred in denying the motion to strike.  Consequently, the JCC “had no discretion to reduce the amount of [Lawyer]’s legally sufficient claim for attorney’s fees and costs.”   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]

          The Florida Department of Revenue (“DOR”) informed Lopez that he had been accused of fathering a woman’s child.  Lopez denied paternity, stating that he did not even know the mother.  DOR filed a motion to establish paternity and served it on Lopez.  The purported father had the same first and last names as Lopez, but had a different middle initial.  “DOR had misidentified Lopez.”

          On March 7, 2012, Lopez’s counsel sent DOR a letter and attached a motion for attorney’s fees pursuant to F.S. 57.105.  Lopez did not file the 57.105 motion at that time.  After the statutory 21-day “safe harbor” period expired, Lopez filed the 57.105 motion on April 13, 2012.  The certificate of service filed with the court, however, indicated “that Lopez mailed the copy of the motion to DOR on April 10, 2012.”

          The general magistrate held a hearing on the 57.105 motion and found for Lopez, concluding that he was entitled to $4257 in fees.  The magistrate “specifically found that DOR had failed to conduct due diligence prior to serving Lopez with DOR’s petition, and further found that DOR had not acted in good faith in continuing to prosecute its paternity action against Lopez.”  DOR filed exceptions and a motion to vacate.  The trial court granted DOR’s exceptions and denied Lopez’s motion (and another of his motions seeking fees for defending against the exceptions).

          The Third DCA reversed.  DOR argued that Lopez had failed to comply with the 21-day safe harbor provision of F.S. 57.105.  DOR relied on the certificate of service, which showed April 10.  The court rejected this contention:  “In this instance, however, when a document is both (i) served before it is filed, and (ii) served again contemporaneously with its filing, nothing precludes a discrete inquiry as to whether the document, in fact, was served twice.  Ample evidence supported the general magistrate’s conclusion that Lopez’s 57.105 Motion was enclosed with Lopez’s March 7th letter, despite having been served a second time contemporaneously with its filing.”  (Footnote omitted.)

          The court also agreed that Lopez was entitled to fees incurred in defending against DOR’s exceptions.  “DOR’s Exceptions simply continue the parties’ dispute. Because DOR’s Exceptions were inextricably intertwined with Lopez’s 57.105 Motion, it was not necessary for Lopez to serve and file a separate 57.105 motion in order to obtain fees in defending the general magistrate’s Report and Recommendations on the exact same 57.105 Motion Lopez had previously served and filed.”   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]

          Plaintiff sued Defendant after an auto accident.  Defendant served a proposal for settlement, which Plaintiff did not accept.  One of the conditions in the proposal was that Plaintiff execute a release for all claims against Defendant arising from the accident.  A release was attached to the proposal; however, the proposal further stated that “Defendant is willing to consider any suggested changes to the release.”

          Following trial, Defendant moved for fees and costs pursuant to the terms of the proposal and F.S. 768.79 (the offer of judgment statute).  The trial court granted Plaintiff’s motion to strike the proposal, ruling that the proposal was ambiguous and unenforceable because of the language indicating that Defendant would consider changes to the release.  Defendant appealed.

          The Fifth DCA reversed.  The proposal was not ambiguous.  After distinguishing the cases relied upon by the trial court, the appeals court stated:  “Generally, proposals for settlement are unenforceable only where an existing ambiguity ‘creates a necessity for interpretation or a choice among two or more possible meanings’ – rather than potential ambiguities that might occur in future revisions of the proposals.  . . .  No case suggests that the mere offer to negotiate terms of an otherwise-acceptable settlement proposal – or an attached general release – renders the proposal unenforceably vague.”   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]

          Plaintiff, the subcontractor on a building project, sued 5 defendants, including the general contractor and Seaside.  The same law firm represented all 5 defendants.  Each defendant served a proposal for settlement on Plaintiff.  None were accepted.  The trial court entered a judgment against the general contractor but found no liability for Seaside.  Seaside moved for fees based on its proposal for settlement.  The court denied fees, “basing its ruling in part on the testimony of Seaside’s attorney . . . that the attorney’s fees ‘were billed to and paid by or on behalf of [the general contractor] pursuant to an indemnification agreement between Seaside and [the general contractor]” and the fact that the defendants’ lawyer, “while advocating for [other defendants], made arguments adverse to” Seaside.  The court, however, made no findings that Seaside’s offer was made in bad faith.

          The Third DCA reversed.  “[T]he trial court denied Seaside’s entitlement to attorney’s fees without finding that Seaside’s proposal was not made in good faith.  Instead, its ruling was based on the fact that a co-defendant was legally responsible for Seaside’s attorney’s fees, and on its finding that in representing this co-defendant, the law firm seeking fees made arguments contrary to Seaside’s position.  The fact that another party or a nonparty may have paid the offeror’s attorney’s fees is of no consequence to the question of whether the offeror is entitled to fees and costs pursuant to the offer of judgment statute or rule.”   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]

          In a dissolution case, Wife sought to have a prenuptial agreement declared invalid.  The trial was bifurcated.  After the conclusion of the first part, the judge entered an order upholding the agreement and interpreting it.  Both parties moved for attorneys’ fees.  Husband’s motion was based on a provision in the prenuptial agreement that stated that “the party seeking to avoid the terms of this agreement shall be liable for all of the attorneys [sic] fees and costs incurred by the other party.”  The judge “denied both parties’ requests for fees, finding the husband prevailed on validity and the wife prevailed on interpretation.”

          The Fourth DCA reversed.  “The Florida Supreme Court has held that ‘prenuptial agreement provisions awarding attorney’s fees and costs to the prevailing party in litigation regarding the validity and enforceability of a prenuptial agreement are enforceable.’  Lashkajani v. Lashkajani, 911 So.2d 1154, 1160 (Fla. 2005).  Any such provisions control the issue of fees in a dissolution case over the parameters of section 61.16, subject to the limitations of disclosure outlined in Florida case law.”  Wife sought to void the agreement, but the trial court upheld it.  “The clear, unambiguous terms of the agreement do not provide for an award of fees to the party prevailing on the ‘interpretation’ of the agreement.  Thus, the husband, as the prevailing party in the wife’s action ‘seeking to void this agreement’ was entitled to an award of fees against the wife who was ‘the party seeking to avoid the terms of this agreement.’”   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]

           Two law firms sued another law firm over a dispute arising from a fee-division agreement.  Each plaintiff served a proposal for settlement on the defendant firm, which included an exhibit titled “Mutual Release.”  After a favorable judgment, the plaintiffs moved for attorney’s fees pursuant to the rejected proposal for settlement.  The defendant firm argued that the proposals were ambiguous because “the language contained in each mutual release, specifically identifying each individual attorney within the firms involved, contradicted that portion of the proposal for settlement that identified each proposal’s offeror and offeree.”  The trial court agreed, ruling that “the inclusion of the names of the individual attorneys in the mutual releases’ prefatory language created an ambiguity that rendered each proposal for settlement unenforceable.”  The plaintiffs appealed.

          The Third DCA reversed, stating that the case was controlled by Jessla Construction Corp. v. Miami-Dade County School Board, 48 So.3d 127 (Fla. 3d DCA 2010).  “In Jessla, we concluded that a proposal for settlement conditioned upon the execution of a standard release identifying typical affiliates of a party does not create an ambiguity rendering the proposal for settlement unenforceable.  Id. at 130.  In other words, the inclusion of these non-parties as releasees created no inconsistency between the releasee and the offeree identified in the body of the proposal for settlement.  Id.”  The fact that the release specifically identified persons who were employees or shareholders of the parties “in no way creates an ambiguity, broadens the scope of the mutual releases, or contradicts to whom the proposals are being made.”  The court further noted that the defendant was “unable to suggest how the inclusion of the names of the individual attorneys might confuse the parties executing mutual releases.”   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]

          Plaintiff prevailed in a negligence case against 2 defendants.  Plaintiff moved for attorneys’ fees pursuant to F.S. 768.79 and Fla.R.Civ.P. 1.442.  Plaintiff had served Defendants with identical offers of judgment that proposed to settle all of the claims for one lump sum.  Defendants contended that the offers “were invalid because they failed to 'state whether the proposal includes attorneys’ fees and whether attorneys’ fees are part of the legal claim' as required by [Fla.R.Civ.P.] 1.442(c)(2)(F).  The trial court granted the motion, concluding that the failure to include the attorneys’ fees language did not create an ambiguity in this case because [Plaintiff] never sought attorneys’ fees in her complaint.”  Defendants appealed.

          The First DCA reversed.  Offers of judgment must strictly comply with the statute and rule.  In this case, Plaintiff “failed to strictly comply with rule 1.442(c)(2)(F) when she failed to state in the offers of judgment whether the offers included attorneys’ fees and whether attorneys’ fees were part of the legal claim.”

          The court explained:  “In a case where the plaintiff sought attorney’s fees in the complaint, the supreme court held that an offer of judgment failed to strictly comply with rule 1.442(c)(2)(F) because it did not state that the offer included attorneys’ fees and whether attorneys’ fees were part of the legal claim.  Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362, 377 (Fla. 2013).  In light of the fact that ‘the supreme court has made the test strict compliance, not the absence of ambiguity,’ R.J. Reynolds Tobacco v. Ward, 141 So.3d 236, 238 (Fla. 1st DCA 2014), we can see no reason why this holding would not apply equally to a case where attorneys’ fees were not sought in the complaint.”

          The First DCA certified conflict with the Fourth DCA’s decision in Bennett v. American Learning Systems of Boca Delray, Inc., 857 So.2d 986 (Fla. 4th DCA 2003).   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]
          Law Firm represented Condominium Association.  When the Association’s board of directors changed members, the Association hired new counsel.  Law Firm asserted retaining liens over its files in 5 matters.  The Association filed suit seeking access to the files.  “Following a five minute motion calendar hearing at which no testimony was taken and during which the parties disputed that the law firm had been paid, the court below entered an order granting immediate access to all of the files being held by the firm.”  Law Firm petitioned for certiorari review.
          The First DCA granted the petition and quashed the trial court’s order.  Citing case law, the appellate court stated:  “It is well established that in this state an attorney has a right to a retaining lien on all of the client’s property in the attorney’s possession, whether related to only one specific matter, until the attorney is paid . . .”  A law firm asserting a valid retaining lien may retain the property in question until it has been paid “or, if the if the client can demonstrate a pressing need for the property, until adequate security for the payment has been posted.  Here, however, the trial court made no determination regarding the validity of Law Firm’s retainer agreements or its retaining liens, nor did it determine whether the firm was paid.  “[A]bsent such determinations, no order compelling the law firm to hand over its files may be entered without the requisite showing of pressing necessity and the posting of adequate security.  Anything less amounts to a departure from the essential requirements of the law which will cause irreparable harm by nullifying the law firm’s retaining liens.”   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]

          In a divorce case, the trial court adopted the parties’ agreement as to equitable distribution of marital property.  The court awarded Former Wife alimony of $2100 per month for 12 years.  The alimony award had the effect of equalizing the parties’ incomes.  The court also ordered that Former Husband pay $6000 of Former Wife’s attorney’s fees.  Former Husband appealed.

          The First DCA reversed the fee award, citing Galligar v. Galligar, 77 So.3d 808 (Fla. 1st DCA 2011).  “Where marital property has been equitably distributed and the parties’ incomes have been equalized through an alimony award, the trial court abuses its discretion by awarding attorney’s fees.”   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]

          Insurer Safeco issued payment and performance bonds in connection with a construction project.  The general contractor (“DooleyMack”) was named as principal and the owner and developer (“Victoria”) was named as an obligee.  Claiming that it was owed money, another subcontractor (“Aspen”) served DooleyMack and Safeco with a notice of claim on the bond.

