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       Florida - FEES (including Attorney's Liens)

Court erred in including contingency fee multiplier in fee award where movant presented no evidence that relevant market required multiplier to obtain competent counsel.  [Added 5/20/24]

         Vargas prevailed in litigation against Foot & Ankle Center (“FAC”) and was awarded fees.  The fee award included a contingency fee multiplier of 1.5.  FAC appealed, contending that Vargas presented no. evidence that the relevant market required a contingency fee multiplier to obtain competent counsel.  The Sixth DCA agreed and reversed.

         The Supreme Court has ruled that the party seeking a contingency fee multiplier is required to present evidence of 3 factors:  “(1) whether the relevant market requires a contingency fee multiplier to obtain competent counsel; (2) whether the attorney was able to mitigate the risk of nonpayment in any way; and (3) whether any of the factors set forth in [Fla. Patient’s Comp. Fund v.] Rowe [472 So.2d 1145 (Fla. 1985)] are applicable, especially, the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client.”

         Vargas presented no evidence on the first point.  “While the record does contain testimony from Vargas’s expert witness, explaining that the purpose of the contingency fee multiplier is to incentivize attorneys to take difficult cases on a contingency basis and that Vargas could not afford to pay an attorney on an hourly basis, this testimony reveals nothing as to the relevant market or whether any local lawyers would have agreed to take Vargas’s case without a multiplier.”

         The appeals court remanded for entry of a judgment that does not include the application of a contingency fee multiplier.  Foot & Ankle Center of Florida, LLC v. Vargas, __ So.3d __ (Fla. 6th DCA, No. 6D23-665, 4/19/2024), 2024 WL 1688836.

Court erred in awarding prevailing party fees to party who did not comply with time requirements of Fla.R.Civ.P. 1.525.  [Added 5/16/24]

         Homeowners Olurotimi and Jacqueline Phillips prevailed in an arbitration proceeding against homebuilder Lyons Heritage.  Lyons Heritage unsuccessfully sought to have the arbitration award vacated or modified in circuit court.  The court “entered a final judgment in favor of the Phillipses that made no mention of attorneys' fees or costs.  Over one year later, the Phillipses filed a motion requesting an award of fees and costs against Lyons Heritage based on the final judgment.”  A successor judge awarded fees and costs to the Phillipses, reasoning that their pleadings and motion for summary judgment had requested fees and costs and the judgment granted the relief they sought.  In the successor judge’s view, this meant that the Phillipses did not have to file a motion for fees within the 30-day period specified in Fla.R.Civ.P. 1.525.  Lyons Heritage appealed.

         The Second DCA reversed, concluding that “the Phillipses were required to comply with the time requirements of” rule 1.525.  There is a recognized exception to the rule when a “trial court has determined entitlement to attorneys’ fees and costs in its final judgment, but reserves jurisdiction only to determine the amount in attorneys’ fees and costs that is owed.”  AmerUs Life Insurance v. Lait, 2 So.3d 203,, 207-08 (Fla. 2009).  In the instant case, however, the “final judgment made no finding that the Phillipses were entitled to an award of attorneys’ fees and costs, and it did not reserve jurisdiction to address the matter.”  The Second DCA did not view the language of the final judgment as broadly as the successor judge did.  Accordingly, the appeals court “decline[d] to extend the reach of the AmerUs exception to rule 1.525 when the final judgment fails to specifically determine entitlement to attorneys’ fees and costs.  Therefore, the successor judge erred in clarifying the final judgment and in awarding fees and costs to the Phillipses.”  Lyons Heritage of Tampa, LLC v. Phillips, __ So.3d __ (Fla. 2d DCA, No. 2D2023-1313, 4/17/2024), 2024 WL 1669406.

Party’s delay in scheduling hearing on amount of fees to be awarded did not deprive court of jurisdiction to award fees.  [Added 5/10/24]

         Plaintiff Berlin sued defendant HCA.  The trial court dismissed the suit.  HCA filed a motion for statutory fees within 30 of the entry of the dismissal order.  The Fourth DCA affirmed the dismissal and conditionally granted appellate fees to HCA.  On remand the parties jointly moved to bifurcate fee entitlement from the amount of fees to be awarded.  The court granted the motion and ordered the parties to set a fee entitlement hearing within a specified number of days and, if entitlement was decided for HCA, to conduct discovery and set an evidentiary hearing for the amount of fees within 90 days thereafter.

         Subsequently the court entered an order extending time in which to conduct the entitlement hearing, but left unchanged all other deadlines in the original order.  The entitlement hearing was held and the court ruled for HCA.  Over a year later, HCA set the hearing for determining the amount of fees.

         At the hearing the trial court questioned whether it had jurisdiction to hold the amount hearing “because HCA had failed to set the hearing for that purpose ‘within 90 days’ after the determination of fee entitlement as required by the prior bifurcation order.”  The court then determined that HCA’s “unreasonable tardiness” caused the court to lose jurisdiction.  It denied all fees, and HCA appealed.

         The Fourth DCA reversed.  Fla.R.Civ.P. 1.525 requires that a motion to tax fees or costs must be served “no later than 30 days after filing of the judgment.”  The appeals court explained that “rule 1.525’s only jurisdictional time limit is the thirty-day time frame for filing a motion seeking fees or costs.  Rule 1.525 imposes no jurisdictional time limit for the scheduling of a hearing on the matter of the amount to be awarded after a motion seeking fees or costs has been timely filed.  The trial court therefore erroneously determined that it lost jurisdiction to determine the amount of fees to be awarded to HCA.”  HCA Health Services of Florida, Inc. v. Berlin, __ So.3d __ (Fla. 4th DCA, No. 4D2022-2652, 4/17/2024), 2024 WL 1644474.

Third DCA addresses interplay between alternative recovery clause in fee agreement and proposal for settlement.  [Added 5/6/24]

         Health Diagnostics sued in small claims to recover benefits allegedly due to a patient under a USAA insurance policy.  Health Diagnostics prevailed at trial.  The appeals court reversed in favor of USAA, granted USAA’s motion for fees, and directed the trial court to “determine the amount of a reasonable fee.”
          On remand, when USAA moved for trial-level fees Health Diagnostics sought production of written fee agreements or invoices.  USAA disclosed that it had a global retainer agreement (the “MEA”) but objected to production of it on attorney-client privilege grounds.  USAA did  produce a $4000 fee invoice.
          The trial court reviewed the MEA in camera and confirmed that it was privileged, but did permit a one-time inspection of it.  The MEA contained an alternative fee recovery provision, which in cases in which USAA prevailed provided for listed hourly rates or “the amount awarded by the Court as a reasonable fee, whichever is greater.”
          Health Diagnostics contended that USAA should either get no fees or be capped at $4000.  The court denied that motion, ruling that the invoice did not preempt the MEA and that Health Diagnostics did not have standing to challenge the fee arrangement, consistent with Rule 4-1.5(e)(1) (“The fact that a contract may not be in accord with these rules is an issue between the lawyer and client and a matter of professional ethics, but is not the proper basis for an action or defense by an opposing party when fee-shifting litigation is involved.”).  After an evidentiary hearing at which both parties’ experts testified, the trial court “that USAA’s attorneys were operating under a ‘verbal flat fee agreement,’ and awarded fees in the amount of $4,000.”  The court awarded no fees for the appeal.  USAA appealed.
          The Third DCA reversed.  The relevant statute, F.S. 768.79, provides that when the statutory conditions are met a defendant who serves a proposal for settlement “shall be entitled to recover reasonable costs and attorney’s fees.”  An alternative fee recovery clause is permissible in statutory fee-shifting cases and does not affect the application of F.S. 768.79.  The Third DCA concluded:  the court was required to award reasonable appellate fees, regardless of the fee arrangement; and, as to trial fees, the alternative fee recovery clause in USAA’s fee agreement was valid and enforceable.  USAA Casualty Ins. Co. v. Health Diagnostics of Fort Lauderdale, LLC, __ So.3d __ (Fla. 3d DCA, No. 3D22-2032, 4/17/2024), 2024 WL 1644213.

Order awarding fees against party’s lawyer under F.S. 57.105 reversed due to lack of notice to lawyer.  [Added 4/25/24]

         Day filed a lawsuit pro se against a lawyer, Fleck, alleging that Fleck perpetrated a fraud on the court.  Fleck filed a motion for F.S. 57.105 fees against Day.  The court dismissed the suit and granted 57.105 fees to Fleck against Day.

         Day appealed, still acting pro se.  Fleck argued that the appeal was without merit and sought appellate fees under section 57.105.  At that point lawyer Fantauzzi filed a notice of appearance in the appeal.  No new motion for fees related to Fantauzzi was filed.  The appeals court affirmed the judgment and awarded appellate fees.  The case was remanded for the trial court to determine the amount of fees.  A few days later Fantauzzi filed a motion to withdraw in the appeal.

         The trial court scheduled a hearing on Fleck’s motions for fees.  Prior to the hearing, Fantauzzi moved to withdraw.  Fleck filed nothing indicating that he would be seeking a fee award against Fantauzzi.  At the hearing, which Fantauzzi did not attend because he had withdrawn, the trial court awarded Fleck $21,060 in fees – to be paid in equal parts by Day and Fantauzzi.

         Fantauzzi filed a motion for relief from the judgment, which was denied. Fantauzzi appealed.   The Second DCA reversed, ruling that the judgment awarding fees as a sanction against Fantauzzi was void for lack of due process.  “Fantauzzi was not provided with proper notice for attorney's fees to be awarded against him under section 57.105, violating his due process rights.”  Fantauzzi v. Fleck, __ So.3d __ (Fla. 2d DCA, No. 2D23-1390, 4/3/2024), 2024 WL 1422678.

Joint proposal for settlement under F.S. 768.79 not invalid even though it did not apportion offer between the offerors, because one offeror’s liability was only constructive.  [Added 4/14/24]

         “ZGA” sued “Webjet” and “GOL” in connection with a proposed sale of an aircraft.  ZGA’s complaint alleged that GOL was constructively liable for ZGA’s alleged damages.  Defendants served a proposal for settlement on ZGA offering to settle the claims against Webjet for $75,000.  ZGA did not accept.

         At trial the court ruled in defendants’ favor.  Defendants then moved for fees under F.S. 768.79 and Fla.R.Civ.P. 1.442 based on the proposal for settlement.  The trial court denied the motion, determining that defendants’ proposal for settlement “did not strictly comply with the requirements of rule 1.442 because it was a joint proposal that failed to apportion the amount offered between GOL and Webjet.”  Defendants appealed.

         The Third DCA reversed.  “Because Appellants’ proposal for settlement was plainly a joint proposal, rule 1.442(c)(3) required the proposal to “state the amount and terms attributable to each party.” But rule 1.442(c)(3)’s apportionment requirement is not applicable “when a party is alleged to be solely vicariously, constructively, derivatively, or technically liable, whether by operation of law or by contract[.]” Fla. R. Civ. P. 1.442(c)(4) (emphasis added).”  Because ZGA’s complaint alleged that

         GOL was constructively, rather than directly, liable for Webjet’s breach of contract, the rule 1.442(c)(4) exception to the apportionment requirement applied.  Webjet Linhas Aereas S.A. v. ZGA Aircraft Leasing, Inc., __ So.3d __ (Fla. 3d DCA, No. 3D22-1736, 3/20/2024), 2024 WL 1183572.

Proposal for settlement conditioned on execution of separate agreement that was not provided was ambiguous and would not support fee award under F.S. 768.79 and Fla.R.Civ.P. 1.442.  [Added 4/3/24]

         The two Defendants in litigation submitted separate but substantively identical proposed for settlement to Plaintiff, which did not accept the proposals.  At the close of trial the court granted Defendants’ motion for directed verdict.  The court subsequently granted Defendants’ motion to award fees against Plaintiff.

         Plaintiff appealed, contending that the proposals for settlement were ambiguous.  The Second DCE agreed and reversed.

         Defendants’ proposals for settlement required execution of a separate confidential settlement agreement.  The proposals did not specify or summarize the terms of the separate agreement, and the separate agreement was not attached to the proposals.  This meant that the proposals were not sufficiently clear and definite to allow Plaintiff to make an informed decision without needing clarification.  As a result, the appeals court concluded that “the proposals for settlement here are ambiguous and do not comply with [Fla.R.Civ.P.] 1.442.”  Advantage Limousine, LLC v. Koutsos, __ So.3d __ (Fla. 2d DCA, No. 2D22-257, 3/6/2024), 2024 WL 947499.

Court erred in awarding discharged lawyer charging lien in amount that exceeded fee provided for in retention agreement.  [Added 3/4/24]

         A law firm (“Former Counsel”) had a contingent fee agreement with Client.  The agreement provided that, if discharged by Client, Former Counsel would be entitled to “the same percentages of any recovery as noted above [in the agreement] based on the last settlement offer prior to his discharge, or based on the verdict or award if a verdict or award has been rendered prior to the attorney’s discharge.”  At the time of discharge, the opposing party had offered a $200,000 settlement.

         Client hired successor counsel and ultimately settled the case for $550,000.  At a hearing on Former Counsel’s charging lien, the court determined that successor counsel was entitled to a fee of $220,000 and that Former Counsel was entitled to a charging lien in the amount of $110,000, which was to be paid out of successor counsel’s fee.  Client appealed.

         The Fourth DCA reversed.  A lawyer who is discharged from a contingent fee agreement is entitled to the reasonable value of the services rendered prior to discharge, limited by the maximum fee allowable under the contract.  The appeals court concluded:  “[F]ormer counsel’s retainer agreement entitled it to 40% of the last settlement offer obtained prior to discharge.  As the only settlement offer obtained by former counsel prior to discharge was for $200,000, the maximum fee allowable under former counsel’s retainer agreement was $80,000, not $110,000 as awarded.”

         In a footnote, the court also pointed out that it was error for the trial court to reduce successor counsel’s fee to allocate for Former Counsel’s fees.  See Perlman, Bajandas, Yevoli & Albright, P.L. v. Atlas Holding Corp., 2023 WL 5759267 (Fla. 4th DCA, Sept. 6, 2023).  This error, however, had not been preserved.  Palmer v. Felicetti Law Firm, PLLC, __ So.3d __ (Fla. 4th DCA, No. 4D2023-0493, 2/21/2024), 2024 WL 696639.

Law firm’s default judgment against former client for unpaid fees vacated as void because circuit court lacked subject-matter jurisdiction due to amount in controversy.  [Added 2/15/24]

         Law Firm sued Former Client in circuit court over an unpaid retainer fee of $20,000.  Former Client failed to respond to the complaint and Law Firm was granted a default judgment of $20,000 plus a small amount of pre-judgment interest.  Several months later Former Client moved to set aside the default judgment, alleging that it was void because the trial court lacked subject-matter jurisdiction.  The trial court denied the motion, and Former Client appealed.

         The Third DCA reversed.  Although Law Firm’s complaint contained a “boilerplate, conclusory” assertion that the amount in controversy exceeded $30,000, the specific allegations in the complaint showed that Law Firm sought less than $30,000 – which is the jurisdictional limit for circuit court.

         The appeals court concluded:  “Because there is no good faith basis supporting the law firm’s allegation that the amount in controversy exceeded $30,000, and because the facts alleged in the complaint demonstrate a claimed amount of less than $30,000, the circuit court lacked subject-matter jurisdiction over the matter.  Accordingly, we vacate the default final judgment and remand this matter to the trial court for further proceedings, which may include dismissal without prejudice or transfer to county court, as appropriate.”  Lazow v. Amber B. Glasper, P.A., __ So.3d __ (Fla. 3d DCA, No. 3D23-0798, 1/31/2024), 2024 WL 358000.

Judge of Compensation Claims erred in awarding fees based on customary hourly rate instead of contingent fee amount agreed to by claimant and his lawyers.  [Added 2/12/24]

         Claimant was the victim of a tragic accident in 1993.  Litigation over his right to certain medical benefits continued for decades and Claimant “rotated through at least six attorneys.”  The Judge of Compensation Claims (“JCC”) stated called the case “the most complex and delicate case” ever before him.
          In 2018 the parties settled for $13,500,000 after a 10-day mediation.  Lawyer Rudolph represented Claimant.  Claimant (through his power of attorney) and Rudolph jointly petitioned for approval of a fee of $1,330,000 (9.85% of the $13,500,000 settlement).  Out of this amount, Rudolph would satisfy the fee and cost liens of Claimant’s prior lawyers in amounts specified in the petition.
          The JCC approved the amounts for the prior lawyers but reduced Rudolph’s fee from the requested $805,000 to $123,000.  The JCC stated that the requested amount was “about $4000 hourly” and shocked his conscience.  Rudolph appealed.
          The First DCA reversed.  At the time of the accident, the law provided for an award of fees based on a sliding percentage scale.  The law provided that the JCC could consider a deviation from the scale based on listed factors.  The First DCA had held that deviation should occur only in “exceptional circumstances” where the scale amount was “manifestly unfair.”
          Rudolph contended there was no exception circumstances justifying a downward departure from the “customary fee,” and the appeals court agreed.  “[T]he JCC’s hyperfocus on a reasonable hourly rate reduced the fee analysis to nothing more than a simple mathematical formula (hourly rate x number of hours) and strayed from the contingent fee arrangement inherent in the statute.  Lost in the JCC’s well-intentioned calculation was any recognition that the stipulated fee amount was already substantially less than what the statute deemed as presumptively fair.”  Ultimately, “the evidence on this matter was that both the fee amount claimed by Rudolph and the less-than-guideline global fee amount were reasonable.”  Rudolph v. Smith, __ So.3d __ (Fla. 1st DCA, No. 1D2022-1627, 1/24/2024), 2024 WL 252206.

Court abused discretion by scheduling but not holding evidentiary hearing before determining amount of fees to be awarded.  [Added 1/25/24]

         Fuller and Torcise were engaged in health care surrogate litigation.  They agreed to a settlement.  Each side sought attorney’s fees.  The court bifurcated entitlement to fees from determination of the amount of fees to be awarded.  The court found each side entitled to fees.  Fuller requested an evidentiary hearing, which the court scheduled.  The evidentiary hearing was never held.  The court requested proposed orders from each party.  The court adopted Torcise’s proposed order and awarded Torcise more than $800,000 in fees.  The court awarded Fuller only $6718 of the more than $742,732 she requested.  Fuller appealed.

         The Third DCA reversed.  Fuller had requested an evidentiary hearing, and never waived  her right to that hearing.  “Because the trial court abused its discretion by failing to conduct an evidentiary hearing before deciding the reasonableness of fees in violation of due process, we reverse the trial court’s orders awarding attorney’s fees and remand with instructions to conduct an evidentiary hearing on the reasonableness of fees.”  Fuller v. Torcise, __ So.3d __ (Fla. 3d DCA, Nos. 3D23-0180, 3D23-1082, 1/3/2024), 2024 WL 25200.