          Safeco filed suit against Aspen in federal court.  Aspen filed a counterclaim.  Safeco, Aspen, and DooleyMack entered a tolling agreement under which Safeco agreed to dismiss its suit.  Despite the fact that the tolling agreement specified that any further litigation would be filed in federal court, Aspen sued Safeco and DooleyMack in state court.  Ultimately the state trial court dismissed Aspen’s complaint, ruling that it should have been filed in federal court.  Aspen appealed.  The Third DCA affirmed.

          In Section III of its initial brief, however, Aspen “asserted that Safeco’s counsel made misleading statements to the trial court at the hearing on the Motion to Dismiss.”  Specifically, Aspen alleged that Safeco’s counsel made statements that “ misled the trial court about the substance and status of the ‘Parallel Action’ [another state court case involving the construction project].”  Safeco complied with the safe harbor provisions of F.S. 57.105 and Fla.R.App.P. 9.140, but Aspen declined to withdraw the offending statements in Section III of its brief.  Safeco filed a motion for sanctions with the Third DCA.
The appellate court granted the motion and imposed sanctions.  The statements were supported by documentation and correspondence between the parties, and so Aspen’s claims in its brief were wholly without factual or legal support.  The statements were frivolous under the standard set forth in Visoly v. Sec. Pac. Credit Corp., 768 So.2d 482, 490 (Fla. 3d DCA 2000).   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 served a proposal for settlement on The Namm Group.  Namm timely filed a motion for extension of time to accept the settlement proposal.  Three Lions did not agree to an extension.  Namm took no steps to have the motion heard.

          More than 3 months later, Namm attempted to accept the settlement proposal.  Three Lions responded by informing Namm that the purported acceptance was untimely.  Namm voluntarily dismissed the suit.  Within 30 days after the voluntary dismissal, Three Lions moved for fees and costs pursuant to its proposal for settlement.  The trial court denied the motion.  Three Lions appealed.

          The Third DCA reversed, “because Namm’s Motion for Extension of Time to Accept Settlement Proposal was ineffective to toll the time for acceptance of the proposal, where Three Lions did not agree to the extension and Namm did not obtain a hearing on the motion prior to the expiration of the time for acceptance of the Proposal.”   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]

          Law Firm agreed to represent Clients in a contingent fee medical malpractice case arising from a catastrophic brain injury sustained at birth.  The jury returned a verdict for about $30 million.  Due to sovereign immunity, the judgment against the defendant hospital was limited to $200,000.  Law Firm pursued a claims bill in the Florida Legislature.  The legislature passed a $10 million bill, but limited the amount of additional attorneys’ fees to $100,000.

          Law Firm, along with various others who worked on the case with the Firm, filed a petition with 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.

          The appeals court stated that it was “sympathetic to the fact that the legislatively enacted attorneys’ fees cap in this case failed to cover even the $500,000 in Appellants’ costs advanced by [Law Firm] during their representation of [Clients].  But our responsibility in this matter is to ensure that the claims bill passed by the legislative branch of government meets constitutional muster.  As noted above, the Florida Supreme Court, in no uncertain terms, has held that the limitation of attorneys’ fees in a private relief act/claims bill ‘is a constitutionally permissible exercise of legislative authority and does not constitute an impairment of contractual obligations proscribed by article I, section 10 of the Florida Constitution.’  Gamble [v. Wells], 450 So.2d [850 (Fla. 1984)] at 851; see also Ingraham [v. Dade County School Board], 450 So.2d [847 (Fla. 1984)] at 849.”

          The court also rejected Law Firm’s contentions that the $100,000 limitation violated the separation of powers doctrine, was an unconstitutional taking, a violation of the due process clause, or a denial of equal protection.

           One judge concurred specially with an opinion.  One judge dissented in a lengthy opinion.The Fourth DCA rejects a law firm’s contention that a $100,000 fee a claims bill of $10 million for its client was an unconstitutional impairment of the attorney-client contractSearcy 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]

          A loan between sisters ended up in litigation.  The loan was secured by a mortgage on real property.  Plaintiffs sued to foreclose, adding a civil RICO (Racketeer Influenced and Corrupt Organizations) count.  In September 2012 Defendants sent a letter to Plaintiffs claiming that the foreclosure count was premature because the note had not yet become fully due, and enclosed a check for the amount of the note (it did not include the amount claimed as late charges).

          Litigation continued.  In January 2013 Defendants filed a motion for sanctions under F.S. 57.105 as to the RICO count.  In May 2013 Plaintiffs filed a notice of voluntary dismissal with prejudice on all counts.

          At the hearing on Defendants’ fee motion, Defendants argued that they were the prevailing party since the litigation ended in a voluntary dismissal of the complaint.  Plaintiffs countered by arguing that they were the prevailing party because Defendants responded to the suit by paying the amount owed.  The trial court granted Defendants’ motion for prevailing party fees.

          The Fourth DCA reversed.  Although prevailing party fees generally are awarded against the party that filed the voluntary dismissal, this rule is not automatic.  See Padow v. Knollowood Club Ass’n, 839 So.2d 744 (Fla. 4th DCA 2003).  “The exception to the general rule discussed in Padow applies to this case.  Two of the three counts that [Plaintiffs] filed against the [Defendants] were for the amount that the {Defendants] owed on the note, with one of the counts seeking foreclosure.  . . .  [Plaintiffs] clearly recovered the majority of what it sought by filing suit.  Having received most of what it sought, [Plaintiffs] dismissed all three counts, bringing litigation to an end.  The trial court improperly awarded prevailing attorney’s fees in this case.”   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]

          Wife sued an owner and a driver of a car after a collision.  Wife’s Husband asserted a loss of consortium claim.  Defendants served a proposal for settlement on Wife that offered to pay $58,590 “in ‘an attempt to resolve all claims and causes of action resulting from the incident or accident giving rise to this lawsuit brought by Plaintiff [Wife] against Defendant [].’”  Wife did not accept the offer, but recovered only $17,955 at trial.  Defendants moved for fees under F.S. 768.79 and Fla.R.Civ.P. 1.442.  The court denied the motion, reasoning that the proposal was deficient for, inter alia, (1) failing to address Husband’s consortium claim and (2) failing to apportion the amounts between the 2 defendants, one of whom (the owner) was only vicariously liable.  The Second DCA reversed.

          Regarding the consortium claim, the court stated:  “[T]he rule requires that a proposal identify the claims it is ‘attempting to resolve,’ not every claim related to the suit brought by either plaintiff.  Although the loss of consortium claim was pending against the [Defendants] at the time of the proposal, that claim was not affected by the proposal for settlement because it was [Husband]’s separate and distinct claim, despite its derivative nature.  . . .  [Husband] was still free to pursue his loss of consortium claim even if [Wife] accepted the proposal because it would only dismiss her claims; the proposal required no action or input on the part of [Husband] whatsoever because his cause of action was his own.  . . .  Because the proposal explicitly stated that it was to cover all claims brought by [Wife], it was not deficient for failing to address the other pending claim in the lawsuit brought entirely by a different plaintiff.

          As to the apportionment issue, the court stated:  “[T]he proposal did not need to apportion any amount attributable to [the car owner] despite the fact that the proposal required [Wife] to dismiss her claims against him because he was solely vicariously liable.”  The court distinguished Audiffred v. Arnold, 161 So.3d 1274 (Fla. 2015), on the basis that Audiffred concerned a prior version of Fla.R.Civ.P. 1.442.  The rule was amended effective 2011.  The relevant subsection now “provides ‘when a party is alleged to be solely vicariously . . . liable . . . a joint proposal made by or served on such a party need not state the apportionment or contributions as to that party.’  Fla. R. Civ. P. 1.442(c)(4).  Therefore, while [Defendants’] proposal was a joint one, because [the owner] was solely vicariously liable no apportionment was necessary.”   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]

          Claimant filed a petition for workers’ compensation benefits (“PBF”) in April 2014, which was more than 2 years after the date of injury and more than 1 year after the last provision of medical or disability benefits.  Accordingly, the Judge of Compensation Claims (“JCC”) denied the PFB as barred by the statute of limitations in F.S. 440.19.

          Claimant appealed, contending that the statute of limitations was tolled because the PFB was filed within 1 year after the JCC dismissed a prior petition for benefits and ordered the employer/carrier to pay an attorney’s fee to Claimant’s counsel.

          The First DCA affirmed.  “[T]he narrow question presented in this case is whether the payment of attorney’s fees to Claimant’s counsel – with no other medical or disability benefits being paid simultaneously to Claimant and no PFBs pending – is sufficient to extend the statute of limitations under subsection 440.19(2).”  The court answered in the negative, rejecting Claimant’s contention “because it is well-settled that the payment of an attorney’s fee is neither a payment of compensation nor the furnishing of medical treatment – the only two events that will extend the statute of limitations under subsection 440.19(2).  Specifically, this court determined in Houston-Miller v. U.S. Fire Insurance, 668 So.2d 653, 653-54 (Fla. 1st DCA 1996), that for purposes of determining whether the statute of limitations ran, ‘payment of an attorney’s fee to the claimant’s attorney is not the ‘payment of compensation’ within the meaning of section 440.19(1)(b), Florida Statutes (1985).’”   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]

          Lawyer represented Clients in a condo association dispute.  Lawyer withdrew and filed a notice of charging lien.  At a hearing on the charging lien, Lawyer relied on the exhibits attached to his motion to enforce the lien.  “Both parties, as well as the trial court, referred to the exhibits during the hearing.  Notably, however, neither the actual attorneys who performed the work in [Clients’] case nor a fee expert testified at the hearing.”  The court entered an order imposing the charging lien in the amount of $8463.18, but “made no findings as to the reasonable hourly rate or the amount of hours reasonably expended.”

          Clients appealed.  The Fourth DCA affirmed as to Lawyer’s entitlement to the charging lien, but concluded that “the evidence was insufficient to establish the amount of fees.”  The court remanded “for the trial court to conduct an evidentiary hearing on the issue of the amount of fees and costs due on the charging lien, and to thereafter enter an order containing the necessary findings and conclusions based upon such evidence.”   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]

          In a guardianship matter, the trial court awarded fees as a sanction against Appellants, who had received confidential information that was inadvertently sent to their lawyer.  The trial court made no findings of bad faith against Appellants or their lawyer.

          The Third DCA reversed.  Citing Moakley v. Smallwood, 826 So.2d 221 (Fla. 2002), the appeals court pointed out that a fee sanction imposed under a court’s inherent power may be imposed but must be supported by express findings of bad faith.  In this case, no findings of bad faith were made.

          The appeals court rejected Appellee’s argument “that that Moakley only requires a finding of bad faith when the award of attorney’s fees is against counsel, rather than against a party.  [Appellee] points to language in Moakley expressing a concern for ‘ensuring that attorneys will not be deterred from pursuing lawful claims, issues, or defenses on behalf of their clients,’ Id. at 226-27, as support for his argument.  We disagree.  As the Fourth District Court of Appeal held in T/F Systems, Inc. v. Malt, 814 So.2d 511, 513 (Fla. 4th DCA 2002), ‘[a]lthough Moakley involved the imposition of fees against an attorney, the procedures described in the case are  equally applicable to the assessment of fees against a party.’  Thus, the trial court’s failure to make specific findings regarding bad faith conduct as to each party or attorney against sanctions are to be imposed requires reversal.”   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[

          Lawyer represented Wife in a divorce case.  Lawyer withdrew from the representation and filed a notice of charging lien.  When the case was concluded the trial court entered an order imposing a charging lien.  The amount of the lien included Lawyer’s unpaid fees ($6713.40) as well as additional attorney’s fees ($1400.00) and expert witness fees ($1137.50) incurred in prosecuting the lien. 

          Wife appealed.  The Fourth DCA affirmed in part and reversed in part.

          The appeals court affirmed the imposition of the charging lien for Lawyer’s unpaid fees in representing Wife.  The court reversed the imposition of fees and expenses incurred by Lawyer in prosecuting the charging lien.  “[A]n attorney may not use a charging lien to secure fees incurred in enforcing the lien.  . . .  [T]he actions of an attorney in enforcing a charging lien does nothing to contribute to a positive judgment or settlement for the client.”  (Citation omitted.)

          Wife also argued that the trial court improperly ordered Lawyer’s charging lien to be enforced against her award of permanent periodic alimony.  The appeals court noted that a lawyer’s charging lien “‘may not be enforced against an award of permanent periodic alimony if to do so would deprive a former spouse of daily sustenance or the minimal necessities of life.’  Dyer v. Dyer, 438 So.2d 954, 955 (Fla. 4th DCA 1983) . . .”  The case was remanded for a determination of whether enforcement of the charging lien against the alimony award would deprive Wife of daily sustenance or the minimal necessities of life.   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]

          Husband and Wife were in divorce proceedings.  They reconciled, entering into an agreement (the “Agreement”) that contained a right of indemnification to either of them for attorney’s fees if one prevailed in a challenge to the agreement.   After the reconciliation failed, Husband filed for divorce.  Law Firm represented Wife and sought to have the Agreement set aside.  Subsequently Law Firm withdrew from the case and filed a charging lien.

          The trial court upheld the Agreement.  Husband was awarded about $207,000 in fees.  Law Firm argued that its charging lien should have priority over the fee award to Husband.  The trial court disagreed, stating in its order that the Agreement, which was entered into in March 2007, had priority over Law Firm’s charging lien.  Law Firm’s representation of Wife did not begin until September 2008.  Law Firm appealed.

          The Second DCA affirmed.  A charging lien is an equitable right, and the appeals court concluded that “[i]t would be inequitable to give priority to a charging lien that became effective a year and a half after the agreement, and arose out of efforts to attack the very agreement upon which the former husband’s right to indemnification arose.  Although the former husband was awarded indemnification for his attorney’s fees after the date of the law firm’s retainer agreement with the former wife, the former husband’s right to indemnification arose prior to the entry of the retainer agreement.  The court did not abuse its discretion in finding the former husband's claim ‘superior in time and first in right to those of’ the law firm.”

          The court commented that, if it were to give priority to the charging lien under the specific facts of this case, “it would encourage lawyers to challenge marital settlement agreements containing indemnification rights to prevailing party attorney’s fees with impunity, knowing that even if they lose, their charging lien would take priority over the agreement they challenged.  This would defeat the very equity that liens were designed to protect.”   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] 

              The trial court in a divorce case entered a fee award for Wife.  Husband appealed, contending that the court’s order did not contain “ the requisite factual findings on his ability to pay, the reasonableness of the hours expended and hourly rate, and the basis for the court’s payment plan.”  (Footnote omitted.)  Wife argued that F.S. 61.16 “does not require specific factual findings regarding attorney’s fees.”

          The Fourth DCA reversed, noting that “[w]e previously reversed a final judgment that included an “award of attorney’s fees because the trial court did not make findings concerning the former wife’s need and the former husband’s ability to pay fees and costs.  . . .  Here, the trial court found the former wife was in need of attorney’s fees, but did not make a finding as to the former husband’s ability to pay.  We therefore reverse the judgment on this issue and remand the case to the trial court to make the requisite written findings.”A fee award under F.S. 61.16 requires specific factual findings regarding financial need and ability to pay.  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]

          Wife sued an owner and a driver of a car that collided with hers.  Husband asserted a loss of consortium claim.  Defendants served a proposal for settlement on Wife that offered to pay $58,590 “in ‘an attempt to resolve all claims and causes of action resulting from the incident or accident giving rise to this lawsuit brought by Plaintiff [Wife] against Defendant [].’”  Wife did not accept the offer, but recovered only $17,955 at trial.  Defendants moved for an award of fees under F.S. 768.79 and Fla.R.Civ.P. 1.442.  The court denied the motion, reasoning that the proposal was deficient for, inter alia, failing to address Husband’s consortium claim.  Defendants appealed.

          The Second DCA reversed.  “[T]he rule requires that a proposal identify the claims it is ‘attempting to resolve,’ not every claim related to the suit brought by either plaintiff.  Although the loss of consortium claim was pending against the [Defendants] at the time of the proposal, that claim was not affected by the proposal for settlement because it was [Husband]’s separate and distinct claim, despite its derivative nature.  . . .  [Husband] Nash was still free to pursue his loss of consortium claim even if [Wife] accepted the proposal because it would only dismiss her claims; the proposal required no action or input on the part of [Husband] whatsoever because his cause of action was his own.  . . .  Because the proposal explicitly stated that it was to cover all claims brought by [Wife], it was not deficient for failing to address the other pending claim in the lawsuit brought entirely by a different plaintiff.A proposal for settlement under F.S. 768.79 was not deficient because it failed to address a loss of consortium claim maintained by the offeree’s spouse.  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]

          An appellate law firm (“Burlington”) and trial law firms (“Trial Attorneys”) entered into an agreement under which Burlington would assist Trial Attorneys during the trial of a case involving wrongful death, medical malpractice, and products liability.  The case was tried and a substantial verdict was rendered for the plaintiffs.  One of the defendants settled for an amount less than that in the verdict.  The other 2 defendants appealed, and the judgment was affirmed except for a setoff amount to be deducted from the judgment.  But instead of returning to the trial court for a corrected judgment to reflect the setoff, the 2 defendants “agreed to pay the judgment minus the setoff amount and obtain a satisfaction of judgment to end the matter without further court proceedings.”

          The law firms litigated in a separate action over the fee division agreement.  The key provision regarding the amount of the fee applied when the case “settled.”  The trial court ruled that the amount in dispute belonged to Trial Attorneys, reasoning that “the word ‘settled’ means voluntary resolution of the dispute between the parties via a settlement agreement and that a trial with its attendant verdict and judgment does not equate to a settlement agreement.”

          The Fifth DCA reversed.  After discussing the meaning of “settle” in Black’s Law Dictionary, the court concluded:  “Within the context of the entire agreement, and, in particular, the specific paragraph quoted earlier in this opinion, we believe that the word ‘settled’ was not intended by the parties to mean a mutual agreement of the parties that resolves the lawsuit.  Rather, we agree with Burlington that it means resolution of thelawsuit by final decision or payment or satisfaction of the judgment previously rendered.”   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]

          Exercising its conflict jurisdiction, the Supreme Court held that “when a single offeror submits a settlement proposal to a single offeree pursuant to section 768.79 and rule 1.442, and the offer resolves pending claims by or against additional parties who are neither offerors nor offerees, it constitutes a joint proposal that is subject to the apportionment requirement in subdivision (c)(3) of the rule.”

          Audiffred brought a personal injury claim against Defendant that included a loss of consortium claim for Audiffred’s husband, Kimmons.  Audiffred served Defendant with a proposal for settlement under F.S. 768.79 and Fla.R.Civ.P. 1.442.  It was not accepted.  After a favorable verdict Audiffred moved for fees based on the rejected proposal.  The court granted the motion.

          Defendant appealed, contending that the proposal for settlement was invalid because it was a joint proposal that did not apportion the amount attributable to each party.  The First DCA agreed and reversed.  Although the proposal stated it was made by Audiffred, it included this condition:  “Both Plaintiffs will dismiss this lawsuit, with prejudice, as to the Defendant.”  Fla.R.Civ.P. 1.442(c)(3) requires that a “joint proposal” for settlement “shall state the amount and terms attributable to each party.”  This requirement is strictly construed and can be especially important in cases involving a loss of consortium claim.  The First DCA concluded that the proposal was a joint one, notwithstanding that it purported to be from only Audiffred.  The proposal stated that both Audiffred and Kimmons would dismiss their claims upon acceptance.  It was a joint proposal that should have apportioned the settlement amount between plaintiffs.  Arnold v. Audiffred, 98 So.3d 746 (Fla. 1st DCA 2012). 

                The Supreme Court approved the DCA’s decision.  The proposal did not comply with F.S. 768.79 and Fla.R.Civ.P. 1.442.  The complaint made separate claims by Audiffred and Kimmons.  Although Audiffred was the sole offeror, if accepted the offer would have resolved all pending claims by both Audiffred and Kimmons.  “[T]he proposal had the effect of settling claims by two plaintiffs against one defendant.  Under the required strict construction of the rule and the statute, this ultimate effect of the offer requires that it be treated as a joint proposal.  Accordingly, for the proposal to be valid, it was necessary for the amount offered to be apportioned between Audiffred and Kimmons.”  (Footnote omitted.)   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]

          Exercising its conflict jurisdiction, the Supreme Court held that apportionment of a settlement amount is required where an offer of judgment is made by or to multiple parties.

          Plaintiff filed a medical malpractice suit against various defendants, including FMC Hospital, Ltd. and FMC Medical, Inc.  Plaintiff alleged that these 2 defendants owned and operated Florida Medical Center, and were “responsible for the negligence of a single entity, Florida Medical Center.”  (Emphasis by Fourth DCA.)  The 2 defendants made a $10,000 proposal for settlement.  Plaintiff did not accept.  The case was tried and the parties stipulated that the proper party in interest was FMC Hospital, Ltd. d/b/a Florida Medical Center.  The jury found for this defendant, which then moved for fees pursuant to the rejected settlement offer.  The court granted  the motion.

          Plaintiff appealed, contending that the proposal was unenforceable because it did not apportion the offer between 2 separately named defendants.  The defendants responded apportionment was not required because Florida Medical Center was the single hospital entity alleged to be responsible.  The Fourth DCA affirmed. The court viewed the offer as having been from a “the single hospital entity allegedly responsible.”  Pratt v. Weiss, 92 So.3d 851 (Fla. 4th DCA 2012).

          The Supreme Court quashed the DCA’s decision.  “[T]he plain language of the settlement offer in this case demonstrates it was a joint proposal.  Although the offer was titled ‘Defendant, Florida Medical Center’s, Proposal for Settlement/Offer of Judgment,’ the text of the proposal unambiguously refers to the defendant offerors in the plural.  Thus, under the clear wording of the proposal, two offerors – FMC Hospital and FMC Medical – presented the offer.  Accordingly, under section 768.79 and rule 1.442 the proposal was invalid because it failed to apportion the settlement amount between FMC Hospital and FMC Medical.”  (Emphasis by Court.)  The Court emphasized that, “[e]ven where no logical apportionment can be made, it is nonetheless required where more than one offeror or offeree is involved.”   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]

          Plaintiff sued Defendants for breach of contract relating to the sale of a business.  Defendants answered and counterclaimed for fraudulent inducement, requesting fees in both pleadings.  Plaintiff answered but did not request fees.  After various judgments and appeals, the trial court eventually determined that Defendants prevailed on the breach of contract claim and Plaintiff prevailed on the counterclaim.  Reasoning that “the parties essentially ‘battled to a draw’ and that ‘neither party prevailed in this case,’” the court declined to award fees to either side.  Defendants appealed.

          The Fourth DCA reversed, concluding that Defendants were entitled to fees.  The court pointed out that, “[a]bsent compelling circumstances, one party must prevail in a breach of contract action.”  Here, Defendants prevailed on that claim.