Third DCA affirmsn order granting charging lien to divorce litigant’s former counsel, noting that court was authorized to grant lien in amount exceeding fees magistrate ordered litigant’s spouse to pay her.  [Added 1/17/24]

          In family law litigation, the magistrate awarded Wife fees and costs of $32,818 to be paid by Husband.  (Wife was seeking $68,871.)  Wife’s former counsel moved to enforce a charging lien.  Wife objected to an award of any amount exceeding the amount awarded as fees from Husband, arguing that the magistrate had found such fees to be excessive and unreasonable.  The court “heard testimony from the Wife’s counsel, his expert witness, and the Wife’s son, but not the Wife herself.”  The court found that Wife’s counsel was entitled to a charging lien in the amount of $38,281.
          Wife appealed, contending that “the trial court erred as a matter of law in granting the charging lien for additional attorney’s fees and costs in excess of those awarded to her by the magistrate during the divorce proceedings.”  The Third DCA affirmed.
          The appeals court noted that “two distinct concepts” were involved:  the trial court’s determination of fees that one spouse pays to indemnify the other; and a lawyer’s right to recover fees against his or her client.  The court pointed out that “the magistrate’s award of fees to the Wife to be paid by the Husband determined only the obligation between the Wife and Husband as it pertained to attorney’s fees and costs.  It did not preclude the Wife’s counsel from pursuing a charging lien against the Wife for the remaining attorney’s fees and costs allegedly owed.  The magistrate’s resolution of the equities between the Wife and Husband had no bearing on counsel’s contractual rights under the contract with his client, the Wife.”
          The court affirmed “because the record on appeal is insufficient for us to determine the propriety of the charging lien amount as we do not have transcripts of the proceedings.”  Morales v. Morales, __ So.3d __ (Fla. 3d DCA, No. 3D23-0094, 1/3/2024), 2024 WL 24787.

Court erred in denying attorney’s fees in Fair Labor Standards Act case after concluding that neither party prevailed.  [Added 12/14/23]

         Employee sued Employer for unpaid overtime under the Fair Labor Standards Act (FLSA).  The jury returned a verdict of $808 in unpaid overtime for Employee.  Employer was successful on other aspects of the case, prevailing on two state law claims.  The trial court denied Employee’s motion for fees, concluding that Employee had only “minimally prevailed on the FLSA action.”  Employee appealed.

          The Fourth DCA reversed on the issue of attorney’s fees.  “Reliance on the prevailing party standard in the assessment of attorney’s fees was error.  FLSA mandates that a plaintiff who recovers a judgment in his/her favor shall be allowed a ‘reasonable attorney fee.’”  (Emphasis by court.)  Serrao v. Mantis Funding, LLC, __ So.3d __ (Fla. 4th DCA, No. 4D2022-1467, 11/22/2023), 2023 WL 8103118.

Award of fees based on rejected proposal for settlement reversed based on non-compliance with F.S. 768.79 and Fla.R.Civ.P. 1.442 because proposal did not address all damages awardable in action, including counterclaims.  [Added 11/10/23]

         Tenant was evicted for non-payment of rent.  Tenant then sued Landlord alleging constructive eviction and other claims.  Landlord counterclaimed for negligent maintenance.  Landlord served a proposal for settlement offering Tenant $1500 if she dismissed her claims against him.  The offer was rejected.  At trial, the jury found for Landlord on the claims and the counterclaims, awarding Landlord $10,000 on his counterclaim and Tenant nothing.  The court granted Landlord’s motion for fees based on the rejected proposal for settlement.  Tenant appealed.

         The First DCA reversed because Landlord’s proposal for settlement “only applied to some damages in the action and failed to ‘state that the proposal resolves all damages that would otherwise be awarded in a final judgment in the action’ as required by Rule 1.442” (emphasis added).  The terms of the proposal addressed only Tenant’s claims.  The proposal “didn’t address his counterclaims, or ‘all damages’ awardable in the final judgment.  And [Landlord]’s proposal wouldn’t have ended the litigation.”  Knapp v. Harling, __ So.3d __ (Fla. 1st DCA, No. 1D2022-2256, 1/1/2023), 2023 WL 7177989.

Third DCA affirms orders imposing fees as sanctions for 2 instances of discovery misconduct.  [11/3/23]

         Vargas sued Costco alleging negligence in a slip and fall case.  The parties had disputes over two discovery issues.  In the first, Costco objected to an interrogatory.  After the court overruled Costco’s objection, Costco answered the interrogatory by simply stating, “See objection previously filed.”  Vargas moved for fees and the court awarded them against Costco for “failing to comply with the prior order.”

         In the second situation, Costco’s corporate representation was being deposed remotely.  When asked, the witness stated that the only document he had reviewed was one of the trial court’s orders.  When asked to provide the factual basis for one of Costco’s affirmative defenses, the witness began reading from a document.  Vargas’s counsel asked about the document.  The witness testified that it was prepared by Costco’s counsel and that the witness intended to answer questions by reading from it.  The question about the factual basis was asked again, and the witness answered by reading from the document.  At that point Costco’s lawyer interrupted to state that the witness read the wrong answer.  Vargas’s lawyer eventually terminated the deposition and brought the dispute to the court by moving for fees.

         Costco claimed that the document was provided to the witness because it tracked the answers to interrogatories and the wanted the witness’s testimony to be consistent with those answers.  The trial court imposed fees.

         The Third DCA affirmed both orders on appeal, concluding that the trial court did not abuse its discretion.

         Regarding the first issue, the court stated:  “After being ordered o provide Vargas with better answers, Costco simply renewed its prior objection that had already been overruled. Costco explains this action as the error of a paralegal rather than the attorney who submitted the answers. We find no abuse of discretion in the trial court declining to accept this explanation.”

         As to the second issue, the court pointed out two problems:  “(1) the document that the witness intended to consult during the deposition (indeed to read from) was not disclosed when opposing counsel asked for such documents; and (2) Costco’s attorney coached the representative during the opposing counsel’s examination to provide only the answers the lawyer had written down for him.”  The court rejected Costco’s explanation, stating:  “These problems are in no way justified by Costco’s desire to ensure its representative’s answers stayed consistent with Costco’s answers to interrogatories.  To the contrary, exploring such inconsistencies is one function of a deposition.”  Costco Wholesale Corp. v. Vargas, __ So.3d __ (Fla. 3d DCA, No. 3D22-585, 10/25/2023), 2023 WL 7006405.

Prevailing party fee award  upheld even though parties against whom fees were awarded lacked standing to sue under contract.  [Added 10/25/23]

         Hess and Clearwater Beach Company (collectively “Plaintiffs”) entered contracts with PMG-S2 Sunny Isles (“PMG”) to buy pre-construction condo units and made a $6.1 million deposit.  Plaintiffs assigned their “rights, title, interests and obligations” under the sales contracts to 3 entities (the “Muse entities”).  The Muse entities failed to timely close on the units, and PMG served gave of default and terminated the contracts.  Plaintiffs sued for recission and breach of contract.  The trial court granted PMG’s motion for summary judgment, ruling that Plaintiffs lacked standing to assert their claims under the contract due to the assignment.

         The trial court awarded prevailing party fees to PMG.  Plaintiffs appealed, contending that the trial court erred in awarding fees because it had “previously determined [Plaintiffs] lacked standing to sue under the Purchase Agreements because of the assignment of those agreements to the Muse entities.”  The Third DCA rejected this argument and affirmed.

         The award was proper notwithstanding the assignment due to the plain language of the assignment agreement between Plaintiffs and the Muse entities, which provided:  “Notwithstanding the Assignment by the Assignor [Hess and Clearwater] to Assignee [the Muse entities], the Assignor shall remain liable to Seller [PMG] under the terms and conditions of the Purchase Agreement until the closing of the transaction under the Purchase Agreement.”  (Emphasis by court.)  The transactions never closed.  The appeals court explained:  “This express term of the Purchase Agreement – to which [Plaintiffs] remained bound ‘[n]otwithstanding the Assignment of the Purchase Agreement’ to the Muse entities – meant that if the transaction failed to close, and if PMG prevailed in the litigation under the Purchase Agreement, Hess and Clearwater ‘shall remain liable’ for payment of PMG’s attorney’s fees and costs.”  Hess v. PMG-S2 Sunny Isles, LLC, __ So.3d __ (Fla. 3d DCA, No. 3D21-1547, 10/4/2023), 2023 WL 6450463.

Court erred in denying defendant’s motion for fees under F.S. 768.79 where summary judgment was granted on 2 of 3 counts in plaintiffs’ complaint and the plaintiffs then voluntarily dismissed case.  [Added 10/3/23]

         Plaintiffs sued Defendant in a 3 count complaint.  Defendant served proposals for settlement on both Plaintiffs under F.S. 768.79.  The proposals were not accepted.  The trial court granted Defendant’s motion for summary judgment on counts 1 and 3, but denied summary judgment as to count 2.  Plaintiffs then voluntarily dismissed the case.

         The trial court denied the motion for fees filed by Defendant based on rejection of the proposals for settlement.  Defendant appealed.

         The Fifth DCA reversed in an opinion that discussed the authorities relied on by the parties.  The court summarized:  “We agree with [Defendant] that MX Investments [v. Crawford, 700 So.2d 640 (Fla. 1997)] is factually distinguishable from the instant case because there the plaintiffs voluntarily dismissed the entire action and none of the claims were adjudicated on the merits.  We likewise agree that the facts in this case are identical to those in Scherer [Construction & Engineering of Central Florida, LLC v. Scott Partnership Architecture, Inc., 151 So.3d 538 (Fla. 5th DCA 2014)], which controls the outcome of this case.  [In Scherer, the appeals court affirmed the portion of the trial court’s order awarding fees on the claim on which the movant prevailed on summary judgment.]  Therefore, based on Scherer, we reverse the order denying Appellant’s motion to tax costs and attorney’s fees and remand for entry of an order awarding attorney’s fees to Appellant on counts one and three of her complaint.”  Kuthiala v. Goldman, __ So.3d __ (Fla. 5th DCA, No. 5D23-121, 9/15/2023), 2023 WL 5986480.

Public adjuster’s contract with homeowners void as against public policy because it violated Florida law.  [Added 9/29/23]

          Cliff and Jane Fleming hired a public adjuster (“Monarch”) to handle their insurance claim following a hurricane.  Monarch’s contract provided that it would be paid 10% of any insurance recovery as its fee, and further provided that if the matter went to appraisal the Flemings would appoint Monarch as their appraiser.  If appointed as an appraiser, Monarch would act solely as the appraiser and not as the adjuster in exchange for another 10% of the recovery.
          Dissatisfied with Monarch’s lack of progress after a year, the Flemings terminated Monarch.  After they settled with their insurance carrier, Monarch asserted that it was entitled to a fee.  The Flemings filed a declaratory judgment action in Bay County.  Monarch sought to transfer venue to Dade County pursuant to a provision in the contract.  The Flemings responded by arguing that the entire contract was unenforceable because Monarch had contracted for a fee in excess of that allowed under Florida law.  The trial court agreed and ruled that the contract was unenforceable.  Monarch appealed.
          The First DCA affirmed.  F.S. 626.854 imposed a 10% cap on a public adjuster fee.  The court concluded that the adjuster fee and the appraiser fee taken together amounted to more than 10% and so violated the law.  Monarch contended that the statute applied only to the adjuster portion of its contract fee.  The court rejected Monarch’s argument.  “The Flemings hired Monarch as their public adjuster.  In exchange for Monarch’s services as a public adjuster, the contract entitled Monarch to two things:  (1) ten percent of the insurance recovery, and (2) a promise that the Flemings would appoint Monarch as their appraiser in the event of an appraisal, entitling Monarch to another ten percent of the recovery.  Even if the added ten percent fee counts as an ‘appraiser fee’ instead of a ‘public adjuster fee’ as Monarch suggests, the contract would still violate the statute.  The Flemings’ promise to appoint Monarch as their appraiser, on its own, is a ‘thing of value’ that exceeds the ten percent cap.  See [Cintas Corp. No. 2 v.] Schwalier, 901 So.2d [307 (Fla. 1st DCA 2005)] at 309 (‘A promise, no matter how slight, qualifies as consideration if the promisor agrees to do something that he or she is not already obligated to do.’).”  Monarch Claims Consultants, Inc. v. Fleming, __ So.3d __ (Fla. 1st DCA, No. 1D22-601, 9/6/2023), 2023 WL 5734322.


Court erred in denying motion for sanctions under F.S. 57.105(1)(a).  [Added 9/26/23]

          Disgruntled customer Rigney sued AT&T Mobility for fraud, deceptive trade practices, and other counts alleging that AT&T sold him an unlimited data cellular phone plan and then “throttled” his data.  AT&T filed a motion for judgment on the pleadings, attaching a copy of the phone contract showing that it was not an unlimited plan.  AT&T followed up by serving a motion for sanctions under F.S. 57.105(1)(a).
          The orally trial court granted AT&T’s motion for judgment on the pleadings with prejudice, but before the ruling was reduced to writing Rigney filed a notice of voluntary dismissal.  Ultimately the court denied the sanctions motion.

         In a lengthy and detailed opinion, the Third DCA reversed.  The trial court erroneously focused on subsection (3)(a) of the statute, which applies when sanctions are sought under subsection (1)(b).  AT&T’s motion, however, was based on subsection (1)(a), which applies when “the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) was not supported by the material facts necessary to establish the claim or defense.”

 Further, the trial court erred in not finding, pursuant to section 57.105(1)(a), that Rigney and his lawyer knew, or should have known that Rigney’s claim was not supported by the material facts necessary to establish the claim.

         The Third DCA concluded that Rigney and his lawyer were subject to sanctions under F.S. 57.105(1)(a) and remanded the case “an evidentiary hearing to determine the amount of reasonable attorney’s fees, including prejudgment interest, to be paid to the defendant in equal amounts by the plaintiff and the plaintiff’s counsel, incurred in the defense of the plaintiff’s data throttling claim from the date of service of the statement of claim upon the defendant through the filing date of the defendant’s notice of appeal.”  AT&T Mobility, LLC v. Rigney, __ So.3d __ (Fla. 3d DCA, No. 3D21-2261, 9/6/2023), 2023 WL 5731791.

Fourth DCA addresses law that applies when original counsel and successor counsel are both owed fees from client in contingent fee case, ruling that it was error to limit total fee paid to both firms to contingent fee percentage.  [Added 9/21/23]

         Clients hired a law firm (“former counsel”) to represent them as plaintiffs on a contingent fee basis.  Former counsel was to receive 23% of the recovery if the case settled before summary judgment.  This fee purportedly applied even if clients switched lawyers.

         Clients did switch lawyers after former counsel worked approximately 2254 hours on the case.  Former counsel filed a charging lien.  Clients hired two new law firms (“successor counsel”) pursuant to a contingent fee agreement that also apparently provided for a 23% fee.  Successor counsel settled the case 18 months later for a confidential amount.

         Former counsel moved to enforce its charging lien.  The trial court entered an agreed order allowing successor counsel to disburse all funds in excess of the amount claimed by former counsel.  “Successor counsel then withdrew from the case and the clients hired new counsel to litigate the charging lien.”

         At the trial on the charging lien, the court found that former counsel had performed most of the work that resulted in the settlement.  The court ruled that the charging lien was valid, rejecting Clients’ arguments to the contrary.  The court found that former counsel was entitled to a sum certain for its fees.

         The court went further in its order, ruling that “the 23% contingency fee was a combined cap on fees for both former and successor counsel” (emphasis by court).  The court also concluded that successor counsel should not have disbursed the funds, and ordered that the disbursement of fees to successor counsel be “corrected” and redeposited into one of the successor counsel firm’s trust account.  (The court also directed that each firm’s retainer agreement be sent to the Florida Bar for determination of compliance with Bar rules.)

         Clients and successor counsel appealed.  There were 4 appeals that were consolidated before the Fourth DCA.  In two appeals, the appellate court affirmed the trial court’s rejection of Clients’ challenges to the fee award to former counsel.  The court “agree[d] with successor counsel, however, that the trial court erred in ordering successor counsel to disgorge fee payments” and reversed in the other 2 appeals on that ground.

         The trial court first erred by entering a judgment against successor counsel, when successor counsel was not a party to the appeals.  This deprived successor counsel of due process.  “As successor counsel was not named or otherwise joined as a party in the charging lien action, the trial court could not directly order successor counsel to disgorge fees in favor of former counsel.”

         The trial court also “misconstrued the law in ruling that the total fee, divided between both firms, could not exceed 23%.”  The court quoted the applicable law from a Third DCA case, Lubell v. Martinez, 901 So.2d 951, 952-53 (Fla. 3d DCA 2005) (which relied on the First DCA case of Adams v. Fisher, 390 So.2d 1248 (Fla. 1st DCA 1980):  “The proper basis for awarding attorney’s fees to discharged attorneys and their successors is as follows:  Discharged attorneys hired under a contingent fee contract are entitled to recover quantum meruit for their services, limited by the maximum fee allowable under the [the discharged attorney’s] fee agreement.  . . .  A substituted attorney, however, is entitled to the full contingent fee provided for in the contract.”  This means that a client may end up paying a total amount of fees that exceeds the contingent fee percentage in the original agreement.

         The Fourth DCA concluded:  “[T]he trial court erred as a matter of law in holding the total fee amount was limited by the maximum amount allowed under either contingency fee agreement.”  Perlman, Bajandas, Yevoli & Albright, P.L. v. Atlas Holding Corp., __ So.3d __ (Fla. 4th DCA, Nos. 4D22-1827, 4D22-2048, 4D22-2060, 4D22-2223, 9/6/2023), 2023 WL 5759267.

Court erred in imposing charging lien for lawyer’s fees on opposing party.  [Added 9/12/23]

         Lawyer represented a medical provider (“Florida Spine”) on a contingent fee basis in suits against insurance company GEICO for PIP benefits.  While the PIP suits were pending, the parties sued each other in separate suits in which Lawyer was not involved.  Soon after filing a charging lien for fees in each PIP case, Florida Spine discharged Lawyer.

         Florida Spine’s new counsel dismissed the PIP suits pursuant to a settlement agreement reached by Florida Spine and GEICO in the non-PIP suits.  The dismissals stated that “[e]ach party will bear its own attorneys’ fees and costs.”