          Plaintiff might have been awarded fees for prevailing against the counterclaim, but he failed to request them and so waived his entitlement to fees.   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]

          A Judge of Compensation Claims (“JCC”) reduced a stipulated claimant-paid fee to Lawyer to 10% of the value of past benefits secured.  F.S. 440.34(1) provides that the fee is to be 30% of the first %5000 of benefits secured by the attorney, 15% of the next $5000, and 10% of the remaining benefits over $10,000 (the “20/15/10 formula”).  The JCC awarded 10% to Lawyer because the first $10,000 in benefits, “to which the percentages of twenty and fifteen percent would apply, had been ‘exhausted’ with the approval of another attorney’s fee on a lump-sum settlement (which were collected by another attorney altogether).”

          The First DCA reversed.  The JCC erred because “each separate and distinct attorney’s fee is subject to the 20/15/10 formula.”  See Cortes-Martinez v. Palmetto Vegetable Co., 40 Fla. L. Weekly D609 (Fla. 1st DCA Mar. 10, 2015).   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]

          A marital home titled solely in Husband’s name was homestead property.  A foreclosure suit was filed against Husband.  He hired Law Firm to defend him.  Husband’s fee agreement with Law Firm provided that Law Firm could seek its foreclosure case fees from the proceeds of the sale of the marital home.

          While the foreclosure case was pending, Wife sued for dissolution of the marriage.  She asked the court to partition and sell the marital home.  She argued that the net proceeds were homestead property.  They were escrowed.  Law Firm moved to intervene in an effort to collect the fees that were due it from Husband.  Wife argued that Law Firm “had no claim against the escrow funds because they were ‘the proceeds of the sale of the parties’ homestead property,’ and because the firm had no enforceable claim against her or her funds.”  The court awarded all of the escrowed funds to Wife.

          Wife moved for fees from Law Firm under F.S. 57.015, asserting that the proceeds from the sale of the marital home were exempt from the firm’s claim for fees because the home was homestead property, and that Law Firm had no legal basis to seek fees from her after the court determined that the proceeds from the home’s sale were hers.  The trial court denied Wife’s motion for fees on the ground that Law Firm “had a ‘good faith legal and factual basis to bring its claim’” for fees.  Wife appealed.

          The Third DCA reversed.  The protections of homestead property cannot be waived in an attorney-client retainer agreement.  The court concluded:  “In sum, there being nothing new or questionable in long established protections afforded homestead property or the immutable principles of contract law, the firm should have known, either from the start or at the latest shortly after it was allowed to intervene, that the promise made by [Husband] could only be enforced against him and any of his non-exempt property.  Having ignored these verities, the firm should rightly be held accountable for the fees [Wife][ incurred in defending against the untenable claim it continued to advance.”   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 sued the Mestres to foreclose a mortgage allegedly executed by the Mestres.  The Mestres contended that they had not signed the document and that their signatures had been forged.  Ultimately the trial court agreed and dismissed Bank’s complaint.

          The Mestres sought attorney’s fees under the contract as the prevailing party.  The Mestes appealed.

          The Fifth DCA reversed.  “Bank correctly asserts that no contractual authority exists to support the attorney’s fees award because, notwithstanding the prevailing party attorney’s fees provision in the mortgage, the court, at the urging of the Mestres, found that the signatures on the mortgage were  fraudulently executed.  As a result, the forged document became void and unenforceable.  . . .  Moreover, because the trial court found that the Mestres’ signatures were not the signatures on the loan documents, no legal obligations were ever created between the parties.  . . .  Thus, the Mestres were not entitled to attorney’s fees based on any agreement between the parties.”   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]

          Law Firm represented Former Clients under 3 contingent fee agreements.  Former Clients discharged Law Firm.  Former Clients hired new counsel, who filed suit for Former Clients against several entities from which Former Clients claimed they were due lost profits.  Law Firm filed a notice of charging lien in one of the cases (the “Ongoing Action”).

          Former Clients filed a separate declaratory judgment suit against Law Firm, seeking to have the charging lien discharged and invalid.  Law Firm moved to dismiss, asserting that the declaratory judgment action “was premature and improper under Florida law because the Ongoing Action – to which the notice of charging lien related – remained pending.”  Alternatively, Law Firm sought to have the action transferred to the court before which the Ongoing Action was pending.  The trial court dismissed the declaratory judgment action.  Former Clients appealed.

          The Third DCA affirmed.  The court’s opinion recited some points of regarding charging lients.  Law Firm perfected its charging lien (“[t]here are no requirements for perfecting a charging lien beyond the giving of timely notice to the client”).  Furthermore, “an attorney’s ability to enforce a charging lien under a contingency fee agreement is dependent upon the occurrence of the contingency.”  Unless and until the contingency occurs, “there is nothing to which the charging lien can attach.”  The court concluded:  “[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 . . .  Any claims the Former Clients may have regarding the validity or enforceability of the charging lien can be presented (at the appropriate time) to the trial court judge presiding over the Ongoing Action.”   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]

          Mother was the oblige in a child support situation (i.e., the person to whom child support payments are made).  Mother brought an action against Father, the obligor, for non-payment of child support.  The Department of Revenue intervened on behalf of Mother.  The parties settled the matter in an agreed order that stated that Father had complied with his child support obligation.  Father sought attorney’s fees from Mother, contending that she had instituted the proceeding just to harass him.  The trial court granted the motion for fees against Mother.

          The Third DCA reversed.  The case was a Title IV-D action by virtue of the Department’s intervention.  F.S. 61.16(1) limits fee awards in Title IV-D actions:  “In Title IV-D cases, attorney’s fees . . . shall be assessed only against the nonprevailing obligor after the court makes a determination of the nonprevailing obligor’s ability to pay such costs and fees. . .”  Accordingly, fees cannot be assessed against an obligee.  The trial court erred in assessing fees against Mother.   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]

          Insured claimed entitlement to “stacked” uninsured motorist coverage under his parents’ policy.  The Insurer disputed coverage.  The determinative issue was whether insured was a resident relative under the policy.  Insurer tendered what it claimed was policy limits of $100,000.  After Insured filed suit and was examined under oath, Insurer paid the additional proceeds of $200,000.  The trial court denied statutory attorney’s fees to Insured.

          The Fifth DCA reversed.  “Because we conclude that [Insurer] initially disputed [Insured]’s entitlement to ‘stacking’ uninsured motorist benefits and that its later concession on that issue was tantamount to a confession of judgment, we reverse and remand this cause with instructions for the trial judge to award to [Insured] his reasonable fees in an amount to be determined by the trial judge.”   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]

           A trial court awarded fees and costs under F.S.57.105 against Appellants and their original lawyer.  On appeal, the lawyer argued that it was error to award fees “without making an express finding that that there was no justiciable issue and that the attorney was not acting in good faith based upon the representations of his client.”  The trial court, however, did find that the lawyer “knew or should have known this to be the case at the time the defense [at issue] was raised.”

          Receding from its prior cases decided under a pre-1999 version of the statute, the Fourth DCA affirmed.  The earlier version did require bad faith, but the current version does not.  There simply has to be a finding that the counsel or party “knew or should have known” that the claim or defense n question “was not supported by the materials facts necessary to establish” it.  F.S. 57.105(1) (2010).   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]

          In good faith, Children petitioned for involuntary guardianship and incapacity proceedings for Parents.  The court appointed counsel for Parents, and an examining committee conducted incapacity proceedings.  The committee determined that Parents were not incapacitated.  Accordingly, the court dismissed the proceedings.  Parents’ counsel petitioned for attorney’s fees under F.S. 744.331.  The court entered orders authorizing payment of fees.  Parents appealed.

          The Second DCA reversed.  The appeals court relied on In re Guardianship of Klatthaar, 129 So.3d 482 (Fla. 2d DCA 2014) (statute does not require alleged incapacitated person to pay fees when petition to determine guardianship and incapacity brought in good faith but incapacity not found and guardianship not established).

          The court went on to “emphasize the importance of correcting the statutory gap that gives rise to the issues presented.”  The court explained the problems:  F.S. 744.331 “does not address situations wherein good faith incapacity petitions are ultimately dismissed, court-appointed attorneys are left with a right without a remedy.  This puts the trial court in a bind as it is forced to appoint attorneys and examining committees knowing that if a petition is brought in good faith but is ultimately dismissed, the attorneys will not be paid.  Similarly, recognizing the risks associated with court appointment in incapacity and guardianship proceedings, attorneys will be hesitant to make themselves available for such appointment.”  Ultimately, the court acknowledged that these problems must be corrected by the legislature, not the courts.   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]

          Insured was in an auto accident.  Insured sued her Insurer based on the uninsured/underinsured coverage in her policy.  Insured served a proposal for settlement “in the total amount of One Hundred Thousand Dollars ($50,000.00) inclusive of all costs and fees and in full and final settlement of all pending claims.  The total amount of this settlement shall not exceed $50,000.00.” (emphasis by court).  The policy limits were $50,000.  Despite the discrepancy in amounts, the trial court granted Insured’s motion for fees because it was “sufficiently clear and definite and not susceptible to more than one reasonable interpretation.”  Insurer appealed.

          The Fourth DCA reversed.  The court relied on Stasio v. McManaway, 936 So.2d 676 (Fla. 5th DCA 2006), where the court held that “even if ‘the reference to $59,000 [in words, while $60,000 appeared in numerals] was a mere typographical error, the consequences of that error’ fell on the party seeking to enforce the proposal.”  In this case, Insured’s proposal “contains a patent ambiguity – spelling out $100,000 in words but also referring to $50,000 in numerals” and thus the trial court erred in enforcing it.   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]

          Plaintiff sued Defendant for injuries from an auto accident.  Plaintiff rejected Defendant’s offer for settlement for $5001 but obtained a jury verdict for only $1258.  Plaintiff moved to strike the offer as “ambiguous as to whether it would extinguish her potential uninsured motorist and health insurance claims.”  The trial court awarded fees and costs of $36,000 to Defendant.

          The Fifth DCA reversed.  The offer provided that it would resolve “all actions, causes of action, demands for damages of whatever name or nature and tort, contract or by statute, in any matter arisen, arising” out of the subject accident.  The court concluded:  “In essence, this language constitutes a general release implicating claims extrinsic to the litigation. The fact that the Offer did not require a separate document entitled release is immaterial because the only claim involved in the underlying suit was a tort claim. Nevertheless, the Offer expressly proposes to resolve contractual and statutory claims. For that reason, the Offer is ambiguous as to whether it would preclude [the] potential uninsured motorist and health insurance claims, and thus, is unenforceable.”    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]

          Lawyer represented Claimant in a workers’ compensation case.  The parties agreed to settle the case in its entirety for $28,500.  Claimant was to pay Lawyer a fee of $3,600 based on the formula in F.S. 440.34(1) (“. . .  Any attorney’s fee approved by a judge of compensation claims for benefits secured on behalf of a claimant must equal to 20 percent of the first $5,000 of the amount of benefits secured, 15 percent of the next $5,000 of the amount of the benefits secured, 10 percent of the remaining amount of the benefits secured to be provided during the first ten years after the date the claim is filed, and 5 percent of the benefits secured after ten years. . . .”).

          The parties also agreed that the Employer/Carrier would pay a fee to Lawyer based on Lawyer’s having secured $4,940.54 in past benefits that had been paid in the same case as a result of litigation.  The Judge of Compensation Claims (“JCC”) approved the fee to be paid by Claimant but declined to approve the fee for the benefits secured in the past litigation.  “The JCC reasoned that there can be only one $5,000 in benefits secured for which a 20% fee can be approved and only one $5,000 in benefits for which a 15% fee can be approved. Once the $10,000 threshold is reached in the life of the case, any additional fee would be limited to 10% of the benefits secured.”

          The First DCA reversed, holding that the “plain language of section 440.34” did not support the JCC’s ruling.  “The section makes reference to “the” claim, suggesting that there can be more than one claim that would qualify for application of the full formula.”   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]

           Former Clients were represented by Lawyer in a legal malpractice case against another attorney and her firm. Lawyer withdrew from the case. The trial judge’s order allowing Lawyer to withdraw “did not reference any potential charging lien,” but Lawyer’s contract with Former Clients “purports to grant [Lawyer] a charging lien.” Former Clients (through new counsel) reached a settlement with the defendants in the malpractice case. The defendants wanted the issue of Lawyer’s charging lien resolved before they would pay the settlement proceeds, so Former Clients filed a motion asking the trial court to cancel Lawyer’s charging lien. The court denied the motion, and Former Clients appealed.

           The Third DCA dismissed the “premature appeal” sua sponte for lack of jurisdiction. The order in question was not a final order, as further judicial labor is required to adjudicate the parties’ dispute. “The trial court is still required to conduct an evidentiary hearing to determine the amount of any fee to which Lanza may be entitled. Smith & Burnetti, P.A. v. Faulk, 677 So.2d 404 (Fla. 2d DCA 1996). Any such fee would be based on quantum meruit principles without regard to a lodestar, taking into account the amount of fees paid to [Former Clients’] current counsel. In no instance should [Former Clients] be responsible for fees exceeding their original Fee Contract with [Lawyer]. Collier v. Bohnet, 966 So.2d 1033, 1035 (Fla. 4th DCA 2007).”  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]

           Appellant filed a notice of appeal in a mortgage foreclosure case on June 20, 2014. On August 20, 2014, before she even filed her initial brief, Appellant served the Appellee, a finance company, with a motion for appellate attorney’s fees pursuant to F.S. 57.105. Appellant’s motion stated that Appellant would file the motion with the court if Appellee did not file a confession of error within 21 days of being served. When Appellee did not confess error, Appellant filed the 57.105 motion with the court. Appellee moved to strike the motion, asserting “that neither section 57.105 nor [Fla.R.App.P.] 9.410(b) authorizes the filing of a motion seeking sanctions prior to the opposing party filing any type of paper, claim, contention, allegation or denial in the appeal.”

          The Third DCA struck the motion as premature. “Both section 57.105 and rule 9.410 (b) contemplate that a sanctions motion be directed toward a party’s specific filing or assertion. Pursuant to the procedure expressly outlined in both the statute and the rule, before a movant may file the sanctions motion with the court, the non-moving party must have at least twenty one days (the ‘safe harbor’ period) to evaluate the efficacy of the motion and to determine whether to withdraw the challenged paper, claim, defense, contention, allegation or denial. If, as in this case, the non-moving party neither has filed a challenged paper with the appellate court nor has had the opportunity to assert in oral argument a challenged claim, defense, contention, allegation, or denial, then there is nothing for the non-moving party to withdraw.”  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]

           In an auto accident case, defendant (“Petitioner”) made a proposal for settlement to plaintiff (“Respondent”). Respondent did not accept. After a favorable verdict, Petitioner moved for fees and costs pursuant to F.S. 78.79. Her motion included itemized invoices, as well as an affidavit from one of the attorneys of record stating that the invoices were correct and that the costs and fees were necessarily incurred. Respondent moved to compel discovery of Petitioner’s entire litigation file, arguing that access to the file was necessary in order for her to determine whether the offer had been made in good faith. Respondent also asserted that attorney-client privilege was waived by the filing of the supporting affidavit. The trial court granted the motion to compel, concluding that Petitioner “waived attorney-client privilege by her attorney’s filing of the affidavit, which was tantamount to testifying” and that “a party cannot claim work-product privilege in connection with a claim for recovery of attorney fees.”

           Petitioner sought a writ of certiorari from the First DCA. The First DCA granted the petition, stating: “We find the trial court’s rulings that the petitioner waived attorney-client privilege by filing an affidavit in support of a request for attorney’s fees, and that a party cannot claim work-product privilege in connection with a claim for recovery of attorney’s fees, constitute clear departures from the essential requirements of law which cannot be remedied on appeal.” Whether or not an offer is made in good faith is determined by objective criteria, and does not require disclosure of privileged communications. The affidavit supporting the fee motion did not constitute a waiver of attorney-client privilege; hours expended and the hourly rate are not privileged information, and so the invoice and affidavit “did not disclose privileged communication and thus did not waive attorney-client privilege.” Finally, the trial court erred in finding that work product privilege could not be asserted in connection with an attorney’s fee claim.  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]

           Olivia Ziadie, as guardian of her injured son, sued doctor Duong for medical malpractice. The plaintiff was identified as Olivia, as guardian for her son and for two of her son’s minor children. Olivia made a proposal for settlement, which the Duong did not accept. After a favorable trial result, Olivia moved for fees based on the proposal for settlement, pursuant to F.S. 768.79 and Fla.R.Civ.P. 1.442. Rejecting Duong’s two arguments that the proposal was ambiguous, the trial court awarded fees. Duong appealed.

           The Fourth DCA affirmed. First, the fact that a cover letter attached to the proposal for settlement did not exactly track the proposal did not render the proposal ambiguous. The cover letter was not part of the proposal; “[t]The Proposal for Settlement was clearly the operative document, and the letter is not inconsistent with that interpretation.”

           Second, the proposal itself was not ambiguous. The trial court correctly concluded that the proposal was “an appropriate ‘all or nothing’ proposal to which [Attorneys’ Title Ins. Fund v]. Gorka [36 So.3d 646 (Fla. 2010)] did not apply.” The appeals court explained: “Unlike Gorka, which involved an offer to multiple offerees conditioned on acceptance of all the offerees, this case involves an offer to a single offeree, conditioned on that single offeree accepting the offer as to all of the multiple offerors. Since Gorka was issued in 2010, this court and other district courts have upheld this type of offer.” (Emphasis by court, citiations omitted.)  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]

           Plaintiff Klinkenberg sued Paduru, the allegedly negligent driver, and Anugu, the vehicle owner, for injuries following an auto accident. Klinkenberg served Paduru with a proposal for settlement, which Paduru did not accept. Among other things, paragraph 6 of the proposal was contained this non-monetary condition: “Plaintiff will dismiss with prejudice the above-styled action against Defendants Saritha Reddy Paduru and Ravi Anugu after the defendant Anugu (or his agents) tenders the proposed settlement amount.”

           After a favorable trial result, Klinkenberg moved for fees based on the proposal for settlement, pursuant to F.S. 768.79 and Fla.R.Civ.P. 1.442. The trial court granted the motion. Paduru appealed.

           The First DCA reversed. The condition in paragraph 6 was a settlement condition over which Paduru had no control, rendering the proposal invalid. In Attorneys’ Title Ins. Fund v. Gorka, 36 So.3d 646 (Fla. 2010), the Supreme Court ruled that: “[A]n offer of judgment must be structured such that either offeree can independently evaluate and settle his or her respective claim by accepting the proposal irrespective of the other parties' decisions. Otherwise, a party's exposure to potential consequences from the litigation would be dependently interlocked with the decision of the other offerees.” Paragraph 6 of the Klinkenberg’s proposal violated this principle because it linked dismissal of the case to payment of the settlement amounts by someone else (Anugu or his agents), “with the result that Paduru was unable to evaluate the terms of the proposal.”  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]

           A minor, “by and through her mother and guardian,” sued a defendant for injuries to the minor from a playground accident. Defendant served a proposal for settlement on the plaintiff pursuant to F.S. 768.79 and Fla.R.Civ.P. 1.442. “The proposal tracked the same language used by appellee in the complaint and stated that the offer was being made to ‘Plaintiff, FATOU N. JACKSON, a minor, by and through her mother and guardian, COUMBA JACKSON, individually.’” Plaintiff did not accept the proposal.

           After a defense verdict, Defendant moved for fees based on the proposal for settlement. The trial court found the proposal ambiguous and denied the motion. Defendant appealed.

          The Fourth DCA reversed. The proposal was not ambiguous. “Since [Plaintiff, the minor] was the sole plaintiff in this case, with the mother acting only as her guardian, [Defendant] argues that there was no ambiguity as to the offeree, and therefore it was not required to apportion its settlement offer between [Plaintiff, the minor] and the mother. We agree.”  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]

           Claimant in a workers’ compensation case entered into a stipulation whereby the employer/carrier accepted compensability of the claim. Claimant moved for attorney’s fees under F.S. 57.105. The Judge of Compensation Claims denied the motion. Claimant appealed.

          The First DCA affirmed, holding that “section 57.105 is not applicable to original proceedings in workers’ compensation claims brought under chapter 440.” The court explained: “We reject Claimant’s argument that the attorney’s fee provisions of section 57.105 are intended to supplement the provisions of chapter 440 with an additional sanction or remedy. The essentially self-contained workers’ compensation law in chapter 440 already provides a host of specific sanctions and remedies which includes attorney’s fees for frivolous claims and defenses under section 440.32, Florida Statutes (2011). Furthermore, section 57.105 contains no suggestion of legislative intent to include workers’ compensation cases.”  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]

           The trial court entered an order approving the settlement of a will contest. The order had a provision for attorney’s fees if legal action was brought to enforce the judgment. When one party failed to pay as agreed, the other party obtained a final judgment from the court. The judgment “retained jurisdiction ‘in order to enter further orders as are proper’ but did not specifically mention attorney’s fees.” The judgment was entered on January 5, 2011. On September 7, 2012, the party filed a motion for attorney’s fees. The motion was denied.

          The Fourth DCA affirmed. The movant did not timely file the fee motion under Fla.R.Civ.P. 1.525, which requires service of the fee motion within 30 days of entry of the final judgment. Although there is a recognized exception when the judgment has determined entitlement to fees. That did not happen here.

          “The appellant [movant] in this case essentially requests this court to create an exception to Rule 1.525 where an order approving a settlement agreement generally reserves jurisdiction to enforce the agreement’s provisions and one of the provisions pertains to attorney’s fees. However, doing so would gut Rule 1.525 by allowing a party – as was done in this case – to wait months, if not years, before claiming entitlement to attorney’s fees. Since many final judgments reserve jurisdiction to enforce their terms, to create an exception to rule 1.525 in this case would be to nullify the rule’s application in many cases.”  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 filed a 2-count complaint, for contribution and indemnification, against TSPA as a third-party defendant. TSPA filed and served a proposal for settlement, which Scherer did not accept. The trial court granted summary judgment for TSPA on the contribution count, and Scherer voluntarily dismissed the indemnification count. The court awarded attorney’s fees to TSPA based on the rejected proposal for settlement.

          Scherer appealed. The Fifth DCA affirmed the fee award on the contribution count but reversed the fee award on the indemnification count. Citing Ormond Beach Associates Ltd. v. Citation Mortgage, Ltd., 835 So.2d 292 (Fla. 5th DCA 2002), review denied 847 So.2d 978 (Fla. 2003), and other cases, the appeals court stated: “Because the indemnification count was voluntarily dismissed by Scherer without prejudice, it was improper for the trial court to render judgment awarding attorney’s fees in favor of TSPA for its defense of the dismissed count for indemnification.”  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]

           Plaintiff Arce did not accept defendant Wackenhut’s proposal for settlement. Arce lost at trial, and the trial court granted Wackenhut’s entitlement to fees under the offer of judgment statute, F.S. 768.79. Arce lost his appeal, with the appeals court granting Wackenhut’s motion for appellate fees and remanding the case to the trial court “to fix amount.”