         Lawyer moved to consolidate and re-open the PIP cases to adjudicate his charging liens.  He served the motion on both his former client and GEICO, but the motion “did not specifically reference GEICO or indicate in any way that Stein was seeking payment for his fees and costs from GEICO.”  The trial court granted the motion to re-open the case, stating in its order that GEICO and its attorneys “shall have no responsibilities regarding the setting of the reasonable attorneys’ fees and costs” (emphasis by 4th DCA).  Further, at one of the hearings on Lawyer’s charging liens, the court specifically stated that “GEICO has nothing to do with any of this.”

         After several hearings in which GEICO attended but did not substantially participate in, Lawyer moved to add GEICO to the final judgment on fees and costs.  The court granted the motion and entered an order holding Florida Spine and GEICO jointly and severally liable for Lawyer’s fees and costs.  GEICO appealed.

         The Fourth DCA reversed.  Although the voluntary dismissals did not deprive the trial court of jurisdiction to enforce Lawyer’s charging liens against Florida Spine, “that jurisdiction does not automatically extend to third parties” such as GEICO.

         Under the terms of the parties’ settlement agreement, each party was to bear its own attorneys’ fees.  The trial court did not have the discretion to modify this agreement.  The Fourth DCA agreed with GEICO that it had been given no notice regarding its potential liability for Lawyer’s fees, and thus holding GEICO responsible for those fees deprived GEICO of due process.

         The appeals court further noted that Florida Spine’s dismissal of the PIP suits made GEICO the prevailing party for the determination of fees.

         The court concluded:  “While [Lawyer] may have a valid charging lien enforceable against Florida Spine, he has no enforceable claim against GEICO for attorney’s fees.  Without an express reservation of jurisdiction, or an agreement linking Florida Spine’s voluntary dismissals of the PIP cases against GEICO with any other matters, including a settlement agreement reached between these two parties in a separate case, the trial court erred in adding GEICO to the fee orders and final judgments.”  GEICO General Ins. Co. v. Robert H. Stein, P.A., __ So.3d __ (Fla. 4th DCA, No. 4D22-154 et al., 8/9/2023), 2023 WL 5065747.

Insurer’s payment of policy limits after lawsuit and civil remedy notice were filed is equivalent of confession of judgment and can support claim for fees.  [Added 8/17/23]

         Personal representative Stiwich sued the deceased’s insurer, Progressive, to recover the $10,000 policy limits in uninsured motorist coverage.  Progressive answered, denying all allegations.  Stiwich served a demand for judgment of $7,999.99 that was not accepted.

         A few months later Stiwich filed a civil remedy notice against Progressive with the Department of Financial Services against insurer as a prerequisite to filing a bad faith suit.  Within the 60 days the insurer has to pay the damages, Progressive paid the $10,000 policy limits.  Alleging that this was “the functional equivalent of a confession of judgment or a verdict in favor of the insured,” Stiwich filed a motion seeking entry of “an order of Confession of Judgment/Final Judgment” and asking for attorney’s fees.  Progressive contended that Stiwich could not recover fees under the offer of judgment statute (F.S. 768.79) because that statute applies if a demand is rejected and the offeror “recovers a judgment in an amount” at least 25% greater than the offer.

         The trial court denied Stiwich’s motion, agreeing with Progressive that Stiwich was required to recover a judgment in order to be awarded fees.  Stiwich appealed, asserting that Progressive executed a confession of judgment by tendering the policy limits.  Stiwich “further argues that although the confessed judgment is not the judgment required by the statute, it was equivalent to a verdict upon which final judgment in her favor should have been entered, triggering her entitlement to fees under the statute.”  The appeal court agreed.

         The court explained:  “By tendering the amount of the disputed claim to cure the civil remedy notice, Progressive acknowledged that [the] estate was entitled to the UM benefits Stiwich sought in the instant action, and thus it ‘confessed’ judgment in this action.”  The trial court should have entered final judgment for Stiwich in the amount of the $10,000 payment by Progressive, and that judgment would have satisfied the statutory requirement that a plaintiff must first recover a judgment to be entitled to fees under F.S. 768.79.
          The appeals court also rejected Progressive’s argument that its tender of policy limits could not be deemed a confession of judgment because it never “denied” the UM coverage.  Progressive’s denial of all allegations in the suit seeking payment “created a genuine dispute between the parties as to whether [the deceased] was due UM benefits under the policy and whether Progressive failed or refused to pay such benefits.  Stiwich filed suit in order to resolve this dispute between the parties and to force Progressive to pay the benefits that she alleged were due under the policy.”  Stiwich v. Progressive American Ins. Co., __ So.3d __ (Fla. 2d DCA, No. 2D22-1505, 8/4/2023), 2023 WL 4981032.

When plaintiff’s case dismissed for failure to prosecute, defendant is prevailing party.  [Added 8/14/23]

         Bank filed an action against Kyte alleging default on credit card debt.  Before Bank could serve Kyte, the case was dismissed because Bank’s counsel failed to appear at a pretrial conference.  Kyte moved for fees.  The court denied the motion, “ruling that it had no personal jurisdiction over Mr. Kyte and that he was not the prevailing party for purposes of an award of attorney's fees and costs.”  Kyte appealed.  The Second DCA reversed, concluding that “both rulings were erroneous.”
          The contract included a fee provision, which is reciprocal under F.S. 57.105(7).  Kyte entitled to fees as the prevailing party, because “when a plaintiff's case is dismissed for failure to prosecute, the defendant is the prevailing party.”

         Further, the appeals court agreed with Kyte’s contention that “it is not necessary for a court to have personal jurisdiction over a defendant to award him attorney’s fees.”  Kyte v. Discover Bank, __ So.3d __ (Fla. 2d DCA, No. 2D22-2918, 7/26/2023), 2023 WL 4750720.

Court denied due process to lawyer representing guardian in guardianship proceeding by reducing lawyer’s fee request without a hearing.  [Added 8/6/23]

         Fletcher represented the guardian of a ward.  He petitioned the court for fees of $10,530.  Without conducting a hearing, the trial court awarded Fletcher $6,311 in fees.  Although the court’s order set an amount as a reasonable hourly rate, the order did not determine the compensable number of hours for which fees would be awarded.  Fletcher appealed.
          The Second DCA reversed.  “Attorneys in guardianship proceedings must be afforded the same due process rights as guardians.  That is, an attorney's petition for fees should not be denied or reduced without providing the attorney notice and an opportunity to be heard.”  No hearing was held in this case.  Further, the court’s order failed to address the fee award criteria set in F.S. 744.108(2).          The appeals court concluded:  “The circuit court violated Fletcher’s due process rights by failing to conduct a hearing before awarding fees in a reduced amount.  The trial court also abused its discretion by failing to provide adequate findings in the order on appeal.  Accordingly, we reverse and remand for further proceedings.”  Fletcher v. Bennett, __ So.3d __ (Fla. 2d DCA, No. 2D22-1794, 6/23/2023), 2023 WL 4139136.

Judge of Compensation Claims erred in denying fees to workers compensation claimant.  [Added 7/2/23]

          Claimant, a custodian, was injured on the job when she added bleach to a mixture of cleaning fluids and a harmful chemical reaction occurred.  Claimant reported her claim to the Carrier, whose adjuster initially accepted it as compensable.  The Employer/Carrier subsequently sent a 120-day pay and investigate letter to Claimant advising her that acceptance of the claim was conditional.  Not long after that, the E/C denied the claim.  Represented by counsel, Claimant filed a petition for benefits (PFB).  The E/C responded with a denial.

         The parties entered into a pretrial stipulation in which the E/C “partially changed their position and agreed to accept responsibility for payment of all medical bills and pay for all treatment through February 24, 2021.”  The case proceeded to final hearing.  The Judge of Compensation Claims (JCC) entered an order unfavorable to Claimant, but did not rule on the issue of Claimant’s entitlement to, or amount of, attorney’s fees.  After the hearing, Claimant moved for rehearing.  In the order on rehearing, the JCC expressly denied Claimant’s fee claim.  Claimant appealed on several issues, including the denial of fees.

         The First DCA reversed the denial of fees to Claimant.  Relying on F.S. 440.34(3), the court stated:  “A workers’ compensation claimant’s attorney has a right to be paid an attorney fee by an employer/carrier upon successful prosecution of a claim when more than 30 days has elapsed from the date the E/C received the petition and claimant successfully achieved acceptance and payment of the claim.  . . .  [Claimant]’s counsel succeeded in the prosecution of the PFB seeking medical benefits when the E/C acknowledged it would pay the medical bills at issue in the pretrial stipulation.  [Claimant]’s attorney secured these benefits for [Claimant] through the prosecution of a portion of an outstanding petition.  . . .  We therefore reverse the order to require the JCC to determine the amount of fees for securing the payment of certain medical bills.”  Churchill v. DBI Services, LLC, __ So.3d __ (Fla. 1st DCA, No. 1D21-3199, 5/31/2023), 2023 WL 3734607.

Supreme Court rules that offer of judgment statute, F.S. 768.79, is not a prevailing party statute.  [Added 6/20/23]

         Coates sued R.J. Reynolds Tobacco Company (RJR) for wrongful death.  Coates served RJR with 2 proposals for settlement under F.S. 768.79, the first for $75,000 and the second for $749,000.  Neither was accepted.  At trial the jury awarded Coates $300,000 in compensatory damages and $16 million in punitive damages.

         The punitive damages awarded was reversed on appeal.  R.J. Reynolds Tobacco Co. v. Coates, 308 So.3d 1068, 1071 (Fla. 5th DCA 2020).  The court of appeals certified a question, and the Supreme Court accepted review.  The Supreme Court approved the Fifth DCA’s decision.  Coates v. R.J. Reynolds Tobacco Co., 48 Fla. L. Weekly S1, S1-S5 (Fla. Jan. 5, 2023) (holding punitive damages award excessive under Florida law).

         The Court then turned to Coates’s motion for fees that was based on RJR’s rejection of her proposals for settlement.  “Recognizing that Coates had not prevailed here, we requested briefing on whether the offer-of-judgment statute requires the moving party to prevail in the appellate proceeding.  With the benefit of this briefing, we now hold that the offer-of-judgment statute is not a prevailing-party statute.”  The Court provisionally granted Coates’s motion for fees.

         The Court relied on the text of F.S. 768.79 to hold that the statute is not a prevailing party statute.  “First, the statute itself refers to its fee awards and costs as ‘penalties.’”  Second, the statute provides for fee awards to non-prevailing parties:  “[I]f a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees . . . if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer . . . .”  Section 768.79(1) (emphasis by Court).
          The Court also noted that F.S. 768.79 did not refer to a prevailing party or to prevailing, as do other statutes that include a prevailing party requirement.  Coates v. R.J. Reynolds Tobacco Co., __ So.3d __ (Fla., No. SC2021-0175, 6/15/2023), 2023 WL 4004339.

Order on rehearing finding one of 3 co-counsel not liable for 57.105 sanctions is reversed by Third DCA.  [Added 6/1/23]

         Readon was in litigation with WPLG.  Judge Bokor, the trial judge, granted WPLG’s motion for sanctions under F.S. 57.105 against Readon and his lawyers.  Judge Bokor assessed the fees 50% against Readon and 50% against his 3 lawyers (Kassier, Shapiro, and Brumfield) jointly and severally.  On rehearing, the successor judge affirmed the order against Readon and 2 of his lawyers, but reversed the entitlement order against Shapiro.  The successor judge “reasoned that Shapiro should not be required to pay sanctions as Shapiro’s signature did not appear on any of the three amended complaints, and Shapiro represented Readon in a limited capacity.”  Readon and Kassier appealed the order as to WLPG’s entitlement to fees, and WLPG separately appealed contesting removal of Shapiro from the entitlement order.

         The Third DCA affirmed as to Readon and Kassier’s responsibility to pay fees, and reversed and remanded with instructions to reinstate Shapiro’s liability for fees.
           As to Shapiro, the court noted that, when Shapiro filed his notice of appearance, he requested that he receive “copies of all notices and pleadings.”  He did not limit his representation of Readon.  Further, when the third amended complaint Shapiro had been co-counsel of record for almost three months.  “Judge Bokor determined that the third amended complaint had not been filed in good faith.  Therefore, the issue of whether Shapiro’s name was on the complaint or the amount of time Shapiro participated in this case is irrelevant in light of Shapiro’s status as co-counsel when the third amended complaint was filed.”  Shapiro v. WPLG, LLC, __ So.3d __ (Fla. 3d DCA, Nos.3D21-1733, 3D21-1782, 5/17/2023), 2023 WL 3485524.

Second DCA reverses fee award to bankruptcy trustee of bankrupt law firm, “based upon the complete absence of competent substantial evidence.”  [Added 5/24/23]

         The Stopa law firm filed for bankruptcy and a trustee was appointed.  The trustee sought to recover attorney’s fees from a foreclosure case in which the Stopa firm had successfully defended the client.  Before filing for bankruptcy, the firm filed a motion to tax fees in the case in the amount of $17,000.  The motion listed the hours of lawyer time and the hourly rate.  The trustee subsequently filed a notice of charging lien for the fees.  The bank that was the plaintiff in the underlying foreclosure action opposed the claimed lien.  The trial court determined entitlement to fees and set an evidentiary hearing to determine the reasonableness of the fees sought.
          At the hearing the trustee had a fee expert testify to the Rowe lodestar factors.  The fee expert reconstructed the time for the 3 Stopa lawyers who worked on the case because the trustee could not locate time or billing records.  None of the Stopa lawyers testified.  Over the bank’s objection, the court determined that there was competent substantial evidence to support a fee award of $17,000 to the trustee.  The bank appealed.
          The Second DCA reversed.  “Fee awards must be supported by ‘a predicate of substantial competent evidence in the form of testimony by the attorney performing services and by an expert as to the value of those services.’”  (Citations omitted, emphasis by court.)  There was no testimony from the lawyers who performed the services and no contemporaneous billing records for them.  Accordingly, the court reversed due to the “complete absence of any competent evidence as to the services performed by Stopa.”
           The court rejected the trustee’s reliance on 2 cases to support its claim of sufficient evidence.  In Glades, Inc. v. Glades Country Club ApartmentsAss’n, 534 So.2d 723 (Fla. 2d DCA 1988), time records were not introduced but “the attorney performing the services testified to his hours expended and an expert testified as to reasonableness.”  In Nants v. Griffin, 783 So.2d 363 (Fla. 5th DCA 2001), the lawyer who performed the services did not testify but “the attorney who performed the services, before withdrawing from the case, submitted an affidavit and attached timesheets and detailed billing statements that were authenticated as business records by his supervising attorney, who also reviewed the records and testified to reasonableness, as did an expert.”  Wells Fargo Bank, N.A. v. Meininger, __ So.3d __ (Fla. 2d DCA, No. 2D21-1332, 5/10/2023), 2023 WL 3325824.

Proposal for settlement made to plaintiff in derivative suit was valid and supported award of fees.  [Added 5/12/23]

         Spanakos, a shareholder and former director of defunct Hawk Systems Inc., claimed he was owed money and filed multiple suits related to the governance of Hawk, including a derivative action.  Defendants in the derivative suit included Hawk’s law firm and two lawyers (collectively, “GT Defendants”).  GT Defendants served a proposal for settlement on Spanakos for $500,000.  There were 2 non-monetary conditions to the offer:  “(1) delivery of the attached release signed by Spanakos in his capacity as a putative derivative plaintiff on behalf of Hawk Systems; and (2) delivery of a stipulation of voluntary dismissal with prejudice, which would be ‘approved by the Court to the extent required by law.’”  Spanakos did not accept the offer.
          The trial court granted summary judgment for the GT Defendants and awarded fees to them based on the proposal for settlement.  Spanakos appealed, contending that the proposal for settlement was invalid.  The Fourth DCA affirmed, rejecting the arguments raised by Spanakos. 
          The proposal was not invalid because the settlement would have required court approval.  “[C]ourt approval is a post-agreement ratification of the settlement, not a condition of settlement.”        

          Contrary to Spanakos’s contention, “[d]erivative lawsuits are not exempt from section 768.79.  By its plain terms, section 768.79 applies to ‘any civil action for damages’ and does not contain an exception for shareholder derivative suits.” 

          Nor was the proposal defective for failing to include a provision regarding allocation of the settlement proceeds between shareholders and/or the corporation.  “A defendant making a proposal for settlement to a representative plaintiff need not apportion the proposed settlement among the beneficiaries on behalf of whom the derivative plaintiff is acting.”  (Emphasis by court.) 
          Further, the court rejected Spanakos’s argument that the proposal was made in bad faith.  “[A] a reasonable view of the evidence was that the $500,000 offer was more than adequate.  It was a significant sum and accounted for the substantial weaknesses in Spanakos’s case.  The trial court did not abuse its discretion in concluding that the proposal for settlement was made in good faith.”  Spanakos v. Hawk Systems, Inc., __ So.3d __ (Fla. 4th DCA, No. 4D22-1717, 4/29/2023), 2023 WL 2996591.

Fourth DCA reverses order requiring party and party’s counsel to pay fees as sanction.  [Added 4/19/23]

         A trial court ordered a party and the party’s lawyer to pay $3200 in fees as a sanction for litigation conduct.  They appealed.
          Citing Moakley v. Smallwood, 826 So. 2d 221 (Fla. 2002), the Fourth DCA noted that although a court has inherent authority to impose fees against a lawyer for bad faith conduct, the court must make an express finding of bad faith that is supported by “detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorneys’ fees.”  The words “bad faith” do not necessarily have to appear in the order, but if they do not the order must contain “equivalent language to describe the sanctionable conduct.”

         In this case, the trial court referred to the conduct as “improper” but did not find bad faith or the equivalent.  Noting that “[w]e have examined the attorney’s conduct and cannot conclude that it constituted the type of vexatious litigation conduct that would warrant exercising the court’s inherent sanction authority,” the appeals court reversed with directions to vacate the sanction order assessing fees.  Travelers Home and Marine Ins. Co. v. West Boca Collision, Inc., __ So.3d __ (Fla. 4th DCA, No. 4D22-716, 3/29/2023), 2023 WL 2668489.

ourt properly denied fees to prevailing party because request for fees, though contained in several motions, was not pleaded in answers filed by requesting party.  [3/30/23]

         Vickers was involved in a settlement agreement in a probate case.  The agreement provided for prevailing party attorney’s fees in the event of further litigation.  Vickers was sued by Malpeli for allegedly breaching the settlement agreement.  Vickers filed a motion to dismiss that included a request for a fee award.  The motion to dismiss was denied.  Vickers then filed an answer that did not include a request for fees.

         The case was litigated over the course of two years.  Vickers filed a motion for summary judgment that included a request for fees.  The record did not indicate that the motion was ever called for hearing.  Malpeli filed an amended petition, which Vickers answered.  Again, the answer did not request fees.

         The case was tried and Vickers prevailed on some claims, with Malpeli prevailing on one claim.  Judgment was entered.  Vickers then moved for fees.  The motion was denied.  Vickers appealed.

         The Sixth DCA affirmed.  “The issue for resolution on her request for attorney’s fees is whether the claims she made in her motion to dismiss and motion for summary judgment are sufficient to permit the court to award those fees under Stockman v. Downs, 573 So.2d 835 (Fla. 1991).”  They were not.  Stockman held that a request for fees must be pleaded – which meant that “Vickers was required to have stated her claim for attorney’s fees in her answers to the petitions.  See Green v. Sun Harbor Homeowners’ Ass’n Inc., 730 So.2d 1261, 1263 (Fla. 1998) (observing that ‘pled’ is to be construed in accordance with Florida Rule of Civil Procedure 1.100(a), which defines a pleading as a complaint, answer, or counterclaim).”

         The court commented that the Stockman requirement is for the purpose of giving notice to the opposing party, and concluded:  “[Vickers’] requests for attorney’s fees contained in motions filed more than two years apart were insufficient to place Malpeli on notice that Vickers was claiming attorney’s fees for the entire action pursuant to the settlement agreement.”  Vickers v. Malpeli, __ So3.d __ (Fla. 6th DCA, No. 6D23-281, 3/17/2023), 2023 WL 2543466.

Court erred in awarding additional 5% for postjudgment work expended on unrelated suit.  [Added 3/24/23]

         Carter and her sister hired the William Rambaum, P.A. law firm (“Rambaum”) to represent them in their dispute with their brothers over their deceased father’s property (the “Basswood property”).  Rambaum filed suit to recover the property (the “Basswood Civil Action”).  After a jury trial the parties entered a settlement, and the judgment awarded the property to the sisters in fee simple.  Rambaum’s fee was to be paid from the proceeds when the property was sold.

         Carter died before the property was sold.  Rambaum filed a claim with the estate for fees and costs.  The Estate challenged the claim, resulting in 2 appeals.  Rambaum prevailed.

         When the Basswood property was sold, Rambaum claimed that, in addition to its fees and costs under the contingency agreement, it was entitled to fees of an additional 5% “for work performed on the two appeals that arose out of the probate case.”  Rambaum’s contention was based on “paragraph 5(d) of the contingency fee agreement, which provides for compensation of ‘[a]n additional 5% of any recovery after institution of any appellate proceeding is filed or post-]judgment relief or action is required for recovery on the judgment.’”  The Estate objected, asserting that “paragraph 5(d) did not apply to the two appeals taken in the probate case where paragraph 5(d) was limited to recovery on the judgment in the Basswood Civil Action.”  The trial court granted Rambaum’s request for the additional 5%.  The Estate appealed.

         The Second DCA reversed.  Under the contingent fee agreement, Rambaum was engaged “with regard to the recovery of [the Basswood property] . . .  ATTORNEY shall have no responsibility for any other legal matter of CLIENT, except for those described above.”  Under paragraph 5(d), Rambaum was entitled to the addition 5% if postjudgment proceedings were required “for recovery on the judgment.”  The “judgment” referred to was the judgment in the Basswood Civil Action – which was the only recovery Rambaum obtained for the clients.

         The court explained:  “[T]he contingency provided for in the agreement occurred when the 2011 final judgment declared the sisters the fee simple owners of the Basswood property.  After that point Rambaum did not perform any work on behalf of the sisters to aid in their recovery on the judgment.”  The court further noted that “the filing and securing of Rambaum’s statement of claim against the Estate cannot in any way be construed within the scope of work contemplated in the agreement, which limited the scope of Rambaum’s representation to obtaining a recovery for the client” (emphasis added).  Carter v. William Rambaum, P.A., __ So.3d __ (Fla. 2d DCA, No. 2D22-219, 3/10/2023), 2023 WL 2437744.

Court's order awarding fees under F.S. 57.105 reversed because movant failed to present necessary evidence.  Added 3/1/23]

         The trial court had dismissed Appellant’s claim and ordered him to pay fees under F.S. 57.105.  The Fifth DCA affirmed the dismissal but reversed the fee award because it was not supported by competent, substantial evidence.

         Ordinarily the lack of a transcript of the fee hearing would preclude appellate review, but the Fifth DCA pointed out that, review was possible because “the face of the order, which includes an inventory of the evidence presented at the hearing, shows that Appellee (‘Rossdale’) failed to present the evidence necessary to receive an attorney fee award.”

         The order recited that the trial court received the following evidence was received from Rossdale:  “[A]ffidavits from two fee experts, testimony from one of those experts, an affidavit from Rossdale’s Counsel – which Rossdale did not file until ‘after the conclusion of the hearing’ – and two other documents.  The court’s order describes the first of those documents as ‘an exhibit which purports to be an unsworn timesheet with no other title or description,” and the second as “a document titled Defendant’s calculation of fees & costs against Plaintiff following the Court’s granting of attorney’s fees.’  The court noted that the second document, while declaring to be under penalty of perjury, did not otherwise comply with the requirements for an affidavit.”  No retainer agreement was submitted, and no corporate representative for Rossdale testified.  This evidence was not sufficient to support a fee award.

         Further, under the circumstances the court concluded that Rossdale should not have another opportunity to present the required evidence on remand.  “Under comparable facts, this court has held that the party seeking fees should not receive another opportunity to present the required evidence.”  (Citations omitted.)  Horowitz v. Rossdale CLE, Inc., __ So.3d __ Fla. 5th DCA, No. 5D21-2738, 2/17/2023), 2023 WL 2051816.

Sixth DCA decides that testimony from attorney who performed services not required to support request for attorney’s fees where other admissible evidence details nature and extent of work performed.  [Added 2/24/23]

         “CED” prevailed in suit against “CTCW” and sought fees.  The parties agreed to entitlement but disputed amount, and an evidentiary hearing was held.  “[T]he trial court denied CED’s motion, finding that it failed to present sufficient evidence, namely testimony from its attorneys, concerning the legal services performed in the case.”  CED appealed.

         The Sixth DCA reversed, stating:  “Because invoices in evidence were sufficient, it was error for the trial court to deny CED’s motion on the ground that testimony from counsel was also required.”

          The appeals court noted that sister DCAs disagreed over the necessity of attorney testimony.  The court further noted that it was not bound by any of those decisions.  The court analyzed the question presented by “returning to first principles,” including the Florida Supreme Court’s decision in FloridaPatient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985).  Rowe required that an applicant seeking attorney’s fees “should present records detailing the amount of work performed” in establishing the first step in the lodestar analysis, which is to determine the number of hours reasonably expended.  The court then pointed out that “[t]he dispute here centers on what Rowe does not say – whether testimonial evidence from the attorney performing the work is also required to satisfy the first step in the lodestar analysis.  There is no edict imposing such a requirement in Rowe, nor can we find any Florida Supreme Court opinion making such a pronouncement.”

          After examining the cases that did impose such a requirement, particularly Cohen v. Cohen, 400 So.2d 463 (Fla. 4th DCA 1981), the court found “the Cohen court’s conception of legally sufficient evidence to be too narrow.  . . .  While an attorney testifying based upon his or her personal knowledge of the services performed would suffice, the presentation of testimony is not the only way to establish a fact.  . . .  Detailed business records that bear upon the same issue are also sufficient, especially in this case where those records – which are received without limitation, condition or objection – describe the tasks performed, the individuals who performed each task, the time it took to complete each task, and the hourly rate of each timekeeper.”
          The Sixth DCA certified conflict with the Fourth DCA’s decision in CohenCED Capital Holdings 2000 EB, LLC, v. CTCW-Berkshire Club, LLC, __ So.3d __ (Fla. 6th DCA, No. 6D23-1136, 2/3/2023), 2023 WL 1487713.

Court abused its discretion in awarding fees for time prior to suit being filed.  [Added 2/20/23]

         An assignee (“Doctor”) filed suit to recover PIP benefits allegedly due.  Insurer filed a confession of judgment in an amount totaling around $30.00 and conceded Doctor’s entitlement to fees under F.S. 627.428.  “Doctor’s motion, however, did not request fees based on Insurer’s conduct nor did it mention any unreasonable conduct allegedly committed by Insurer.”  The court awarded fees that included 2.1 hours spent prior to the filing of the lawsuit.  The order “did not mention whether the pre-suit hours awarded were based in any way on Insurer’s conduct.”  Insurer appealed.

         The Fourth DCA reversed as to the pre-suit fees.  “Courts have held that pre-litigation attorney’s fees can be compensable only when the accrued fees are the result of an insurer’s unreasonable conduct.  . . .  Doctor’s motion for attorney’s fees was not founded upon Insurer’s purported unreasonable conduct, nor does the trial court’s order granting fees discuss whether Insurer acted unreasonably.  Further, the record on appeal does not reflect unreasonable conduct by Insurer that could have supported an award of pre-suit fees.”  (Emphasis by court; citation omitted.)  United Auto. Ins. Co. v. Xunda A. Gibson, M.D., P.A., __ So.3d __ (Fla. 4th DCA, No., 4D22-1186, 2/15/2023), 2023 WL 2028245.

Water management district properly awarded fees against party who filed administrative petition challenging issuance of environmental resource permit.  [Added 2/2/23]

         The Water Management District issued an environmental resource permit (ERP) to developer Palafox for a surface water management system on a property located near Diaz’s home.  Diaz filed an administrative petition challenging the ERP.  Palafox alleged that Diaz and her lawyer filed the petition for an improper purpose.  After a hearing on the merits, the administrative law judge found that Diaz and her lawyer acted with an improper purpose and recommended that the District award fees and costs to Palafox.  The District did so.  Diaz appealed.

         The First DCA affirmed.  “Whether a party intended to participate in a section 120.57 hearing for an improper purpose is a factual inquiry.  The administrative law judge made several findings of fact in the recommended order, concluding that Diaz ‘was not the least bit informed of [Palafox’s] Project,’ and that she ‘simply does not want Palafox’s property developed and was willing to challenge [the ERP] regardless of a lack of evidentiary support [for her position].’”  The record contained competent, substantial evidence to support the finding that Diaz participated in the proceeding for an improper purpose.  Diaz v. Northwest Florida Water Management District, __ So.3d __ (Fla. 1st DCA, No. 1D21-2699, 1/25/2023), 2023 WL 379545.

Denials of prevailing party fees under FDUTPA and fees under F.S. 768.79 affirmed.  [Added 1/31/23]

         A jury found for Defendant at trial.  Defendant sought prevailing party fees under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) and fees based on the offer of judgment statute, F.S. 768.79.  The trial court denied fees.  Defendant appealed.
          The Third DCA affirmed.  In the FDUTPA claim, the statute gives the trial court discretion to award prevailing party fees.  The appeals court stated:  “[T]he record reflects that the trial court granted partial summary judgment as to liability in favor of the plaintiff on the FDUTPA claim, but the jury awarded no damages.  Based on the record before us, the discretionary nature of prevailing party fees under FDUTPA, and the analytical framework described above, we find no abuse of discretion in the trial court’s denial of fees and costs to [Defendant] on the FDUTPA claim.”

         As for the offer of judgment claim, Defendant served offers on Plaintiff as required by the statute.  Plaintiff did not accept the offers within 30 days, and Defendant received a judgment of no liability.  Thus, the determinative question was whether Defendant’s offers compliance with the other requirements of the statute.

         The appeals court concluded that they did not comply in multiple respects.  “Most notably, the proposals require the plaintiff to execute a release but fail to attach or describe the release with sufficient detail.”  Further, “the proposals contain, at a minimum, ambiguity as to the issue of punitive damages.”  (Footnote omitted.)  “Finally, the releases require payment from the date of “settlement” without defining such date.”  Because “none of proposals proffered under the offer of judgment statute satisfy the strict requirements of the relevant statute and rule, and the trial court correctly declined to enforce them.”  Gonzalez v. Nobregas, __ So.3d __ (Fla. 3d DCA, No. 3D21-1826, 1/18/2023), 2023 WL 218785.

Fee award to insured reversed because suit was not necessary to resolve dispute with insurer and there was no breakdown in claims adjusting process.  [Added 1/24/23]

         Insured filed a claim with homeowners Insurer.  Insurer responded with a letter acknowledging that there was coverage.  Insurer’s investigation determined that some of the claimed damages were not covered.  Without informing Insurer that he disputed its estimate or coverage determination, Insured filed suit alleging breach of contract.  After an appraisal, a substantial judgment was entered for Insured that included damages for portions of the claim that had previously been denied.  On motion by Insured, the trial court found that Insured “was forced to file suit because [Insurer] wrongly denied coverage for the roof and that the appraisal award was a direct result of the insured’s lawsuit” and awarded attorney’s fees.  Insurer appealed.
          The Fourth DCA reversed.  “An insured moving for attorney’s fees must prove that ‘the suit was filed for a legitimate purpose, and whether the filing acted as a necessary catalyst to resolve the dispute and force the insurer to satisfy its obligations under the insurance contract.’  . . .  For attorney’s fees to be awarded, there must have been ‘some dispute as to the amount owed by the insurer’ before the insured filed suit.  . . .  In this case, there was no dispute as to the amount owed because the insured did not inform [Insurer] that he disputed its estimate or coverage determination letter.  The insured did not send [Insurer] a competing estimate or complete a sworn proof of loss.  The first indication of disagreement was when the insured filed the complaint.  Because the insured did not afford [Insurer] an opportunity to compel appraisal before he filed suit, awarding attorney’s fees in his favor is not appropriate.”  (Citations omitted.)

         The appeals court further noted that the trial court erred in concluding that there was a breakdown in the claims adjusting process “because the insurer was never informed of a potential dispute until suit was filed.  The insured must show that he ‘attempted to resolve any differences without resorting to formal legal action’ for an award of attorney’s fees to be appropriate.”  (Citation omitted.)  Insured made no effort to resolve the dispute prior to filing suit.  People’s Trust Ins. Co. v. Polanco, __ So.3d __ (Fla. 4th DCA, No. 4D22-559, 1/11/2023), 2023 WL 151310.

Award of fees directly to claimant’s counsel in insurance case is reversed, because statute requires fees to be paid to insured or beneficiary as party to litigation.  [Added 1/19/23]

         An insured who was in an auto accident sought medical treatment from Best Medical, which took an assignment of the insured’s policy benefits.  Best Medical sued the insurer, State Farm, for payment and prevailed.  The trial court awarded fees against State Farm pursuant to F.S. 627.428.  The fee award was made directly to Best Medical’s counsel.  State Farm appealed, asserting that “the fee award was incorrectly granted directly to counsel, rather than to Best Medical.”
          The Third DCA agreed and reversed, stating that “Florida law requires attorney’s fees to be paid to a party to the litigation, not to non-party counsel.”  After reviewing the statute, the court concluded:  “Because section 627.428 requires attorney’s fees to be paid directly to an insured or beneficiary as party to the litigation, we reverse and remand this case to the trial court so that the fee award can be granted to Best Medical as party to this litigation.”  State Farm Mut. Auto. Ins. Co. v. Best Medical Treatments, Inc.,  __ So.3d __ (Fla. 3d DCA, No. 3D21-1358, 1/4/2023), 2023 WL 27699.

Court erred in rejecting lawyer’s claim to charging lien against funds held in trust account of co-counsel, who refused to release the funds after client signed closing statement because of alleged fee lawyer owed to co-counsel from unrelated case.  [Added 12/29/22]

          Lawyers Commons and Price represented client Spracklen, the plaintiff in a dental malpractice action.  The case settled for $1,055,500.  The settlement funds were deposited into Price’s trust account.  Spracklen signed a closing statement showing that the 2 lawyers would each be paid $211,100 of the settlement amount as their fees.  Despite the closing statement, Price declined to pay the full amount to Commons.  Instead, he withheld more than $27,000 for a fee he claimed Commons owed him for representing her in an unrelated case.
          Commons sent a notice of charging lien to Spracklen and Price, then filed a motion to adjudicate her claimed lien.  “Under Florida law, a charging lien requires four elements:  1. A contract between the attorney and client; 2. An understanding that payment will come from recovery; 3. ‘[A]n attempt to avoid the payment of fees . . . or a dispute as to the amount involved’; and 4. Timely notice.  Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So.2d 1383, 1385 (Fla. 1983).”  Price asserted that the third requirement “was not satisfied because Commons, the attorney, and Spracklen, the client, had no quarrel”; that is, Spracklen did not dispute that Commons was owed her fee and had taken no action to keep her from being paid.  The trial court agreed and denied Commons’ attempt to enforce her claimed charging lien.
          Commons appealed.  The Second DCA reversed, having no difficulty finding that the third charging lien element had been satisfied.  Spracklen’s failure to pay Commons’ fee, by itself, was sufficient to make a prima facie case regarding this element.  “Regardless of whether Spracklen’s actions (or inaction) are attributable to him individually or to him as the principal responsible for his agent’s conduct in regard to the settlement funds, the third element of a charging lien was satisfied.”
          The fact that Spracklen signed the closing statement did not compel a different result.  The court rejected Price’s argument that, after the signing of the closing statement, Price was holding the funds on behalf of Commons rather than Spracklen.  “Price has cited no authority for the proposition that a closing statement changed legal ownership of money held in trust in this manner.  Nor does he cite any authority that would permit an attorney in his position to divert a client's trust funds to satisfy a debt owed by a different client, from an unrelated proceeding, possibly to the current client's detriment.”
           In a footnote, the court questioned the ethical propriety of Price’s actions:  “Price’s actions in this case appear to be solely for his personal benefit while placing Spracklen, his current client, in legal jeopardy with Commons.  Spracklen owes a fee to Commons from the settlement in this case regardless of the unrelated dispute between the two attorneys.  We need not determine whether Price's actions violate the Rules of Professional Conduct, but we feel compelled to note that we are troubled by them.”  Commons v. Spracklen, __ So.3d __ (Fla. 2d DCA, No. 2D20-2081, 12/21/2022), 2022 WL 17824333.

Order denying motion for sanctions under F.S. 57.105 reversed and remanded due to court’s failure to make any findings, oral or written, supporting its order.  [Added 12/22/22]

         Van Sant Law, LLC and a corporation (“NCBC”) formed a limited liability company (“RK324”) whose only asset was an aircraft based in Georgia.  Air Isaac sued Van Sant, NCBC, and RK324 in Florida.  Van Sant moved for sanctions against Air Isaac on the ground that the suit was filed frivolously in Florida for purposes of delay.  Air Isaac voluntarily dismissed the suit after the 21-day safe harbor period in F.S. 57.105(d) had passed.  Van Sant moved for sanctions.  The trial court held a hearing and took the matter under advisement without pronouncing any findings.  The next day the court entered “an unelaborated written order denying the motion.”  Van Sant appealed.