          On remand the trial court held an evidentiary hearing on Wackenhut’s motion to determine the amount of fees. The trial court directed Arce to submit a motion to vacate the entitlement order “due to the lack of good faith of Wackenhut’s proposal for settlement.” (Footnote omitted.) Up to that point, “Arce had never filed any response or objection to Wackenhut’s two motions for attorney’s fees and costs, either with the trial court or” the appeals court. When Arce filed his motion to vacate the order granting entitlement to trial fees, the trial court granted it on the ground that the nominal settlement proposal had not been made in good faith. The trial court subsequently set the amount of appellate fees, noting that it would have denied entitlement to them absent the appeals court’s specific order “to fix amount.”

          Arce appealed, arguing that the trial court should have also vacated the appellate fees award. Wackenhut cross-appealed, contending that Arce waived his lack-of-good-faith argument “by failing to object, respond, or otherwise raise the claim of lack of good faith with this Court when Wackenhut initially moved for appellate fees and costs, and in failing to seek rehearing or clarification of this Court’s order granting the motion and remanding for the trial court to fix the amount.” The Third DCA agreed with Wackenhut.

          The offeree bears the burden of showing a lack of good faith on the part of the offeror before a court may disallow a fee award to which the offeror is otherwise entitled. Futhermore, good faith is a factor to be considered by a court in fixing the amount of a fee award, and so may not be raised for the first time at a motion to fix the amount. The appeals court concluded: “[O]nce this Court issued its order granting the motion and remanding with the single directive to the trial court ‘to fix [the] amount’ of fees and costs, Arce acted at his own peril in failing to seek rehearing, reconsideration or clarification whether this Court’s order foreclosed his ability to raise lack of good faith on remand. In failing to seek a clarification of this Court’s order, Arce and the trial court were bound by the plain meaning of the order, and the mandate that followed, which implicitly and necessarily excluded any consideration of lack of good faith and became law of the case. [Citation omitted.] The trial court correctly determined that, in light of this Court’s order, Arce could not raise, and the trial court could not consider, Arce’s claim of lack of good faith.”  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]

           Insured filed a claim with her homeowner’s Insurer for damage to her home allegedly caused by a sinkhole. Insurer investigated “pursuant to a compilation of statutory provisions that requires insurers to meet certain standards in the investigation and handling of sinkhole claims. The statutes also make provision for a neutral evaluation procedure that offers an alternative to litigation.” Insurer commissioned a professional engineering firm for testing. The firm reported that the damage was not caused by a sinkhole. Insurer forwarded a copy of the report to Insured, stating that it was denying the claim and informing Insured of her right to participate in the neutral evaluation program (at Insurer’s expense).

          Insured did not respond to this letter. Insured then sought an opinion from a different engineering firm, which concluded that sinkhole activity caused the damage. Insured filed suit against Insurer. Upon being sued, Insurer moved for a neutral evaluation. After the evaluator concluded that there was a sinkhole loss, Insurer paid Insured’s claim.

          Insured moved for fees under F.S. 627.428, arguing that Insurer essentially confessed judgment. “The trial court granted the motion based on the confession of judgment doctrine, concluding that when [Insurer] agreed to pay the claim and tendered the policy benefits, it confessed judgment, thus rendering it liable for fees under the statute.” Insurer appealed.

          The Fifth DCA reversed. It disagreed with Insured’s contention that filing suit and obtaining payment is all that is necessary for an award of fees under section 627.428. The fee award statute is intended to penalize insurers from wrongfully denying claims. That did not occur here. “We do not believe that, under the facts and circumstances of this case, [Insurer]’s actions in investigating and handling [Insured]’s claim pursuant to the pertinent statutory provisions contained in chapter 627, and in relying on the presumptively correct report it commissioned to deny the claim, establish a wrongful or unreasonable denial of benefits that forced [Insured] to file suit to obtain her policy benefits. We, therefore, conclude that application of the confession of judgment doctrine as a basis to award fees under section 627.428 was error.”  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]

           By an amended complaint, Design Home was added to a suit as a defendant. Sixty days later Design Home served 2 plaintiffs with individual proposals for settlement. The proposals were not accepted. After the subsequent entry of a final summary judgment for Design Home, Design Home moved for attorney’s fees under the offer of judgment statute, F.S. 768.79. The trial court denied the motion because the proposal was filed prematurely pursuant to Fla.R.Civ.P. 1.442(b). Design Home appealed.

          The Third DCA affirmed. Rule 1.442(b) provides: “A proposal to a defendant shall be served no earlier than 90 days after service of process on that defendant; a proposal to a plaintiff shall be served no earlier than 90 days after the action has been commenced.” (Emphasis by court.) Because the proposal was filed prior to 90 days after Design Home joined the action, it was premature and would not support a fee award.

          The court noted that the result “may appear harsh,” but was required by the rule. In a footnote, the court encouraged the Bar’s Civil Procedure Rules Committee “to consider whether the rule should be amended to require an offeree to serve a limited response to a proposal (apart from the existing response provision in the rule), raising any procedural defects to the proposal, thereby providing the offeror with an opportunity to serve a corrected proposal, in an effort to effectuate the salutary purpose underlying a proposal for settlement. Should the offeree fail to serve such a response, the rule could provide that this failure waives any right to subsequently challenge the proposal based upon these procedural defects. Such an amendment would prevent situations in which an offeror might reasonably believe he has made a fair, valid and binding offer, only to find out (at the eventual conclusion of costly and lengthy litigation) that the offer was procedurally defective and therefore invalid ab initio. If the aim is to promote early and reasonable settlements, it seems worthwhile to consider whether the rule should be fashioned to give the offeror an opportunity to cure any procedural defects so that the offeree has a genuine opportunity to weigh the substantive merits of a proposal for settlement.”  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]

           Plaintiff sued Hospital in a medical malpractice case. The trial court ordered Hospital to produce certain documents. Hospital petitioned the Second DCA for a writ of certiorari, which was denied. Plaintiff did not seek attorney’s fees in the appellate proceeding, and the appeals court did not authorize or award fees.

          Back in the trial court, Plaintiff filed a renewed motion to compel production and sought a fee award “associated with the filing of this motion and for such other relief this court deems just and proper.” The trial court entered an award for an amount including approximately $2500 in trial-level fees and $21,240 in appellate court fees “purportedly incurred by [Plaintiff] . . . in ‘obtaining the documents.’” Hospital appealed the fee award.

          The Second DCA reversed the portion of the order awarding appellate attorney’s fees. “Absent an appellate court's authorization, a circuit court has ‘no authority to award attorneys’ fees for services in [the appellate] court, even as a sanction.’” (Citation omitted; emphasis by court.) The appeals court pointedly rejected Plaintiff’s attempt “to sidestep this well-established law by arguing that the fees incurred in defending the certiorari proceedings were not "appellate" fees, but merely fees incurred in ‘obtaining the documents.’” This argument was “so nonsensical, it borders on frivolity.”  Bartow HMA, LLC v. Kirkland, __ So.3d __ (Fla. 2d DCA, No. 2D13-3483, 9/3/2014).


Error to award attorney’s fees to former wife who had ample means to obtain counsel.  [Added 9/3/14]

           The Fifth DCA reversed an award of attorney’s fees and expert witness fees to Former Wife “because Former Wife had ample means to obtain counsel and experts.” The court noted that Former Wife’s argument for fees focused “on the disparity between the parties’ assets, which is not the correct standard.”  Eldridge v. Eldridge, __ So.3d __ (Fla. 5th DCA, Nos. 5D12-3730, 5D13-118, 8/29/2014).


Appellate attorney’s 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]

           A trial court dismissed Appellant’s amended complaint with prejudice. Appellant (a law firm) appealed. The First DCA affirmed, and in doing so awarded attorney’s fees to Appellee under F.S. 57.105(1). “An award of appellate fees under section 57.105 is appropriate here as the appellant knew or should have known the instant appeal was frivolous. The alleged guarantee claim against the appellee was within the Statute of Frauds and was neither reduced to writing nor signed by him. The law applicable to the case is clear and well-settled such that the appellant should have known that the relief sought was not supported by an application of the law. Given the mandatory nature of section 57.105 and our finding that the basis for the appeal and the arguments made were groundless, we grant the appellee’s motion for appellate attorney’s fees pursuant to section 57.105.”  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]

           In the dissolution of a 26-year marriage Husband was left with a net worth of $17million and Wife had under $1 million. The trial court denied Wife’s request for attorney’s fees. Wife appealed.

          The First DCA reversed. To require Wife “to pay the remaining balance of her attorney’s fees, about $200,000\, would require an ‘inequitable diminution’ of her equitable distribution award. Conlan v. Conlan, 43 So.3d 931, 934 (Fla. 4th DCA 2010). Given the significant disparity in wealth, her demonstrated need, and the husband’s clear ability to pay, the trial court abused its discretion in denying the wife’s request for attorneys’ fees and costs.”  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]

           Law Firm no longer represented its former client. The firm asserted a retaining lien over the file and refused to provide records until the former client paid its bill. At a hearing on a discovery issue between Law Firm and the former client, the trial court sua sponte ordered the firm to make its file available for inspection and copying by successor counsel, “but provided that its retaining lien would be preserved.” Law Firm petitioned the Fourth DCA for a writ of certiorari.

          The appellate court granted the petition and quashed the production order. “The order in this case departs from the essential requirements of law and causes material harm that cannot be remedied on appeal because the value of the retaining lien will be lost and because petitioners are not parties to the underlying action. Shelowitz, Shelowitz, Terrell & Coffy, P.A. v. Peters, 931 So. 2d 1059 (Fla. 4th DCA 2006); Andrew Hall & Assocs. v. Ghanem, 679 So. 2d 60 (Fla. 4th DCA 1996); Wintter v. Fabber, 618 So. 2d 375 (Fla. 4th DCA 1993); see also Fox v. Widjaya, 38 Fla. L. Weekly D2287 (Fla. 3d DCA Nov. 6, 2013).”  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]

           Garcia sued police officer Phillips and others for false arrest and malicious prosecution. Phillips’ motion for summary judgment was granted on the ground of qualified immunity. Phillips moved for section 57.105 sanctions against Garcia. The trial court denied the motion. Phillips appealed.

          The Third DCA affirmed. The trial court did not abuse its discretion in denying the motion for 57.105 sanctions. “The fact that the trial court determined, via summary judgment, that Phillips was entitled to qualified immunity, does not necessarily mean that Garcia’s malicious prosecution claim lacked factual support – and was therefore sanctionable – under section 57.105. [Citations omitted.] The record supports the trial court’s conclusion that Phillips did not establish that Garcia’s malicious prosecution claim was meritless; Phillips simply proved that, in this instance, she was able to avoid Garcia’s claim by successfully advancing her immunity defense.”  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]

           Defendant in a civil suit served a motion for sanctions under F.S. 5.105 on Plaintiff. Before the running of the 21-day safe harbor period under the statute, Plaintiff voluntarily dismissed the suit. Six days later, and within 21 days of serving the motion, Defendant filed the motion with the court. Plaintiff petitioned the Fourth DCA for a writ of prohibition.

          The appellate court granted the petition. Relying on Pino v. Bank of New York, 121 So.3d 23 (Fla. 2013), the court concluded: “[T]he sanctions motion was not filed until after the action was dismissed. The voluntary dismissal ended the trial court’s jurisdiction. We therefore grant the petition as the trial court is without subject matter jurisdiction over the motion.”  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]

           Bank filed a mortgage foreclosure action against Tunison. The mortgage contained a clause for attorney’s fees to Bank on an action to enforce its rights under the mortgage. Tunison filed a motion to dismiss. Before the court could rule on Tunison’s motion to dismiss, Bank voluntarily dismissed the action without prejudice.

          Within 30 days after Bank dismissed the action, Tunison filed a motion for attorney’s fees. The trial court denied the motion on 2 grounds: (1) Tunison failed to raise the issue of fees in his motion to dismiss; and (2) Tunison failed to plead a statutory or contractual basis for fees in his motion. Tunison appealed.

          The Second DCA reversed. Regarding failure to plead entitlement to fees in the motion to dismiss, the appeals court noted that Stockman v. Downs, 573 So.2d 835 (Fla. 1991), requires that a party seeking fees plead entitlement to fees must plead them or the claim is waived. A motion to dismiss, however, is not a “pleading” for purposes of the Stockman rule. See Green v. Sun Harbor Homeowners’ Ass’n, 730 So.2d 1261 (Fla. 1998). “Because Mr. Tunison was never required to file an answer to the complaint, he did not waive his claim for attorney's fees.”

          Nor was Tunison’s fee claim waived because he did not specifically identify the statutory or contractual basis for his claim. “[A] party is not required to plead a ground for attorney’s fees with specificity.” See Caufield v. Cantele, 837 So.2d 371 (Fla. 2002).   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]

           A trial court imposed sanctions under F.S. 57.105 (2001) by ordering payment of attorney’s fees and costs. On appeal, the First DCA affirmed the fee award but reversed the award of costs. “An award of costs is not authorized under section 57.105. See Ferdie v. Isaacson, 8 So.3d 1246, 1251 (Fla. 4th DCA 2009) (explaining that section 57.105 allows for an award of reasonable attorney’s fees to the prevailing party, but makes no mention of costs).”  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]

          Defendant tobacco companies rejected Plaintiff’s offers of judgment. After prevailing at trial, Plaintiff moved for an award of fees and costs under F.S. 768.79 and Fla.R.Civ.P. 1.442. The trial court awarded fees and costs against defendants.

          The First DCA reversed. Plaintiff’s offers addressed claims for punitive damages by stating: “Punitive damages are included in the amount of this proposal, whether pled or unpled. Acceptance of this proposal will extinguish any present or future claims for punitive damages.” Both the statute and the rule, however, require the offeror to “state with particularity” the amount proposed to settle claims for punitive damages. Plaintiff’s offers, however, “did not specify an amount for settling either of the punitive damages claims, or indicate in any way what portion of the total sum he offered either defendant should be allocated to punitive damages.” Because the Supreme Court has consistently held that the statute and rule are to be strictly construed, Plaintiff’s offers could not support an award of fees and costs.

          The appeals court further noted: “There is no ambiguity in [Plaintiff’s] offers of judgment – it is clear the punitive damages claims would have been extinguished if the tobacco companies had accepted the offers – but the supreme court has made the test strict compliance, not the absence of ambiguity.”  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]

          Attorney’s fees were awarded against a lawyer under F.S. 57.105. The lawyer had a meritorious statutory defense but failed to preserve it. The First DCA noted that it “could not reverse on this unpreserved claim of error absent fundamental error.” After discussing the concept of fundamental error, the court declined to apply it in this case.

          “Because unauthorized awards of attorney’s fees appear to generally fall outside the category of what might constitute fundamental error in a civil case, we are obliged to deny relief. We are mindful that the fundamental error doctrine ‘functions to preserve the public’s confidence in the judicial system. Relief is granted for a fundamental error not because the party has preserved a right to relief from a harmful error, but because the public’s confidence in our system of justice would be seriously weakened if the courts failed to give relief as a matter of grace for certain, very limited and serious mistakes.’ Hagan v. Sun Bank of Mid-Florida, N.A., 666 So. 2d 580, 584 (Fla. 2d DCA 1996) disapproved of on other grounds by Murphy v. Int’l Robotic Sys., Inc., 766 So. 2d 1010 (Fla. 2000). While the fee award against [the lawyer] was in error and thereby may appear undeserved, public confidence could be diminished if appellate courts too freely corrected ‘fundamental errors’ to overturn awards of this type in civil cases, particularly when more timely and substantively-helpful advocacy in the trial court could have averted the matter.”  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]

          Plaintiffs sued Defendants in a dispute relating to a medical practice. Defendants made offers of settlement, which Plaintiffs rejected. Ultimately the court ruled in favor of Defendants and granted Defendants’ motion for attorney’s fees under the offer of judgment statute, F.S. 768.79, and F.S. 44.103(6). Plaintiffs appealed.

          The Second DCA reversed the fee award under F.S. 768.79. “[W]e agree with [Plaintiffs] that attorney’s fees are improper under the offer of judgment statute. The general offers made by [Defendants] both included language that each offer was to settle ‘all claims for damages . . . and all claims for equitable relief.’ Such language rendered these offers ineffective. See Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362, 374 (Fla. 2013) (holding that the offer of judgment statute ‘does not apply to an action in which a plaintiff seeks both damages and equitable relief[ ] and in which the defendant has served a general offer of judgment that seeks release of all claims’ even where the equitable claims lack serious merit). As such, the trial court erred in finding that [Defendants] were entitled to attorney’s fees based on their offers of judgment. See also Bull Motors, LLC v. Borders, 132 So.3d 1158, 1160 (Fla. 3d DCA 2013) (‘The offer of judgment statute . . . does not apply to cases that, as here, involve a general offer seeking release of all claims in the case, both equitable and monetary.’).”  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]

         Defendant sought attorney’s fees as a sanction under F.S. 57.105(4). He served a motion to dismiss on plaintiff’s counsel 21 days before filing his motion to dismiss the complaint and motion for fees. Plaintiff argued that the motion should not be granted because Defendant did not serve it in strict compliance with Fla.R.Jud.Admin. 2.516. The trial court agreed and denied the fee motion.

          The Fourth DCA affirmed. Defendant had served the fee motion on Plaintiff’s counsel by email; “the subject line of the e-mail stated: ‘6277 Caplan, Stacey vs. Quepasa Corporation, Inc.: Defendants’ Motion for 57.105 Sanctions.doc.’ The body of the e-mail stated: ‘See attached motion.’ Attached was a Word document entitled ‘Defendants’ Motion for 57.105 Sanctions.doc.’”

          Defendant’s motion did not comply with Fla.R.Jud.Admin. 2.516 in several respects. Specifically, the e-mail did not: (1) provide a PDF of the motion or a link to the motion on a website maintained by the clerk; (2) contain, in the subject line in all capital letters, the words ‘SERVICE OF COURT DOCUMENT,’ followed by the case number; (3) contain, in the body of the e-mail, the case number, name of the initial party of each side, title of each document served with that e-mail, and the sender’s name and telephone number.”

          The appeals court rejected Defendant’s contention that only substantial compliance with the rule, rather than strict compliance, was required. Because section 57.105 authorizes an award of fees in derogation of common law, it is strictly construed. The statute required service of the motion on the opposing party 21 days before filing it with the court, and “service” is defined in rule 2.516. The court summarized: “Litigants should not be left guessing at what a court will deem is ‘substantial compliance’ with the rules and statutes for the imposition of attorney’s fees as a sanction. Just as is the case with Rule 1.442 regarding proposals for settlement, a bright line rule requiring service in conformity with the mandatory provisions of the rule provides certainty to both parties as to whether attorney’s fees may be assessed if the court finds that the action or defense is frivolous. We hold that strict compliance with Florida Rule of Judicial Administration 2.516 regarding e-mail service of pleadings is required before a court may assess attorney’s fees pursuant to section 57.105, Florida Statutes.”   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]

          Exercising its conflict jurisdiction, the Florida Supreme addressed the question of when a request for attorney’s fees is timely in original proceedings under Fla.R.App.P. 9.100. The Court ruled that Fla.R.App.P. 9.400(b) does not apply to fee requests filed in Rule 9.100 original proceeding. Nor are the Court’s decisions in Stockman v. Downs, 573 So.2d 835 (Fla. 1991) and Green v. Sun Harbor Homeowners’ Ass’n, Inc., 730 So.2d 1261 (Fla. 1998), applicable because they dealt with trial-level fee requests. Rather, the Court concluded: “[W]e hold that rule 9.300, which governs appellate motions, controls. Rule 9.300 states: ‘Unless otherwise prescribed by these rules, an application for an order or other relief available under these rules shall be made by filing a motion therefor.’ The rule does not specify any time period in which motions must be filed. Rather, motions simply must be timely to provide the relief sought.”

          In the case before it, the Court concluded that the fee request filed pursuant to Fla.Stat. sec. 627.428 by a party litigating against an insurance company under the insurance contract was timely even though it was filed 6 days after the Fourth DCA granted its petition for writ of certiorari.  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]

          In a paternity action, Father was ordered to pay temporary fees of $83,670 to Mother. When he did not pay, Father was found to be in contempt of court. He was ordered to pay a $20,000 purge or face jail. At the same time, the court ordered Father’s lawyer “to review his trust account and turn over to the mother’s counsel any undisbursed funds held in trust for the father.”

          Lawyer appealed the portion of the order requiring him to disgorge any unearned fees held in his trust account for Father. The Third DCA affirmed.  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]

          Six years after final judgment was entered, a law firm moved to reopen the case to have its charging lien addressed. The court granted the motion. On petition for writ of prohibition, the Fourth DCA quashed the order.

          “A trial court lacks jurisdiction to entertain a charging lien where it has not been timely perfected; that is, filed before the trial court lost jurisdiction through settlement, dismissal or final judgment. . . . The trial court lost jurisdiction of this case by virtue of the final judgment. This is not a case, such as those relied upon by the firm, where there was fraud or collusion associated with the final judgment that resulted in the trial court’s loss of jurisdiction, thereby depriving an attorney of the opportunity to timely file the lien.” (Citations omitted.)

          The appeals court also noted that the firm had an adequate avenue through which to seek relief, having “already commenced a separate, new action against the clients, the clients’ attorney (formerly a member of the firm), and others.”  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]

       A dissolution and custody case was settled just before the final hearing and the parties orally stipulated to the terms. When Husband later refused to agree to entry of a written final judgment on the ground that the settlement was not in the children’s best interests, Wife sought an award of attorney fee sanctions under F.S. 57.105, arguing that “there was no justiciable issue of either law or fact in the former husband’s request to set aside the stipulated oral settlement.” The trial court awarded fees. Husband appealed.

       The Fifth DCA reversed. An oral settlement ordinarily would be binding according to contract principles. However, a court is not bound by an agreement of parents regarding child custody or support. Rather, the court must act in the best interests of the children. “Although section 57.105 fees have been awarded where there has been an unjustified refusal to honor the terms of a marital settlement agreement, see Koch v. Koch, 47 So.3d 320 (Fla. 2d DCA 2010), we cannot conclude that former husband’s attempt to set aside the custody agreement prior to issuance of the final judgment, on the basis that the trial court had an independent obligation to determine the children’s ‘best interests’ and repudiate the ‘preliminary’ agreement to the extent it was inconsistent with this standard, warrants such an award.”  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]

       Sitting en banc, the Third DCA receded from Royal Caribbean Corp. v. Modesto, 614 So.2d 517 (Fla. 3d DCA 1992), and decided to “follow federal maritime law, which holds that attorney’s fees may not be awarded pursuant to state fee-shifting statutes in an admiralty case.” The appeals court pointed out that federal substantive law governs in seaman cases brought in state court and that federal maritime law follows the “American Rule” on attorney’s fees. Florida’s offer of judgment statute, F.S. 768.79, is a “substantive state law.” The court cited cases making it clear that “federal courts applying federal maritime law reject the application of state fee-shifting statutes,” and concluded that “Florida’s offer of judgment statute conflicts with the general rule of federal maritime law that parties pay their own fees absent an exception, not applicable here.”  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]

        A trial court denied a motion by Citizens Property Insurance Corporation to recover fees based on a nominal proposal for settlement that was not accepted. The court concluded that Citizens did not make the offer in good faith. Citizens appealed.