         The Second DCA reversed.  While a court may not award fees under section 57.105 without making a finding of frivolity, “findings to the contrary are not necessary in denying such fees” (citation omitted).  “However, without rendering any findings, it is impossible to determine on appellate review whether the trial court abused its discretion in denying the motion.  . . .  Thus, we reverse and remand to the trial court to make findings, either oral or written, regarding its denial of Van Sant’s motion for sanctions pursuant to section 57.105.”  (Emphasis by court.)   Van Sant Law, LLC v. Air Isaac, LLC, __ So.3d __ (Fla. 2d DCA, No. 2D21-3714, 12/2/2022), 2022 WL 17366027.

Offer of judgment invalid because it included demand for retraction of and apology regarding alleged defamatory statement.  [Added 12/19/22]

         Plapp sued Harris, accusing her of making a defamatory statement about him.  The court found for Plapp and awarded him damages of $50,000.  Plapp then sought fees under F.S. 768.79 based on a rejected offer of judgment.  Plapp had offered to settle the case for $5000 plus a retraction of the statement and an apology by Harris, but Harris did not accept.  The trial court awarded fees to Plapp.
          Harris appealed contending that F.S. 768.79 “did not apply to the offer because it was not limited to a ‘civil action for damages’ under the statute.  The First DCA agreed and reversed the fee award. 
          The court explained:  “Plapp offered to settle for $5,000 and received a judgment of $50,000.  But Plapp’s settlement offer also required, and his complaint demanded, that Harris make a formal retraction and apology along with the monetary payment.  Section 768.79 applies only to ‘civil action[s] for damages’ and the supreme court has held that section 768.79 does not apply to actions ‘where a plaintiff seeks both monetary and nonmonetary relief.’  Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362, 375 (Fla. 2013).”
          The court also rejected Plepp’s assertion that the “real issue” doctrine applied to his offer, pointing out that the cases applying that doctrine “are substantively different from this one; a civil damages action in which acceptance of the offer would have required Harris to do something other than pay money.”  Harris v. Plapp, __ So.3d __ (Fla. 1st DCA, No. 1D21-1837, 11/23/2022), 2022 WL 17173916.

Court erred by imposing charging lien on all of party’s assets, including homestead property, in divorce case.  [Added 12/7/22]

         In a divorce case, the trial court imposed a charging lien on all of the former wife’s assets, including her homestead.  Former Wife appealed, and the Fifth DCA reversed.  “[Former Wife] consented to this provision of the charging lien when her previous attorney withdrew from the case.  But her consent does not matter because a homeowner cannot waive her homestead exemption rights in an unsecured agreement.  See Chames v. DeMayo, 972 So.2d 850, 861 (Fla. 2007); Quiroga v. Citizens Prop. Ins., 34 So.3d 101, 102 (Fla. 3d DCA 2010).  We therefore remand for the trial court to strike that portion of the charging lien incorporated into the final judgment to the extent it attaches to [Former Wife]’s homestead.”  Eadie v. Gillis, __ So.3d __ (Fla. 5th DCA, No. 5D21-3054, 11/18/2022), 2022 WL 17070474.

Second DCA quashes discovery order obtained by law firm pursuing charging lien in case in which it did not appear.  [Added 11/1/22]

         State Farm Insurance and Athans Chiropractic settled a case (the “prior suit”).  Law Firm was not involved in the prior suit.  In another case, Law Firm represented Athans against State Farm for alleged breach of an auto insurance contract.  When Law Firm learned that the parties had litigated and settled the prior suit, Law Firm asserted that State Farm had violated its charging lien rights relating to the prior suit.
          Law Firm propounded discovery requests seeking information about the settlement in the prior suit, contending that the discovery “was necessary to ‘ascertain on the record whether or not there is a [charging] lien violation.’”  State Farm objected that the requested discovery was not relevant to the pending case because Law Firm had no lien rights in the pending case and was not a party to it.  The trial court permitted discovery to go forward.  State Farm petitioned the Second DCA for a writ of certiorari.
          The appellate court granted the petition and quashed the discovery orders.  Law Firm had no basis for a charging lien under Florida law.  “‘The charging lien is an equitable right to have costs and fees due an attorney for services in the suit secured to him in the judgment or recovery in that particular suit.’  Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So.2d 1383, 1384 (Fla. 1983) (emphasis added [by court]).  [Law Firm] did not appear in the earlier suit – it was not even aware Athans had decided to use a different law firm to pursue the claim.  Thus, it did not provide any services, nor did it secure a judgment or settlement in that suit.  In other words, the settlement in the earlier lawsuit was not the fruit of [Law Firm’s] labor, so there was nothing to which its purported lien could attach.”
          The Second DCA further noted that Law Firm had not perfected a charging lien in the prior case because it failed to give timely notice in the prior suit, which is a requirement for a valid lien.
          Finally, the court rejected Law Firm’s reliance on Brown v. Vermont Mutual Insurance Co., 614 So.2d 574 (Fla. 1st DCA 1993), and Heller, P.A. v. Held, 817 So.2d 1023 (Fla. 4th DCA 2002).  “[Law Firm] argues that it is nevertheless entitled to pursue its charging lien against State Farm because it was unaware the earlier case was being litigated by a different law firm until after it was dismissed, and that it was a fraud for State Farm, and presumably Athans, to conduct that litigation without notifying [Law Firm] that another law firm was pursuing the claim on Athans’ behalf.  Unlike this case, however, the attorneys in Heller and Brown had a basis to claim a charging lien – they had appeared in the litigation and provided services for which they were owed a fee.” State Farm Mut. Auto. Ins. Co. v. Athans Chiropractic, Inc., __ So.3d __ (Fla. 2d DCA, Nos. 2D21-1518, 2D21-2028), 10/7/2022), 2022 WL 5265045.

First DCA clarifies type of evidence needed to support fee award under Rowe.  [Added 10/26/22]

         The trial court granted the Middletons’ motion for attorney’s fees.  Waites appealed, contending that the court did not follow Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), and Grapski v. City of Alachua, 134 So.3d 987 (Fla. 1st DCA 2012) because the court did not make specific findings about the reasonable amount of hours worked and there allegedly was not evidence of sufficiently detailed records of the time spent working on the case.

         The First DCA affirmed.  “[A]lthough the Middletons’ counsel did not keep accurate and current records of the time spent on legal work for the Middletons, he did present competent substantial evidence to show that at least fifty hours of work were performed over a ten-year period.  The Middletons’ counsel produced the court docket and internal files, showing the number of filings drafted.  He also submitted his own affidavit explaining the time spent on the case and the affidavit of an expert witness.  The expert witness also testified at the fees hearing that fifty hours was a reasonable and conservative estimate of the time spent on the case.  The trial court did not abuse its discretion by relying on this competent substantial evidence in its fee award.”  Waites v. Middleton, __ So.3d __ (Fla. 1st DCA, No. 1D21-3476, 9/28/2022), 2022 WL 4490447.

Order awarding fees under F.S. 627.428 after dispute over proper payment of statutory interest is reversed because interest is not insurance policy or PIP benefit.  [Added 10/13/22]

         Medical Provider took an assignment of an insured’s rights under an insurance policy.  Provider sued Insurer for unpaid statutory interest of 14 cents on a personal injury protection (“PIP”) benefit.  The suit was decided in Provider’s favor, and fees of $24,028 were awarded to provider under F.S. 627.428 and 627.736.  Insurer appealed.
          The Fourth DCA reversed.  The fee statutes relied upon by the trial court permit a fee award when an insured (or assignee) prevails in an action to recover a “benefit” under an insurance policy.  Statutory interest, however, does not qualify.  “Applying section 627.428(1)’s plain language, the trial court erred in awarding the Provider’s attorney’s fees because no contractual or policy provision supports the award for enforcing the payment of interest.  Applying the plain language and in para materia principles to the pertinent provisions of the Florida Motor Vehicle No-Fault Law discussed above, the trial court erred in awarding the Provider’s attorney’s fees because interest owed on a late PIP benefit payment is not in and of itself a PIP benefit.”

         A concurring opinion criticized the case as “a needless waste of judicial resources.”  Liberty Mutual Ins. Co. v. Pan Am Diagnostic Services, Inc., __ So.3d __ (Fla. 4th DCA, No. 4D21-2156, 8/17/2022), 2022 WL 3383610.

Defendant who was dismissed without prejudice after serving offer of judgment, and not named when plaintiff filed second complaint, was not entitled to fees under F.S. 768.79.  [Added 9/30/22]

          Plaintiff filed a first amended complaint naming Defendant and others.  Defendant served offers of judgment, which Plaintiff rejected.  Defendant’s motion to dismiss was granted without prejudice, which constituted an involuntary dismissal.  Plaintiff then filed a second amended complaint that did not include Defendant.

          Defendant moved for fees under F.S. 768.79.  The trial court denied the motion.  Defendant appealed.
          The Third DCA affirmed.  The court pointed out that the statute “entitles a defendant to an award of attorney’s fees and costs where the defendant filed an offer of judgment, not accepted by the plaintiff within 30 days, and ‘(1) the judgment is one of no liability; (2) the judgment obtained by the plaintiff is at least twenty-five percent less than the defendant's offer; or (3) the cause of action was dismissed with prejudice.’”  (Citation omitted.)  There was no dismissal with prejudice or final adjudication in favor of Defendant.  “The court dismissed [Defendant] without prejudice and he simply remained dismissed when [Plaintiff] chose not to add him to the subsequent complaint.  Accordingly, we affirm the trial court’s denial of entitlement to fees.”  (Footnote omitted.)  Annesser v. Innovative Service Technology Management Services, Inc., __ So.3d __ (Fla. 3d DCA, No. 3D19-2429, 8/17/2022), 2022 WL 3383088.

Condo unit owned who voluntarily dismissed suit against association awarded prevailing party fees based on circumstances.  [Added 9/26/22]

         Unit owner Riveiro filed suit against his Condominium Association seeking an injunction to prevent the Association from limiting him from installing a safety barrier around his outdoor porch area.  After the Association installed pool alarm devices on the doors of his unit, Riveiro voluntarily dismissed his complaint.  The trial court concluded that Riveiro substantially prevailed in the suit because he obtained the relief he sought, and that Riveiro voluntarily dismissed his complaint because the Association’s actions rendered his suit moot.  The Association appealed.
          The Third DCA affirmed based on the case’s “unique facts and procedural background.”  The appeals court noted that “[w]hile a plaintiff’s voluntary dismissal of a complaint normally will render a defendant the ‘prevailing party’ for the purposes of attorney’s fee entitlement . . . an exception to this general rule applies where the voluntary dismissal occurs because the defendant’s actions effectively mooted the case.”  (Citations omitted.)  This was such a case.  Collins Condominium Ass’n, Inc. v. Riveiro, __ So.3d __ (Fla. 3d DCA, No. 3D21-1553, 8/17/2022), 2022 WL 3378413.

Reversing an attorney’s fee sanction order, the Fourth DCA concludes that the trial court’s application of F.S. 57.105(8) would take the statute down “Swearing Match Lane.”  [Added 9/18/22]

         A former girlfriend (“FG”) filed a pro se, ex parte petition for injunction for protection against domestic violence from her former boyfriend (“FB”).  FG alleged that FB made threats (“You and your son might be found strangled floating in the lake, so consider yourself lucky”) and alleged “that the former boyfriend did not allow family members of the former girlfriend in the home.  The petition also alleged that the former boyfriend drove by the residence where the former girlfriend was presently staying with her son.”  A temporary injunction was issued and a hearing scheduled.  FG retained Lawyer to represent her.

         FG moved for enforcement of the temporary injunction, alleging that FB violated the injunction in several respects.  FB served a motion for sanctions on FG, and she timely withdrew her motion for enforcement.  FB then filed the sanctions motion with the court.

         At the hearing on the injunction for protection, FB denied making the threats and introduced evidence of amicable contacts between the parties during the time period in question.  FG testified that FB had made other threats and disputed some of FB’s evidence about contacts.

         The trial court found insufficient evidence to issue an injunction, specifically finding FB’s testimony credible and finding FG’s testimony “less so.”  The court then entered an order assessing attorney fees sanctions against FG and Lawyer pursuant to section 57.105, “based on ‘the petition, pleadings and trial testimony’ because ‘it was not objectively reasonable for Petitioner to have fear for her own safety.’”  The court acknowledged that FG’s motion for enforcement of temporary injunction could not be the basis for sanctions because the she withdrew it within the safe harbor time period.

         The order detailed the court’s findings regarding FG’s testimony and ruled that FB “knowingly made false statements or allegations in the petition with regard to material matters as defined in §837.011(3), as required under §57.105(8), Florida Statutes.”  The order held Lawyer and FG equally liable to FB for attorney’s fees of $21,410.  FG appealed.

         The Fourth DCA reversed.  F.S. 57.105(8) provides:  “Attorney fees may not be awarded under this section in proceedings for an injunction for protection pursuant to s. 741.30, s. 784.046, or s. 784.0485, unless the court finds by clear and convincing evidence that the petitioner knowingly made a false statement or allegation in the petition or that the respondent knowingly made a false statement or allegation in an asserted defense, with regard to a material matter as defined in s. 837.011(3).”  (Emphasis by court.)

        The appeals court concluded:  “[T]he award of attorney’s fees was not permitted under the plain language of the statute because the record did not contain ‘clear and convincing evidence’ that the former girlfriend knowingly made a false statement or allegation in her petition with regard to a material matter.  Significantly, the trial court did not identify any specific statement or allegation in the petition that it found by clear and convincing evidence to be false.”  The court referred to the case as a “garden variety lawsuit” and commented that “[t]o permit a fee award under section 57.105 just because the court did not believe the former girlfriend was telling the truth, without specific falsehoods, would be ‘taking the statute down a road never contemplated by the legislature; namely, Swearing Match Lane.’”  (Citation omitted.)  Cadavid v. Saporta, __ So.3d __ (Fla. 4th DCA, No. 4D21-1717, 8/3/2022), 2022 WL 3050327.

Lawyer who chose to go forward with fee sanctions hearing despite unavailability of expert witness denied fees and not given “second bite at the apple.”  [Added 9/15/22]

         Lawyer Carey represented Flatt in a dispute between former spouses over an alleged loan.  Opposing counsel Mitchell violated discovery rules.  The trial court found Flatt was entitled to sanctions against Mitchell and held an evidentiary hearing.  Carey planned to have a fee expert testify at the hearing, but the expert was unexpectedly unavailable.  A continuance was discussed on the record, but Carey declined to pursue it and instead tried to introduce the expert’s affidavit.  A hearsay objection was sustained and the affidavit was excluded.

          The court awarded fees against Mitchell in the amount showed in Carey’s billing records.  “However, evidence as to the reasonableness of the hours and rate comprising that amount in the form of expert testimony was not presented despite attorney Mitchell arguing to the trial court that such evidence was required and attorney Carey’s awareness of this evidentiary requirement.  Instead, the record reflects that attorney Carey argued in favor of the court deciding the matter without the presentation of such expert testimony.”

         Mitchell appealed.  The Second DCA reversed.   “The law is well-settled:  ‘Even when an attorney's fee award is entered as a sanction, it must be supported by expert evidence as to the reasonableness of the amount of time expended and the reasonableness of the hourly fee.’  . . .  [T]here is no question that the trial court erred in determining the amount of attorney’s fees without considering expert testimony as to reasonableness.”  (Citations omitted.)

         The court the addressed the question of whether the case should be remanded so that Flatt could have another opportunity to present evidence.  A majority of the court concluded that Cottman v. Cottman, 418 So.2d 1241 (Fla. 4th DCA 1982) applied.  In Cottman, the appeals court declined to remand for an additional hearing because the lawyer seeking the fee award admitted that he was aware of the need for expert testimony but failed to provide that evidence.  “We find the facts in Cottman to be on all fours with the facts of this case – the same scenario and basis not to remand for a second bite at the apple is presented in this appeal.”

         In a footnote, the court pointed out a potential ethical violation.  “Although the reply brief contains an argument that there was no legal requirement to present expert testimony in support of the requested fees, at the oral argument attorney Carey conceded that he knew he was required to have an expert but that after the trial court offered its own authority to proceed without an expert, he was reluctant to correct the trial court.  While we are mindful of the difficult task in apprising a trial court that its authority is misplaced, attorneys have an obligation of candor to the tribunal regarding the controlling legal authority.  See R. Regulating Fla. Bar 4-3.3(a).  And the transcripts from the fee hearing indicate that attorney Carey’s argument against needing this expert testimony was robust and encouraged the trial court to proceed without expert testimony, belying that this was mere acquiescence to the trial court’s ruling to proceed.”  Mitchell v. Flatt, __ So.3d __ (Fla. 2d DCA, No. 2D21-487, 8/5/2022), 2022 WL 3129170.

Court’s imposition of fee award as sanction on own motion, after denying both parties’ cross-motions for sanctions, reversed due to failure to provide notice and evidentiary hearing.  [Added 9/12/22]

         One party (the “Shir Defendants”) filed a motion alleging that opposing counsel disclosed confidential settlement terms in violation of a court order.  The other party responded with a cross-motion for sanctions based on alleged litigation misconduct.  The trial court held a hearing on the 2 motions.  After the hearing, the court denied both motions but on its own motion ordered the Shire Defendants to pay $17,150 in fees as sanctions.  The Shir Defendants appealed.
          The Third DCA reversed, based on the trial court’s failure to provide notice and an opportunity for evidentiary hearing before entering the sanctions order.  “[A]lthough the trial court possesses the inherent authority to impose attorneys’ fees for bad faith conduct, the trial court must provide notice and an opportunity to be heard and present evidence prior to entering the sanction.  . . .  The trial court’s failure to allow notice and a hearing prior to entering the sanction order is violative of the Shir Defendants’ due process rights.”  (Citation omitted.)  Shir Law Group, P.A. v. Carnevale, __ So.3d __ (Fla. 3d DCA, No. 3D21-0988, 8/10/2022), 2022 WL 322162.

A sanctions order entered because an insurer pleaded a mistaken affirmative defense is reversed where there was no finding of bad faith.  [Added 8/19/22]

         Medical Provider made a claim with Insurer for PIP benefits based on an assignment from an insured.  The claim was denied, and Provider filed suit.  Insurer answered and pleaded an affirmative defense relating to material misrepresentation that referenced a different insured.  Sometime later Insurer apparently realized its error and filed a motion for leave to file an amended answer.  Provider objected and filed a motion for sanctions, which the trial court granted.  Insurer appealed.

         The Fourth DCA reversed the imposition of sanctions.  The trial court had not made a finding of bad faith on the part of Insurer.  “[W]e must reverse the county court’s order imposing attorney’s fees as a sanction for attorney misconduct, because the county court failed to comply with Moakley’s [Moakleyv. Smallwood, 826 So.2d 221 (Fla. 2002)] requirement that such imposition ‘must be based upon an express finding of bad faith conduct and must be supported by detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorneys’ fees.’  826 So.2d at 227.  While we recognize the county court imposed the sanction because the provider’s counsel’s work in addressing the insurer’s mistaken affirmative defense ‘probably cost [the provider’s counsel] quite a bit of time and money,’ the inability to characterize the insurer’s mistaken affirmative defense as ‘bad faith conduct’ prohibited the imposition of any such sanction.”  Infinity Auto Ins. Co. v. Metric Diagnostic Testing, Inc., __ So.3d __ (Fla. 4th DCA, No. 4D21-3431, 7/13/2022), 2022 WL 2709284.

Award of attorney’s fees against tobacco company as sanction under F.S. 57.105 reversed because fee award was for entire trial but bad faith finding related only to statements during opening.  [Added 8/1/22]

         Counsel for a defendant tobacco company made statement during opening argument that were objected to by plaintiff’s counsel.  The objections were sustained.  After a contested trial, the case was submitted to the jury.  Ultimately the court confirmed that the jury was unable to reach a verdict and declared a mistrial.

         Plaintiff moved for an award of fees for the entire trial.  The court entered a sanction order finding that the defendant’s actions “during opening are in Bad Faith” (emphasis added by appellate court).  The court awarded approximately $560,000 in fees.  Defendant appealed.
          The Fourth DCA reversed.  “An award of fees as a sanction ‘must be directly related to the attorneys’ fees and costs that the opposing party has incurred as a result of the specific bad faith conduct of the attorney.’  Moakley [v. Smallwood], 826 So. 2d [221 (Fla. 2002)] at 227 (emphasis added).  In Moakley, the Florida Supreme Court concluded ‘that the trial court’s exercise of the inherent authority to assess attorneys’ fees against an attorney must be based upon an express finding of bad faith conduct and must be supported by detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorneys’ fees.’  Id.  . . .  The sanction imposed in the present case cannot be upheld under Moakley because the trial court’s only findings of bad faith conduct related to what occurred in opening statement.  The trial court did not make findings of bad faith as to other various incidents interspersed later in the trial.”
          Further, the trial court “did not demonstrate how the attorneys’ fees for the entire trial were ‘directly related’ to the bad faith conduct in the opening statement, or for that matter, the various other items highlighted by the trial court.”  Philip Morris USA Inc. v. Cohen, __ So.3d __ (Fla. 4th DCA, No. 4D21-467, 6/8/2022), 2022 WL 2057779.

First DCA reverses fee award of over $1 million, ruling that proposal for settlement was “impossible to accept and illusory” and not made in good faith.  [Added 6/28/22]

         Hunt rear-ended Lightfoot, and Lightfoot later sued for his alleged injuries.  Lightfoot served a proposal for settlement (“PFS”) to Hunt in the amount of $1.3 million, which Hunt did not accept.  After a jury verdict for Lightfoot of over $11 million, Lightfoot moved for fees pursuant to the rejected PFS.  The trial court entered an award of more than $1 million in fees.  Hunt appealed, contending that the PFS “was not made in good faith because it required her to pay $1.3 million in cash within thirty days to accept it.”
          The First DCA agreed and reversed.  F.S. 768.79(7)(a) and Fla.R.Civ.P. 1.442(h)(1) allow a trial court to not award fees if it finds that a PFS was not made in good faith.  Good faith “turns on whether the offeror ‘had a reasonable foundation to make [his] offer and made it with intent to settle the claim made against [him by the offeree] if the offer had been accepted.’”  (Citation omitted.)
          The appeals court concluded that the PFS was not made with an intent to settle the case.  The “offer was illusory as there was no real possibility Ms. Hunt could accept.”  Payment of $1.3 million in cas within 30 days was “an impossible condition that was designed to fail.”
          The court explained the contours of its decision:  “To be clear, we are not holding an offeror must consider an offeree’s finances and ability to pay before tendering a PFS.  Nor do we take issue with the amount alone or the condition of actual payment alone.  Rather, it is the specific combination of $1.3 million ‘cash on the barrelhead’ that renders this PFS illusory.  If, for instance, the PFS could have been accepted by signing a promissory note for $1.3 million or by agreeing to have a judgment entered for $1.3 million, it would be perfectly valid.”  State Farm Auto. Ins. Co. v. Lightfoot, __ So.3d __ (Fla. 1st DCA, No. 1D20-2303, 5/25/2022), 2022 WL 1653412.

Third DCA reverses fee award in homeowners insurance suit, concluding court erred in applying multiplier.  [Added 6/23/22]

         Insureds sued their insurance over a homeowners insurance dispute.  Insureds prevailed at trial and were awarded fees pursuant to F.S. 627.428.(1)  The trial court applied a multiplier of 1.8.  Insurer appealed, contending that the trial court’s establishment of the lodestar amount and application of a multiplier were not supported by the evidence.  The Third DCA agreed and reversed.
          As to the multiplier, the appeals court concluded that there was insufficient evidence on the second of the multiplier factors set out in Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828, 834 (Fla. 1990), which is “whether the attorney was able to mitigate the risk of nonpayment in any way.”  Insureds had a contingent fee agreement with their counsel, but “other than the existence of a contingency fee agreement, no competent substantial evidence was presented regarding counsel’s ability to mitigate the risk of nonpayment.”  The court noted that “[t]he only relevant evidence introduced regarding whether counsel was able to mitigate the risk of nonpayment in any way was that the client was a ‘blue-collar guy’ with minimal education; the firm had no prior history with the client; and, because the client entered into a contingency fee agreement, counsel would not have collected his fees had the client lost.”  There was no evidence regarding whether Insureds could have afforded a retainer or hourly fee.
          As to the lodestar amount, the trial court “did not make ‘specific findings’ as to its determination of the number of hours” as required by UniversalProperty & Casualty Insurance Co. v. Deshpande, 314 So.3d 416 (Fla. 3d DCA 2020).  Certain Underwriters at Lloyd’s London v. Candelaria, __ So.3d __ (Fla. 3d DCA, No. 3D20-871, 5/18/2022), 2022 WL 1559917.

Fee award under F.S. 83.48 reversed because court did not render judgment or decree in movant’s favor as required by statute.  [Added 6/21/22]

         Landlord Ortuzar sued to evict residential tenant Foley.  After being ordered to mediation, Ortuzar filed a notice of voluntary dismissal.  No order or final judgment was entered by the court.  Three weeks after Ortuzar filed the notice of dismissal, Foley moved for fees asserting that she was the prevailing party.  The court found granted Foley’s motion pursuant to F.S. 83.48 and the lease, finding that Foley “was the prevailing party within the meaning of the statute and the lease because Mr. Ortuzar had filed the notice of voluntary dismissal.”  Ortuzar appealed.
          The Second DCA reversed.  Fee award statutes are strictly construed, and the court pointed out that section 83.48 “provides that ‘[i]n any civil action brought to enforce the provisions of the rental agreement . . . the party in whose favor a judgment or decree has been rendered may recover reasonable attorney fees and court costs from the nonprevailing party.  Id. (emphasis added [by court]).”  (Footnote omitted.)  The trial court did not render a judgment or decree in Foley’s favor, so the statute and the lease did not entitle her to a fee award.  A “judgment or decree” requires an adjudication of the merits, and “a voluntary dismissal is not an adjudication of the merits.”  Ortuzar v. Foley, __ So.3d __ (Fla. 2d DCA, No. 2D21-1262, 5/18/2022), 2022 WL 1559150.

Judge of Compensation Claims erred in denying claim for employer/carrier-paid fees, because claimant’s lawyer did secure benefits for claimant.  [Added 6/15/22]

         Lawyer represented Claimant in a workers compensation proceeding.  Claimant request for fees for Lawyer from the Employer/Carrier was denied by the Judge of Compensation Claims (“JCC”).  Claimant appealed.
          The First DCA reversed.  “Employer/Carrier-paid (E/C-paid) attorney’s fees must be based on ‘benefits secured by the attorney.’  § 440.34(2), Fla. Stat. (2017).  Here, the JCC denied E/C-paid fee entitlement on an increase in Claimant’s AWW [average weekly wage], finding that ‘no actual or real benefit was secured.’  We find reversible error because, even though Claimant had received disability benefits since the date of accident at the maximum compensation rate, the AWW adjustment increased the 80% ‘threshold’ for temporary partial disability (TPD) entitlement.  See § 440.15(4)(c), Fla. Stat. (2017) (providing for entitlement to TPD when an injured worker ‘returns to work with the restrictions resulting from the accident and is earning wages less than 80 percent of the preinjury average weekly wage’).  Additionally, the AWW adjustment could also affect potential offsets if Claimant receives federal disability benefits.  See § 440.15(9)(a), Fla. Stat. (2017).”  Guerrera v. Becton Dickinson & Co., __ So.3d __ (Fla. 1st DCA, No. 1D21-1788, 5/4/2022), 2022 WL 1400136.

Denial of award of excess fees to court-appointed criminal defense lawyer is reviewable on direct appeal, rather than by certiorari, and affirmed.  [Added 6/13/22]

         Weisman was a court-appointed private lawyer who represented a defendant charged with attempted first-degree murder and tampering with evidence.  After the conclusion of the case, Weisman sought compensation in an amount exceeding the statutory fee of $1875.  The Justice Administrative Commission (“JAC”) objected to his claim.  After a hearing at which no testimony was taken and no exhibits were admitted, the trial court denied Weisman’s motion.
         Weisman petitioned for a writ of certiorari.  The First DCA treated the petition as a direct appeal of a final order and affirmed.
          The court explained that, while at one time certiorari was appropriately used to secure review, “[t]he changes to section 27.5304, Florida Statutes, enacted in 2007 by the Legislature rendered obsolete the use of certiorari as a vehicle for review in a case like this one.”  The written order resulting from the revised statutory process “is, without a doubt, an appealable final order.”
          Turning to the merits, the court stated that the question under the statute “is whether Weisman ‘prove[d] by competent and substantial evidence that the case required extraordinary and unusual efforts.’  § 27.5304(12)(b)1., Fla. Stat.  To answer that question, the trial court had to ‘consider criteria such as the number of witnesses, the complexity of the factual and legal issues, and the length of trial.’  Id.  Weisman had the burden of proof, but the record does not reflect that Weisman submitted any evidence that addressed these criteria, or even those criteria that Weisman argued the trial court should have considered.  He was not under oath when he spoke at the evidentiary hearing.  Again, he did not submit any affidavits, did not seek to have any documents admitted as evidence, and did not call any witnesses to testify.  The trial court appropriately considered what was in the court file about the nature of the case and the manner of its disposition.  Without any evidence indicating otherwise, the court had enough to support its conclusion that there was nothing about the case that put it outside the mean with respect to required attorney effort in similarly serious criminal cases in the judicial circuit.”  The motion was properly denied.  Weisman v. Justice Administrative Commission, __ So.3d __ (Fla. 1st DCA, No. 1D19-4577, 5/4/2022), 2022 WL 1400173.​

Ten-day notice requirement of F.S. 627.7152(9)(a) applies to assignment of insurance benefits executed after statute’s effective date even where underlying policy was issued before effective date, per Fourth DCA.  [Added 6/10/22]

         An insured had a water damage loss on June 10, 2018.  She assigned her insurance benefits to appellant Total Care Restoration, LLC on July 16, 2019.  Total Care made a claim with the insurer (Citizens) on September 26, 2019.  Citizens denied the claim on September 30, 2019, and Total Care filed suit.  Citizens answered and asserted that Total Care’s “failure ‘to provide a Notice of Intent to File a Lawsuit at least ten days prior to filing the instant suit’” was an affirmative defense.  Total Care contended “that the pre-suit notice was not required in this case because the insurance policy was issued prior to the enactment of the statute in question.”  The trial court granted Citizens’ motion for summary judgment, noting “that the legislature made clear that the new statutory requirements for assignments of benefits under section 627.7152 applied to all assignments executed on or after July 1, 2019.”
          Total Care appealed.  The Fourth DCA affirmed.  “Contrary to Total Care’s argument, the statute was not applied retroactively – the trial court applied it to an assignment executed after the effective date of the statute.”
          The court continued:  “This case does not involve the application of a statute to a preexisting insurance policy; it concerns a statute’s application to an assignment created after the effective date of the statute.  Thus, section 627.7152 – the law in effect at the time the assignment of benefits was executed – was properly applied to the assignment in this case.”  Total Care Restoration, LLC v. Citizens Property Ins Corp., __ So.3d __ (Fla. 4th DCA, No. 4D21-798, 4/20/2022), 2022 WL 1160756.

Although setoff statutes do not apply to fee awards under proposal for settlement, “reasonableness” requirement in F.S. 768.79 calls for reduction for fees previously paid by settling co-defendant.  [Added 6/3/22]

         Gore sued Philip Morris and R.J. Reynolds companies in an Engle-progeny tobacco suit.  Neither defendant accepted Gore’s proposals for settlement.  After a $2 million judgment for Gore, Gore moved for attorney’s fees.  Reynolds settled its fee claim with Gore.  After a hearing the trial court entered a fee award of more than $2.5 million for Gore against Philip Morris.  Philip Morris moved to apply a setoff of the fees in the amount of Gore’s fee settlement with Reynolds.  The trial court denied the motion, ruling that the setoff statutes did not apply to fees or costs awarded pursuant to the offer of judgment statute, F.S. 768.79, and Fla.R.Civ.P. 1.442.  Philip Morris appealed.

          The Fourth DCA reversed and remanded for the trial court “to award a reasonable fee pursuant to Gore’s Proposal for Settlement that does not include duplicative amounts which Gore has already been paid or awarded for pursuing the claims against any co-defendants.”

         The trial court correctly ruled that the setoff statutes, F.S. 45.015 and 768.041, did not apply to provide a setoff for the fees paid by Reynolds.  F.S. 768.79, however, requires that fees awarded pursuant to a rejected proposal for settlement must be “reasonable.”  Further, “Florida courts have generally viewed double recoveries and windfalls as unreasonable.”

          The court concluded:  “We agree with Philip Morris that if a reduction is not permitted in cases where fees are paid by other parties under separate proposals, the result is an impermissible windfall which, under Florida’s jurisprudence, is manifestly unreasonable.  We therefore hold that because an attorney is entitled only to a ‘reasonable’ fee under the [proposal for settlement] statute when an award of fees is appropriate, the trial court must consider any fees and costs previously paid by settling parties when fashioning an award and make appropriate reductions to avoid a double recovery.”  Philip Morris USA, Inc. v. Gore, __ So.3d __ (Fla. 4th DCA, No. 4D20-932, 4/13/2022), 2022 WL 1099431.

Fifth DCA declines to jump on “litigation roundabout” and rules that F.S. 607.1604(1) does not authorize award of fees incurred in collecting fee judgment.  [Added 5/31/22]

         In a suit with Richman and an entity, Dur-Rich Realty, Calzaretta sought to inspect and copy corporate records.  Calzaretta prevailed and the court awarded him a judgment for attorney’s fees pursuant to F.S. 607.1604(1).  Calzaretta initiated garnishment proceedings to collect the fee judgment.  Calzaretta then moved for an award of fees incurred in pursuing the garnishment action.  The trial court awarded a second fee judgment.  Richman and Dur-Rich appealed.

         The Fifth DCA reversed.  Calzaretta relied on this language in section 607.1604(1):  “If the court orders inspection and copying of the records demanded under s. 607.1602(1), it shall also order the corporation to pay the shareholder’s expenses, including reasonable attorney fees, incurred to obtain the order and enforce its rights under this section.”  (Emphasis added.)  The appeals court considered the statute in context and rejected Calzaretta’s interpretation.  “[W]e believe the more reasonable reading is that the phrase, ‘enforce its rights under this section,’ refers to the statute’s primary objective – a shareholder’s right to inspect and copy records.  We do not read section 607.1604(1) to create a litigation roundabout, where collection proceedings on a fee judgment are followed by a new motion for fees and another fee judgment, only for the cycle to start all over yet again.”

         Because in the garnishment proceeding Calzaretta was attempting to collect a fee judgment rather than obtain an order to inspect and copy records, the trial court erred in awarding fees.

         See also Nazarova v. Nayfeld, __ So.3d __ (Fla. 3d DCA, No. 3D21-1940, 5/18/2022), 2022 WL 1560679 (declining to award "fees for fees" to party that prevailed in suit and sought fee award for litigating amount of attorneys fees ).

Application of contingency multiplier in Magnuson-Moss Warranty Act case reversed.  [Added 5/20/22]

         Henry sued BMW of North America under the Magnuson-Moss Warranty Act and prevailed.  The trial court awarded prevailing party fees to Henry, which included application of a contingency multiplier.  BMW appealed, contending “that because Henry prevailed under a federal fee-shifting statute, federal law governs the attorney’s fee award, which prohibits the application of a contingency multiplier.”

         The Fifth DCA reversed.  “U.S. Supreme Court precedent addressing contingency multipliers and attorney’s fee awards under federal fee-shifting statutes makes clear that such enhancements are prohibited.”  Although under Perdue v. Kenny . ex rel. Winn, 559 U.S. 542 (2010) a trial court may enhance a fee award based on superior counsel performance, in this case Henry sought a contingency multiplier under Florida law, not an enhancement under PurdueBMW of North America, LLC v. Henry, __ So.3d __ (Fla. 5th DCA, No. 5D21-885, 4/8/2022), 2022 WL 1051468

Court erred in awarding fees as sanction under F.S. 57.105 where motion for sanctions had not been served as required by statute.  [Added 5/6/22]

          Rivera Chiropractor sued a patient’s personal injury lawyer (Rosello) over non-payment related to chiropractic treatment.  Rosello moved to dismiss the first amended complaint in May 2019 and served Rivera and its lawyer, Chauncey, with a safe harbor letter pursuant to F.S. 57.105(4).  Rivera did not withdraw or amend the claims at issue within the 21-day period.