       The Fourth DCA reversed, concluding that the trial court used the wrong standard in determining whether the proposal was made in good faith. The trial court apparently relied on a Third DCA case (Event Services America, Inc. v. Ragusa, 917 So.2d 882 (Fla. 3d DCA 2005)), which determined that a nominal offer was made in good faith only if the undisputed record strongly indicated that the offeror had “no exposure” in the case. In contrast, however, the Fourth DCA has adopted a more lenient, “nominal exposure” standard: the offer is made in good faith if the evidence shows that the offeror “had a reasonable basis to conclude that its exposure was nominal.” State Farm Mut. Auto Ins. Co. v. Sharkey, 928 So.2d 1263, 1264 (Fla. 4th DCA 2006) (quoting Connel v. Floyd, 866 So.2d 90, 94 (Fla. 1st DCA 2004)).  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]   
After a settlement in the wake of a $19 million jury verdict, Lawyer sought to enforce a charging lien for $114,250 in fees.  All stipulated that this amount was reasonable.  The trial court denying any fees to Lawyer.  The court’s rationale was that, although Lawyer was “a fine lawyer,” he was involved only at the early stages of the 12-year-long case and his efforts “were dwarfed by the subsequent efforts of successor counsel.”   
Lawyer petitioned the Third DCA for a writ of certiorari.  The appellate court quashed the order and remanded for entry of a fee award in the stipulated amount of $114,250.  The court stated:  “[A] client’s desire to hire a more aggressive lawyer with greater ‘expertise’ than the lawyer initially hired does not deprive the initially discharged attorney of entitlement to be paid for his or her work.  This would make charging liens all but superfluous.”  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 appealed from an order dismissing her quiet title action and imposing fees against her and her lawyer under F.S. 57.105(1).  The Fifth DCA affirmed the trial level fee sanction award, noting that “[h]er arguments on appeal are just as frivolous as her quiet title claim.”  The appeals court then “sua sponte order[ed] Badgley and her attorney to pay, in equal amounts, the reasonable attorneys’ fees and costs incurred by Appellees in this appeal, pursuant to section 57.105(1).”  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]   
Defendant in a malicious prosecution suit made a proposal for settlement to Plaintiff stating that he would settle the case for $100 “payable within ten (10) days of entry of the Order of Dismissal with Prejudice.”  Defendant prevailed on summary judgment, but the trial court denied his motion for fees based on the rejected proposal for settlement.  The Second DCA reversed and remanded for trial, pointing out that the issue of whether Defendant was entitled to a fee award was premature.   
Nevertheless, the appeals court did conclude that, contrary to the position argued by Plaintiff, the proposal for settlement was not ambiguous.  Plaintiff contended that the offer made “an illusory promise to pay” because, if Defendant failed to pay within the 10 days after dismissal, the trial court would not have jurisdiction to enforce the settlement agreement.  The Second DCA rejected this reasoning.  “Pursuant to the offer of judgment statute, ‘[u]pon filing of both the offer and acceptance, the court has full jurisdiction to enforce the settlement agreement.’  § 768.79(4), Fla. Stat. (2011); see also Mady v. DaimlerChrysler Corp., 59 So.3d 1129, 1133 (Fla. 2011) (stating that ‘a settlement produced pursuant to Florida's offer of judgment statute is subject to that court’s full continuing jurisdiction thereafter’).”  (Emphasis by Supreme Court.)  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]   
Insured sued his insurer, Geico, after Geico denied a claim for a loss to his auto.  Geico apparently had suspected that Insured was complicit in the theft of his own auto.  About a year after suit was filed, Geico paid the vehicle lienholder named in Insured’s policy.  Insured then filed a motion for attorney’s fees under Fla.Stat. sec. 627.428 (2008), arguing that Geico’s payment to the lienholder “was the functional equivalent of a confession of judgment.”  The trial court ultimately denied the motion for fees.  Insured appealed.   
The Third DCA reversed.  The court cited Wollard v. Lloyd’s & Cos. of Lloyd’s, 439 So.2d 217 (Fla. 1983), for the proposition that the payment of the disputed claim after suit is filed but before judgment is rendered is the functional equivalent of a confession of judgment.  “As a result, when an insurer voluntarily pays the disputed loss after suit is filed, ‘[section 627.428] must be construed to authorize the award of an attorney’s fee to an insured . . . even though technically no judgment for the loss claimed is thereafter entered favorable to the insured.’  Wollard, 439 So.2d at 218 (quoting Cincinnati Ins. Co. v. Palmer, 297 So.2d 96, 99 (Fla. 4th DCA 1974)).”   
The court rejected Geico’s argument that the payment was not a confession of judgment, but rather “represented the “purchase price” it paid to the lienholder in order to preserve the [auto] for evidence in its counterclaims.”  The court emphasized that “the sole fact that the claim was paid, without more, constitutes a settlement or judgment within the meaning of section 627.428.”  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]   
In a marriage dissolution case the trial court imposed fees against the Husband as sanctions under F.S. 57.105.  The Fifth DCA reversed because the order in question was a nonfinal, nonreviewable order not ripe for appeal.    The appellate court commented:  “We do note our concern about the trial court's findings relating to sanctions under section 57.105.  The trial court found the Husband’s position in the litigation to be without merit and unjustified but did not specify what constituted the unmerited position.  The trial court did make findings regarding the Husband's conduct during the marriage, as opposed to in the litigation, in abandoning the home.  The court found the Husband’s behavior ‘offensive.’  Nothing in section 57.105 allows for a sanction based on offensive behavior during a marriage.”  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]   
In a marriage dissolution case, the law firm representing Wife moved to withdraw and filed a motion for imposition of an attorney’s charging lien.  Wife objected on the ground that the lien would be premature because at that time “there had been no distribution of the property subject to an order and therefore no recovery obtained by the attorney or his firm.”  The trial court granted the firm’s motion.  Wife appealed.    The Fifth DCA reversed.  Although the firm perfected its right to seek a charging lien by providing timely notice of its intent to do so, “the Order under review was premature in that it issued during the pendency of the underlying dissolution action, i.e., before it could be determined that [the law firm’s] services resulted in a benefit to [Wife], in the form of assets awarded in the dissolution action, to which the charging lien could attach.”  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]   
Appellant’s motion for costs in the trial court was stricken as untimely filed under the 30-day rule contained in Fla.R.Civ.P. 1.525.  The Fourth DCA reversed, ruling that Fla.R.Civ.P. 1.525 does not apply in adversary probate proceedings.  See Fla. Probate Rule 5.025(d)(2).  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]  
In its original opinion, the Third DCA reversed an order on appeal and granted Albelo’s motion for an award of appellate attorney’s fees under section 57.105(1).  Southern Oak’s new counsel filed a motion for rehearing pointing out that Albelo had failed to satisfy the 21-day “safe harbor” provision of the statute.    The court agreed that the safe harbor provision was not satisfied, but nevertheless imposed 57.105 sanctions on Southern Oak.  “While we agree with Rehearing Counsel that Albelo failed to satisfy the requirements of the safe harbor provision, we respectfully disagree with Rehearing Counsel that the argument made to us was non-frivolous.  The twenty-one-day safe harbor provision does not apply to court-initiated sanctions.  See Koch v. Koch, 47 So.3d 320, 324-25 (Fla. 2d DCA 2010).  Accordingly, we now grant sanctions against Southern Oak and its initial counsel on our own motion.”  (Citation omitted.)  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]   
Lawyer was private court-appointed counsel in a criminal case.  He sought a fee in excess of the statutory rate ($27,165 for 362.5 hours of work at the statutory maximum rate of $75).  The trial court awarded $18,000, without determining a reasonable number of hours or an hourly rate.    Lawyer petitioned the Fourth DCA for a writ of certiorari.  The appellate court granted the petition because the trial court failed to make the necessary findings to support a fee award, and remanded the matter.    The appeals court also discussed the fact that, at the fee hearing, the trial court stated that it would be considering not only Lawyer’s fee request but also the court’s other budgetary matters – as the court said, “what’s being requested for everyone.”  In doing this, the lower court departed from the essential requirements of law.  The court cited Still v. Justice Administrative Comm’n, 82 So.3d 1168 (Fla. 4th DCA 2012) (court departed from essential requirements of law in considering state’s ability to pay such award given difficult economic times).  The court stated:  “By considering the effect of the award on the court’s budget, and then apparently reducing the amount requested because of the impact on the budget, without regard to the reasonableness of the fee, the court could effectively ‘confiscate’ the reasonable amount due to a court-appointed attorney in order to pay for other programs and needs of the court system.”  See Makemson v. Martin County, 491 So.2d 1109 (Fla. 1986).  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]   
During an insurer-insured title insurance dispute, the insurer made a proposal for settlement under the offer of judgment statute, Fla.Stat. sec. 768.79 (2010).  The insured did not accept the proposal.  After a favorable jury verdict, the insurer moved for attorneys’ fees under section 768.79.  The trial court awarded fees.    The insured appealed, contending inter alia that the court erred in awarding fees for travel time and time spent litigating entitlement to and amount of the fee award.  The Fourth DCA affirmed, except for time spent litigating the amount of the fee award.   
Regarding travel time, the court summarized:  “Although travel time is generally not compensable, travel time may be awarded as part of a sanction under certain circumstances, such as where a party was aware that his actions could result in unnecessary litigation.”  (Citation omitted.)  A fee award under section 768.79 is a “sanction against a party who unreasonably rejects a settlement offer” (citation omitted), and so the appellate court found no error in awarding fees for travel time.   
Regarding fees-for-fees, the court stated:  “Although fees incurred in litigating entitlement to attorneys’ fees under section 768.79 are authorized, fees incurred in litigating the amount of fees are not recoverable.”  (Citation omitted; emphasis by court.)  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]    
In a dissolution matter the trial court awarded attorney’s fees to the wife that included travel time for her counsel.  The husband appealed.    The Fourth DCA reversed.  “We acknowledge that there may be special circumstances in which travel fees may be taxed in a dissolution case.  [Citations omitted.]  But in this case no such special circumstances were shown.  There was no evidence that competent counsel could not be obtained in Palm Beach County, nor was there a finding that the travel time was required due to any excessive or vexatious litigation by the husband.”  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]   
Petitioner and his lawyer sought appointment of an emergency temporary guardian for an alleged incapacitated person.  The court appointed another lawyer to represent the alleged incapacitated person.  The court denied the petition for appointment of a temporary guardian.  The alleged incapacitated person died before a final determination of incapacity was made and, consequently, the petition to determine incapacity was dismissed.    The court entered an order awarding fees and costs to the lawyers and the 3 examining committee members, payable from the estate of the alleged incapacitated person.  The estate’s personal representative appealed.    The Second DCA reversed.  The appellate court summarized its conclusion:  “In sum, section 744.108 clearly applies only to circumstances where a guardianship has been established.  Section 744.331 appears to be the only applicable section to this case as it governs procedures to determine incapacity.  As the law currently stands, when a petition is dismissed for any reason, fees and costs may be assessed against the petitioner under section 744.331(7) if the petition was filed in bad faith.  See § 744.331(7)(c).  There is otherwise no provision made regarding the liability for fees and costs in the event a petition is dismissed.  Chapter 744 simply does not contemplate the payment of fees and costs from an alleged incapacitated person absent the establishment of a guardianship.”    The court went on to urge that the legislature “address the gap in the statute by specifying who pays the attorney's fees and the examining committee’s fees in this situation.”  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)).