         In September 2019 the court dismissed the first amended complaint without prejudice.  Rivera filed a second amendment complaint.  Rosello filed 2 motions (on October 2 and 4, 2019) to dismiss the second amended complaint as a sanction and also sought an award of fees as a sanction.  In the motions Rosello stated that Chauncey was served under F.S. 57.105 – but the attached return showed that Chauncey was served with the motion filed regarding the first amended complaint, some 4 months before the second amended complaint had been filed.  On October 8, 2019, Rivera filed a notice of voluntary dismissal.  Rosello then filed 3 motions on October 10 seeking sanctions.

         The trial court granted fees as a sanction against Rivera.  Rivera appealed.  The Second DCA reversed.  Rosello had served a safe harbor letter directed at the first amended complaint, not the second amended complaint.  “Rosello never served Rivera Chiropractor with the October 2 and 4 motions before filing them with the trial court. As such, there was never a safe harbor period during which Rivera Chiropractor could have had the opportunity to withdraw the second amended complaint to which the October 2 and 4 motions were directed.”  (Emphasis by court.)  Further, the October 10 motions could not serve as a basis for the fee award because they were filed after Rivera had voluntarily dismissed the case.  Rivera Chiropractor, Inc. v. Rosello, __ So.3d __ (Fla. 2d DCA, No. 2D20-3068, 3/30/2022), 2022 WL 943968.

Court erred in awarding fees based on proposal for settlement that was “fatally amorphous.”  [Added 4/29/22]

         Tiner sued Nancy Harris and William Harris after an auto accident.  Tiner served a proposal for settlement on both defendants in 2018, and on Nancy Harris only in 2019.  All proposals were rejected.  Tiner obtained a recovery in excess of 125% of each offer and moved for fees under F.S. 76.79.  The trial court awarded him fees from the date of the 2018 proposals.  The Harrises and their insurer appealed.
          The Second DCA reversed in part, concluding that the 2018 proposal for settlement was invalid.  The 2018 proposal “was fatally amorphous. It stated simply that its amount was $100,000.  It did not demand that the Harrises consent to a judgment in that amount, as contemplated in section 768.79(1), nor did it require them to pay that sum nor specify when payment must be made nor obligate Tiner to dismiss his claims upon receipt of payment.  The only explicit obligation imposed upon the Harrises by the proposal’s terms required them to execute a stipulation for dismissal of Tiner’s claims.”  (Emphasis by court.)  Accordingly, the 2018 proposal “did not clearly and definitely set forth terms that would permit the Harrises to make an informed decision without needing clarification. Their rejection of that proposal did not entitle Tiner to a fee award.”

         In contrast, the 2019 proposal to Nancy Harris “lacked the ambiguities contained in the first, and we affirm the determination that Tiner was entitled to fees from the date it was served.”  Harris v. Tiner, __ So.3d __ (Fla. 3d DCA, Nos. 2D20-2290, 2D20-2313, 3/16/2022), 2022 WL 790669.

Court erred in ruling that statutory change eliminating assignee’s rights to fees in first party insurance action applied to assignment executed before effective date of statute.  [Added 4/21/22]

         Insured suffered a covered fire loss.  Insured executed an assignment of benefits (AOB) in favor of Appellant Water Damage Express on August 27, 2018.  Appellant filed a breach of contract claim against Insurer seeking damages and attorney’s fees.  Insurer did not contest liability but did assert that Appellant was not entitled to statutory fees.  Insurer’s position was that Appellant’s fee claim was governed by F.S. 627.7152(10), the controlling statute at the time Appellant filed suit.  Appellant asserted that its right to fees was governed by F.S. 627.428(1), which controlled at the time the AOB was executed.  The trial court found for Insurer and struck Appellant’s fee claim. 
          The Fourth DCA reversed, based on the plain language of section 627.7152.  The statute “applies to an assignment agreement executed on or after July 1, 2019.”  F.S. 627.7152(13) (emphasis by court).  “Although the legislature later moved the effective date of the legislation to May 24, 2019 . . . it never evinced any intent for section 627.7152 to apply retroactively to assignment agreements executed before May 24, 2019.”  (Emphasis by court.)

         Further, because the right to statutory attorney’s fees is substantive rather than procedural, a statute limiting the right to recover fees does not apply retroactively.  See Menendez v. Progressive Express Insurance Co., 35 So.3d 873 (Fla. 2010).  Water Damage Express, LLC v. First Protective Ins. Co., __ So.3d __ (Fla. 4th DCA, No. 4D21-618, 3/16/2022), 2022 WL 791050.

Court misapplied safe harbor provision and erred in striking 3 motions for fees under F.S. 57.105, because it considered only “motions” filed and not “contentions” within filings.  [Added 4/15/22]

         Appellants filed 3 motions for fees pursuant to F.S. 57.105.  The trial court denied the motions, determining that the safe harbor provision in the statute applied.  Appellants appealed.  The Fifth DCA reversed.

         Appellants argued that the trial court erred because “(1) at least one document was not timely withdrawn, and (2) Appellees would repeatedly withdraw an offending document and then later refile the same claims and allegations.”  The appeals court agreed, noting that at least one of the documents was not withdrawn within the safe harbor period.

         “Second, and more importantly, Appellants did not merely challenge Appellees’ specific filings in their motions. They also challenged specific claims and allegations made by Appellees.”  The court pointed out that while section 57.105(4) “certainly contemplates a challenge to a specific ‘paper,’ it also allows a party to challenge any ‘claim, defense, contention, allegation, or denial.’  Therefore, we conclude that the trial court erred when it only considered whether Appellees’ specific ‘filings’ were timely withdrawn.”  Jimenez v. Aviles, __ So.3d __ (Fla. 5th DCA, No. 5D21-634, 3/25/2022), 2022 WL 879271.

Attorney’s fees are not “actual damages” under Fla. Deceptive and Unfair Trade Practices Act, per Second DCA.  [Added 4/10/22]

         MAC Enterprises sued Vintage Motors and others after a dispute over payment due MAC from Vintage in connection with the sale of a restored 1965 vehicle.  MAC had restored the vehicle and Vintage was to sell it on consignment.  Vintage had lied to MAC regarding the status of the sale, and MAC retained a lawyer to make a demand upon Vintage for the funds it claimed were due MAC.  After the demand letter was sent, Vintage wired the funds to MAC.
          MAC then sued Vintage and its principal for alleged violations of the Fla. Deceptive and Unfair Trade Practices Act (FDUTPA), common law breach of fiduciary duty, and fraud.  In a bench trial the court ruled that MAC prevailed on the FDUTPA claims and that it sustained actual damages in the amount of $3500, which it paid its lawyer.  This $3500 attorney’s fee was the sole component of damages.  Vintage also breached its fiduciary duty to MAC, but concluded that “the damages MAC Enterprises sustained on that count were ‘duplicative’ of the damages awarded in the FDUTPA count.”
          Vintage appealed.  The Second DCA affirmed.  The court summarized:  “The discrete issue Vintage Motors presents in this appeal is whether fees spent on an attorney can comprise an element of ‘actual damages’ under FDUTPA or ‘damages’ in a common law breach of fiduciary duty claim.  . . .  We conclude that attorney’s fees, although awardable as ancillary to a successful FDUTPA claim, are not a substantive component of FDUTPA’s ‘actual damages,’ nor are they ‘damages’ under a common law breach of fiduciary duty claim.”
          In reaching its conclusion the court considered 3 points.  First was the language of the statute, which states in part that a person who has suffered a loss due to a FDUTPA violation “may recover actual damages, plus attorney’s fees and court costs as provided in s. 501.2105.”  F.S. 501.211.  The court noted that “we have a rather obvious textual and structural clue that FDUTPA’s definition of ‘actual damages’ does not encompass attorney’s fees.  FDUTPA’s text sets apart ‘attorney’s fees’ from ‘actual damages’ with an intervening comma and the word ‘plus’ – a word that, in this context, connotes ‘having, receiving, or being in addition to what is anticipated.’”
          Additionally, “the common law distinguishes damages, as an element of a civil claim, from attorney’s fees, which are usually ancillary to recovery on a civil claim.”  (Citations omitted.)
           Finally, the court pointed out that “Florida courts construing FDUTPA have consistently defined the statute's provision of ‘actual damages’ to mean ‘the difference in the market value of the product or service in the condition in which it was delivered and its market value in the condition in which it should have been delivered according to the contract of the parties.’”  (Citations omitted.)  Vintage Motors of Sarasota, Inc. v. MAC Enterprises of North Carolina, LLC, __ So.3d __ (Fla. 2d DCA, No. 2D21-590, 3/11/2022), 2022 WL 727042.

Award of fees based on party’s alleged vexatious litigation in family law case reversed due to lack of required factual findings.  [Added 3/30/22]

         In post-divorce litigation, the trial court found that the former wife (“Wife”) “acted in bad faith by making unilateral decisions regarding the minor child’s medical care and engaged in vexatious litigation by pursuing frivolous and non-meritorious claims.”  Due to Wife’s alleged vexatious litigation, the court awarded fees to the former husband (“Husband”) under F.S. 61.16 and Rosen v. Rosen, 696 So.2d 697 (Fla. 1997).  Wife appealed.
          The Fourth DCA reversed the fee award.  A fee award under F.S. 61.16 requires findings as to the parties’ need for and ability to pay fees, and the trial court made no such findings.  Further, “[a]lthough Rosen allows fees for overlitigation, the trial court failed to make any findings regarding the parties’ ability to pay and need, which are required to grant fees under section 61.16.  [Citation omitted.]  Without meeting this primary criterion, the trial court could not award fees against a vexatious litigant under Rosen.”
          Finally, there were no findings of bad faith that would support a fee award under the inequitable conduct doctrine.  Alvarez v. Salazar, __ So.3d __ (Fla. 4th DCA, No. 4D20-1363, 2/9/2022), 2022 WL 386104.


No timeliness requirement in Administrative Procedure Act for motion for fees as sanction for filing pleading for improper purpose.  [Added 3/27/22]

         Diaz filed an administrative petition to challenge an environmental resource permit held by Palafox.  About 6 months later Palafox filed a motion seeking fees and sanctions against Diaz and her lawyer under F.S. 120.595 and 120.569(2)(e).  The administrative law judge (ALJ) found that the petition was filed for an improper purpose, but declined to impose sanctions.  The ALJ “reasoned that the purpose of sanctions was to deter parties from filing improper pleadings and not to compensate prevailing parties” and found that the 6-month delay in filing the motion militated against awarding fees.  Palafox appealed.
          The First DCA reversed.  “Under the plain language of the statute, once the ALJ found the petition was filed for an improper purpose, she was required to impose a sanction.”  Further, “[t]he plain language of section 120.569(2)(e) does not include a time requirement for seeking sanctions.”  The court summarized:  “So long as an ALJ continues to have jurisdiction and finds a pleading was filed for an improper purpose, the plain language of section 120.569(2)(e) requires a sanction to be imposed.”  Palafox, LLC v. Diaz, __ So.3d __ (Fla. 1st DCA, No. 1D20-3415, 2/9/2022), 2022 WL 390777.

Based on relevant statutory language, First DCA denies appellate attorney’s fees to insured who prevailed on interlocutory appeal concerning venue.  [Added 3/25/22]

          Insured sued his Insurer “regarding the insurance contract ostensibly existing between the two of them.”  Insured appealed the entry of a non-final order transferring venue, and prevailed.  Insured then moved for a fee award from the First DCA court pursuant to F.S. 627.428.  The appeals court denied his motion.  “[A] close reading of that statute reveals that it does not authorize an appellate court to make such an award at the conclusion of an interlocutory appeal. This statute requiring the award of fees (by both the trial and appellate courts) kicks in only ‘[u]pon the rendition of a judgment or decree.’”  F.S. 627.428(1).  The court had no authority – “at least not yet” – to award fees to Insured because there had been no judgment or decree in his favor.

          Nevertheless, the court did indicate that the requested fees could be awarded to Insured if he ultimately recovered against Insurer.  “The pursuit or defense of a non-final-order appeal by an insured’s attorney is part of his effort in moving the lawsuit against the insurer toward conclusion, so any award by the trial court pursuant to section 627.428(1) would have to include payment for that interstitial effort.”  Robles v. United Auto. Ins. Co., __ So.3d __ (Fla. 1st DCA, No. 1D20-1335, 3/9/2022), 2022 WL 697862.

Fifth DCA reverses order awarding fees to personal representative following termination of will contest, finding lack of jurisdiction and denial of due process.  [Added 3/18/22]

         Baxter, the sister of a decedent, filed a will contest.  On July 29, 2020, shortly before the scheduled trial, Baxter terminated the will contest litigation by filing a written withdrawal of his objections to the probate of the will in question and to appointment of Glavin as personal representative.  Almost a month later Glavin filed a motion to tax fees and costs against Baxter.  The motion relied on statutes and rules.  On the day of the hearing on the fee motion, Glavin filed a notice of additional authorities that for the first time raised the issue of the inequitable conduct doctrine as a basis for sanctions against Baxter.
          Within 24 hours after the hearing the trial court entered an order identical to the proposed order submitted by Glavin, awarding fees of more than $220,000 against Baxter.  Baxter appealed.  The Fifth DCA reversed on two grounds.
          First, the trial court lost jurisdiction on the entry of a voluntary dismissal, which was entered after Baxter withdrew his objections on July 29, 2020.  Glavin was not appointed as personal representative under August 4, 2020, and did not file her fee motion until August 2, 2020.  “We hold that the probate court lacked jurisdiction to entertain and rule on Glavin’s motion for attorneys’ fees and costs; thus, the final judgment awarding same is quashed.”
           Second, Baxter was not provided notice of the assertion that the inequitable conduct doctrine supported a fee award against him.  “We hold that providing notice mere hours before a hearing that Glavin might seek attorneys’ fees on some basis not identified in her motion, i.e., as sanctions under the inequitable conduct doctrine, does not comport with due process.”  Estate of Baxter v. Glavin, __ So.3d __ (Fla. 5th DCA, No. 5D20-2739, 3/4/2022), 2022 WL 626976.

Third DCA reverses application of contingency fee multiplier due to lack of evidence that relevant market required multiplier in order to obtain competent counsel.  [Added 3/15/22]

          A trial court entered a prevailing party fee award for “Levin” against “Impex.”  The lodestar amount of $142,187.50 in fees was increased by a contingency fee multiplier of two.  Impex appealed.  The Third DCA affirmed the lodestar amount, finding that the trial court did not abuse its discretion in this portion of the order.  The appeals court reversed the application of a contingency fee multiplier.

          The Florida Supreme Court has set forth 3 factors that a trial court must consider when deciding whether to apply a contingency fee multiplier:  “(1) whether the relevant market requires a contingency fee multiplier to obtain competent counsel; (2) whether the attorney was able to mitigate the risk of nonpayment in any way; and (3) whether any of the factors set forth in Rowe are applicable, especially, the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client.”  Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828, 834 (Fla. 1990).
          The Third DCA concluded that there was “no record support for the trial court’s conclusion that the relevant market required a contingency fee multiplier to obtain competent counsel.”  The court summarized:  “Levin’s fees expert testified that Levin could not afford to pay an attorney on an hourly basis and that Impex’s representation by a board-certified construction lawyer necessitated that Levin also have a well-qualified construction lawyer.  Levin’s fees expert, however, never testified that there was a lack of well-qualified, local construction lawyers, or that it was unlikely that Levin would have found a competent lawyer to take his lien foreclosure case without the possibility of a contingency fee multiplier.  [Citation omitted.]  Quite the contrary, on cross-examination, Levin’s fees expert conceded that he was completely unaware of the number of construction lawyers and board-certified construction lawyers practicing in Miami-Dade County.”
         As a result the court concluded that, similar to Universal Prop. & Cas. Ins. Co. v. Deshpande, 314 So.3d 416 (Fla. 3d DCA 2020), “Levin failed to present any evidence below that the relevant market required a contingency fee multiplier to obtain competent counsel in this case.”  Impex Caribe Corp. v. Carl Levin, P.A., __ So.3d __ (Fla. 3d DCA, Nos. 3D20-1806, 3D21-323, 3/2/2022), 2022 WL 610157.

Certifying conflict with all other DCAs, First DCA rules that F.S. 744.108 does not require that services of lawyer appointed to represent a guardianship ward “benefit the ward” in order for lawyer to be awarded fee.  [Added 3/9/22]

         Appellee was appointed to represent an alleged incapacitated person in the proceedings related to the petition for incapacity and, if there was an adjudication of incapacity, to review the initial guardianship report and represent the ward during any objections.  The person was found to be incapacitated and the person’s brother was appointed as plenary guardian.
          Appellee subsequently filed a request for fees (and costs).  The guardian (“Appellant”) contested the request for payment.  Appellee asserted entitlement to fees under F.S. 744.331 and 744.108.  The trial court awarded fees to Appellee, although the order did not cite a specific statutory provision.  Appellant appealed.
          The First DCA affirmed.  Appellee was entitled to fees under F.S. 744.331 for her work in connection with the proceedings to determine incapacity.

         As to Appellee’s claim for fees for work done after appointment of the guardian, the appeals court noted that F.S. 744.108 “entitled an attorney to reasonable fees and costs for ‘services rendered . . . on behalf of the ward.’”  Appellant argued that the trial court erred in awarding fees without making a finding that the attorney’s services provided a “benefit to the ward.”  Other DCAs has interpreted this to be a statutory requirement.  The First DCA, however, disagreed and “decline[d] to adopt this application.  Respectfully, our sister districts have erroneously conflated the separate and distinct subsections of 744.108 and imposed a judicially created ‘benefit to the ward’ standard to fee entitlement which is not supported by the plain language of the statute.”  Instead, the court adopted the reasoning of Judge Luck in his concurring opinion in Schlesinger v. Jacob, 240 So.3d 75 (Fla. 3d DCA 2019).

         The First DCA concluded:  “Pursuant to section 744.311, Appellee was statutorily entitled to fees for services she provided as the alleged incapacitated person’s court-appointed attorney through appointment of the guardian.  Following the appointment of Appellant as guardian, Appellee was entitled to a fee under 744.108(1) for the remainder of services found by the trial court to be reasonable and supported by the criteria enumerated in subsection (2).  The plain language of section 744.108 does not require a finding of ‘benefit to the ward’ as a prerequisite to an award of attorney fees and reimbursement of costs.”  The court certified conflict with decisions of the Second, Third, Fourth, and Fifth DCAs.  Guardianship of Sanders v. Chaplin, __ So.3d __ (Fla. 1st DCA, No. 1D20-3104, 3/2/2022), 2022 WL 610551.

Court did not abuse discretion in ruling that relevant legal community for purposes of fee awards in Engle cases tried in Jacksonville “is the community of lawyers who try these cases in Jacksonville, no matter where the lawyer’s primary office is located.”  [Added 2/24/22]

          After prevailing in an Engle jury trial, the court ruled that Plaintiff was entitled to fees under F.S. 768.79 due to an offer of judgment.  Plaintiff’s fee expert testified as to the reasonable hourly rate and the fees sought by Plaintiff.  Based on the unique nature of Engle cases, the trial court rejected “a solely geographic view of ‘relevant legal community’” for purposes of a fee award.  The court instead concluded that “the relevant legal community for an Engle progeny case[] tried in Jacksonville, Florida is the community of lawyers who try these cases in Jacksonville, no matter where the lawyer’s primary office is located.”  The trial court awarded more than $ million in fees.
          Defendants appealed.  The First DCA affirmed, holding that the trial court did not abuse its discretion.  Philip Morris USA Inc. v. Jordan, __ So.3d __ (Fla. 1st DCA, No. 1D20-360, 1/19/2022), 2022 WL 168443.

Denial of motion for prevailing party fees reversed, where plaintiff had voluntarily dismissed action.  [Added 2/2/22]

          Boat owner Giordano had a dispute with Catamaran Boat Yard, where his boat was docked, over storage and repair charges.  Giordano sued Catamaran.  Seven months later he voluntarily dismissed the suit without prejudice.  Catamaran’s motion for prevailing party fees was denied.  Giordano argued “that Catamaran was not the prevailing party because the voluntary dismissal did not act as an adjudication on the merits.  Giordano claimed that he had dismissed the case because of irreconcilable differences with his attorney, and therefore, the dismissal was unrelated to the merits of the case.  The trial court denied the motion for fees finding that Catamaran was not the prevailing party and the voluntary dismissal did not operate as an adjudication on the merits.”      
          Catamaran appealed.  The Third DCA reversed.  “The general rule in Florida is that ‘when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party.’  . . .  Therefore, in basing its determination that Catamaran was not the prevailing party on its failure to achieve an adjudication on the merits, the trial court erred by applying the wrong legal test.  The proper test is whether Catamaran ‘in fact prevailed on the significant issues tried before the court.’  [Citation omitted.]  Giordano sued Catamaran for damages and failed to recover, therefore, Catamaran is the prevailing party.”  Catamaran B.Y., Inc. v. Giordano, __ So.3d __ (Fla. 3d DCA, No. 3D21-369, 1/12/2022), 2022 WL 107607.

Fourth DCA reverses order awarding contingent fee in wrongful death case to law firm representing person seeking to replace appointed personal representative.  [Added 1/27/22]

          Reontre’yh Pounds was killed in a motor vehicle accident.  He died intestate with no surviving spouse, but had a minor daughter.  Greenland, the daughter’s mother, hired the Cunningham law firm on a contingent fee basis 13 days after the accident.  Eleven days after the accident, the decedent’s mother (“Pounds”) hired the Miller & Jacobs firm, also on a contingent fee basis.  Greenland was appointed personal representative (“PR”).

         Miller & Jacobs obtained policy limits from several insurers, totaling $145,000, and placed the money in its trust account.  Greenland’s counsel sought transfer of the funds, arguing that under Rule 4-1.5(f)(2) Miller & Jacobs could not participate in any fees because Greenland, the PR, did not sign a fee agreement with the firm. 

          Pounds opposed the attempt to transfer the funds and moved for fees for her counsel, alleging that she “had the intent to serve as personal representative of the Estate when she executed the written retainer agreement with Miller & Jacobs.”  She relied on Cooper v. Ford & Sinclair, P.A., 888 So.2d 683 (Fla. 4th DCA 2004).  Greenland’s motion was denied.  The trial court found that Pounds’ counsel, Miller & Jacobs, had produced a benefit for the estate and awarded it a fee of $48,285 based on the contract with Pounds.

          Pounds also moved to set aside the appointment of Greenland as PR, and to be named PR herself.  That motion is still pending.

          On appeal, the Fourth DCA reversed the order granting the fee to Miller & Jacobs.  The appellate court pointed out that Rule 4-1.5(f) “creates a practical difficulty in situations where an attorney is hired to prosecute a wrongful death claim before any person is authorized to sign a contingency fee agreement on behalf of the client.”  In Cooper, the court permitted an award of fees to a law firm that was retained by someone who signed the fee agreement with the firm before she was appointed personal representative but then later was removed from the position.  Cooper was distinguishable from the instant case, where Pounds had not been appointed PR at any point.  

          “To be enforceable, a contingency fee agreement to pursue a wrongful death claim before an estate has been opened must either (1) be signed by a person who later becomes personal representative or (2) be ratified by the eventual personal representative if it was signed by someone else.”  In this case, however, “the trial court erred in awarding a contingency fee to Miller & Jacobs based on the contingency fee agreement with Pounds, because (1) Pounds was never appointed as personal representative, and (2) Greenland, the personal representative, has not ratified Pounds’s fee agreement with Miller & Jacobs.  See § 733.601, Fla. Stat. (2020).”         

          To provide guidance to the trial court on remand, the appeals court instructed:  “On remand, the circuit court should rule upon Pounds’s motion to revoke letters of administration.  If the court were to grant that motion and appoint Pounds as personal representative, then Miller & Jacobs would be entitled to enforce the contingent fee contract under Cooper.  If the court denies the motion to revoke letters of administration and Greenland does not ratify the contingent fee contract, the law firm would still be entitled to the reasonable value of its services ‘on the basis of quantum meruit.’  Chandris, S.A. v. Yanakakis, 668 So.2d 180, 186 n.4 (Fla. 1995).”  Estate of Pounds v. Miller & Jacobs, P.A., __ So.3d __ (Fla. 4th DCA, No. 4D21-1362, 1/5/2022), 2022 WL 39211.

Fourth DCA reverses order denying charging lien but awarding some fees to law firm that withdrew from contingent fee case.  [Added 1/18/22]

          Two clients (the “Cesards”) hired Law Firm to represent them on a contingent fee basis in a first party property insurance claim.  After about 2 years the Cesards filed Bar complaints against 2 of Law Firm’s lawyers.  The Bar complaint prompted Law Firm to withdraw from the case and file a charging lien for fees.  Law Firm asserted that the Florida Bar Ethics Hotline told the Firm that “the complaint created a conflict of interest sufficient to ethically require the firm’s withdrawal from the case.”

          After the case resolved, the court held a hearing on Law Firm’s charging lien.  “The trial court found the firm was not entitled to a lien for its fees but awarded it $9,000.00 for costs, including expert fees, and $6,250.00 as the value of the benefits provided, reduced by what the court described as ‘the detriment incurred for the 11th hour, perhaps avoidable, withdrawal.’  In its ruling, the trial court concluded that the Cesards’ complaint did not demonstrate conduct that would have automatically allowed the firm to withdraw under Rule Regulating The Florida Bar 4-1.16(b).”  Law Firm appealed.

          The Fourth DCA reversed and remanded in an opinion that comprehensively reviewed Florida law on charging liens.  Due to the lack of certain factual findings, the appeals court was “unable to resolve the inconsistency between the trial court’s finding of voluntary withdrawal and its decision to award fees.”

          As a general rule, a lawyer who voluntarily withdraws from a contingent fee case forfeits any fee.  Faro v. Romani, 41 So.2d 69 (Fla. 1994).  The only situations in which the withdrawing lawyer may be entitled to a fee are “if the client’s conduct makes the attorney’s continued performance of the contract either legally impossible or would cause the attorney to violate the ethical rule of the Rules Regulating The Florida Bar.”  Faro, at 71.  Significantly, the Fourth DCA observed that “no Florida court appears to have provided guidance on whether an attorney’s withdrawal because of a client’s Bar complaint is considered voluntary or involuntary.”

          The court did not dispute the Firm’s belief that its withdrawal was prudent.  “Whether the Bar rules required the firm’s withdrawal does not end the inquiry. As the trial court correctly opined, “[a]s stated in Faro, supra, ‘the existence of grounds for withdrawal does not always translate into an attorney’s right to be paid for work performed.’”  When a lawyer withdraw due to a conflict with a client – even a client who filed a bar complaint – it is possible that either the client or the lawyer was responsible for creating the situation.  In Aldar Tobacco Grp., LLC, v. Am. Cigarette Co., 2013 WL 12086251 (S.D. Fla., Feb. 7, 2013), the court found that the withdrawn lawyer’s actions had created the conflict with the client and, as a result, denied the lawyer’s charging lien.

          In this case, however, the trial court did not take testimony “to sort out the factual basis of the Cesards’ Bar complaint.”  In order to properly apply Faro, “the trial court had to determine whether it was the Cesards’ or the firm’s conduct that made continued representation either legally impossible or would have caused the attorney to violate an ethical rule of The Florida Bar.  Faro, 641 So. 2d at 71.  To do so, the trial court had to hear evidence about the Bar complaint’s merits.  The trial court’s only finding below was that the existence of grounds for withdrawal did not translate into the attorney’s right to be paid, yet it made no factual findings regarding who bore responsibility for creating the attorney-client rift.”

          Consequently, the court stated:  “If the evidence shows the Cesards’ conduct caused an ethical conflict, i.e., by filing a meritless Bar complaint, then the firm’s withdrawal was involuntary, and the firm may be awarded fees based upon a quantum meruit.  . . . But if the court finds that the firm’s actions are to blame for the dispute, the firm’s withdrawal is deemed voluntary, and they are not entitled to a fee.”  (Citations omitted.)  The court reversed and remanded “for an evidentiary hearing to determine (1) whether the firm’s withdrawal was voluntary or involuntary, and (2) if the firm’s withdrawal was involuntary, whether the firm’s charging lien attaches.”  Mineo Salcedo Law Firm, P.A. v. Cesard, __ So.3d __ (Fla. 3d DCA, No. 4D20-1761, 1/12/2022), 2022 WL 108405.

A court properly awarded fees based on an offer of judgment made to a lawyer sued for legal malpractice, despite the fact that the lawyer’s firm paid his legal fees.  [Added 1/5/2]

          Former Client sued Lawyer and Law Firm alleging legal malpractice.  The claim against the Firm was based solely on vicarious liability.  Law Firm paid for Lawyer’s legal defense based on his contract with the Firm.  Lawyer made an offer of judgment Former Client; the offer was from Lawyer only, and the Firm did not join in or serve its own offer.  Florida Client did not accept the offer.  The trial court ultimately rendered judgment for Lawyer and Law Firm.          When Lawyer moved for fees pursuant to the offer of judgment, Former Client responded that Lawyer “was not entitled to fees under section 768.79 because [Lawyer] himself did not incur any fees, given the fact that the Firm was contractually obligated to indemnify, and did indemnify,” Lawyer.  Rejecting this contention, the trial court ruled that Lawyer “was entitled to his fees because section 768.79 permits recovery of fees ‘incurred on the defendant’s behalf,’ and thus the analysis was unaffected by the fact that [Lawyer] may not himself have been contractually obligated to pay his attorney for legal services.”  The court awarded fees to Lawyer.

         Former Client appealed.  The Third DCA affirmed.  “[T]he fact that the Firm was contractually obligated to indemnify [Lawyer] and to pay for the legal services provided by [defense counsel] White & Case on behalf of [Lawyer] means that those expenses were incurred by the Firm “on behalf of [Lawyer]” as required under section 768.79(1).  The analysis here is unaffected by the fact that White & Case also provided legal services in defending the Firm as a defendant in the lawsuit.”  Jain v. Buchanan Ingersoll & Rooney PC, __ So.3d __ (Fla. 3d DCA, No. 3D20-1529, 12/1/2021), 2021 WL 5617750.

Denial of law firm’s charging lien is affirmed because of collateral estoppel from federal court judgment finding that firm voluntarily withdrew from contingent fee cases before contingency occurred.  [Added 1/3/22]

          A law firm (“KLG”) represented a client (“Castle”) in a number of insurance-related cases in state and federal court on an oral contingent fee agreement.  KLG withdrew and filing a charging lien.  The reason for the withdrawal was disputed.  A federal court held an evidentiary hearing and ruled the firm withdrew voluntarily before the occurrence of the contingency and that, pursuant to Faro v. Romani, 641 So.2d 69 (Fla. 1994), the firm forfeited its claim to compensation.
          In a state court matter KLG argued that it had not withdrawn voluntarily.  The firm argued that it withdrew for ethical reasons and that, as a result, the rule in Faro did not apply.  The trial court rejected this argument, ruled that the federal court determination had preclusive effect, and discharged the firm’s lien. KLG appealed.   The Second DCA affirmed.  “Because the elements of collateral estoppel were met, the judgment of the federal court on the issue of whether KLG voluntarily withdrew from its representation of Castle is given preclusive effect, and the trial court did not err.”  Kovar Law Group, PLLC v. Benchmark Consulting, Inc., __ So.3d __ (Fla. 2d DCA, No. 2D21-885, 12/1/2021), 2021 WL 5612507.

​Grant of summary judgment on 4 of 5 counts on final day of 30-day window for acceptance of proposal for settlement did not terminate proposal, thus entitling offeror to fees.  [Added 12/24/21]

          “IDG” filed a 5-count complaint against “KidsEmbrace.”  KidsEmbrace moved for summary judgment and then served IDG with a proposal for settlement regarding all claims.  The trial court granted summary judgment on 4 of the 5 counts on the same day that IDG’s 30-day window for accepting the proposal for settlement expired.  IDG did not accept the proposal.  KidsEmbrace moved for fees.  The trial court denied the motion.

          KidsEmbrace appealed.  The appeals court stated the issue presented as “whether the trial court’s order granting summary judgment in KidsEmbrace’s favor as to four of five counts, which was entered on the last day of IDG’s thirty-day window of acceptance, terminated KidsEmbrace’s proposal for settlement, precluding IDG from accepting the proposal, and consequently, precluding KidsEmbrace from enforcing the proposal as a basis for attorney’s fees.”

          The Fourth DCA reversed.  Summary judgment concludes the case “unless there are outstanding parties or issues.”  (Emphasis by court; citation omitted.)  “[H]ere, the trial court’s summary judgment order was not a final judgment resolving all claims, as it left one remaining count.  Thus, the offer could have been accepted (or withdrawn) after the ruling on the four counts.  . . .  Because IDG failed to accept KidsEmbrace’s proposal for settlement, and a final judgment of no liability was ultimately entered in KidsEmbrace’s favor, pursuant to section 768.79 KidsEmbrace was entitled to recover the reasonable attorney’s fees and costs it incurred after the date of its proposal.”  (Footnotes omitted.)  Inspired Products Group, LLC v. Inspired Development Group, LLC, __So.3d __ (Fla. 4th DCA, No. 4D20-2326, 11/17/2021), 2021 WL 5349172.

Judge correctly denied party’s motion for fees based on unaccepted proposal for settlement that was ambiguous.  [Added 12/12/21]

          Employee of Law Firm was in a work-related auto accident.  He filed a workers’ compensation claim and began receiving benefits from the Firm’s carrier, Travelers.  While receiving benefits the Firm terminated his employment; shortly after that, Travelers stopped paying workers’ comp benefits.  Employee sued Law Firm alleging wrongful termination, and filed a workers’ comp petition for benefits against Travelers.

          Law Firm served a proposal for settlement on Employee pursuant to F.S. 768.79 and Fla.R.Civ.P. 1.442.  The proposal required Employee to sign a release “in favor of Defendant and Defendant’s insurer” but did not identify the insurer.  Employee did not accept the proposal, “fearing that doing so would extinguish not only his wrongful termination claim but also his outstanding workers’ compensation petition against Travelers.”

          Law Firm prevailed on the wrongful termination claim and sought fees pursuant to the proposal for settlement.  Employee contended that the proposal was ambiguous.  Law Firm argued that the proposal was not ambiguous, asserting that its proposal was meant to release a different insurer, not Travelers.  Employee claimed that he was not aware that Law Firm had an additional insurer.  The trial court denied fees, ruling that the proposal was ambiguous.  Law Firm appealed.

          The Fourth DCA affirmed.  Law Firm argued that the proposal was unambiguous because it only related to claims arising out of the instant litigation.  Pointing out that “the failure to name the parties to be released when there are outstanding claims involving other parties can constitute an ambiguity,” the appeals court noted that “because [Employee] alleged that he believed that his termination was due to his workers’ compensation claim, he could reasonably believe that this was a claim” relating to or arising out of his dispute with Law Firm.  Accordingly, “[e]ven though Travelers was not a defendant to the action, requiring [Employee] to release an unnamed insurer and then failing to identify the insurer created reasonable uncertainty as to whether accepting the proposal would extinguish his outstanding workers’ compensation claim with Travelers.”  Andersen Firm, P.C. v. Brown, __ So.2d __ (Fla. 4th DCA, No. 4D20-2067, 11/10/2021), 2021 WL 5226292.

Application of multiplier to insureds’ fee award in coverage dispute reversed due to lack of evidence to satisfy Quanstrom requirements.  [Added 12/6/21]

          Insureds filed a claim for storm damage with Insurer.  Insurer denied the claim as being below the hurricane deductible.  Insureds filed suit and obtained a judgment for $35,000 in a case that “was minimally litigated.”  The trial court awarded fees to Insureds, finding a lodestar amount of $70,800 and adding a 1.8 multiplier.  Insurer appealed.

          The Third DCA reversed.  The hourly rates for the lawyers was reasonable, but the appeals court did not affirm the lodestar amount “because the record does not contain competent, substantial evidence that the number of hours billed were reasonable.”  There were no specific findings by the trial court as to disputed time entries.  “Rather, without explanation, the court adopted the plaintiffs’ fee expert’s 10% blanket reduction to the number of hours expended, which we found ‘arbitrary and unsupported’ in [Universal Prop. & Cas. Ins. Co. v.] Deshpande [314 So.3d 416 (Fla. 3d DCA 2020)].  Accordingly, the Third DCA reversed and instructed the lower court to reduce the number of hours billed to 81.1, which was “the only number for which there is competent, substantial evidence adduced by the defendant’s fee expert following a line-by-line accounting of the compensable hours.”

          The court also reversed the application of a multiplier “because the record is devoid of evidence satisfying the [Standard Guaranty Ins. Co. v.] Quanstrom [555 So.2d 828 (Fla. 1990)] factors.”  There was no evidence that Insured could not have gotten other competent counsel without a contingency fee multiplier or that there was a risk of nonpayment.  Citizens Property Ins. Corp. v. Casanas, __ So.3d __ (Fla. 3d DCA, No. 3D20-322, 10/27/2021), 2021 WL 4978608.

Court erred in denying prevailing party fees to homeowners association that obtained relief it sought and then agreed to dismiss suit.  [Added 12/3/21]

          Homeowners Association (“Association”) sued Homeowners for allegedly violating provisions in the HOA Declaration by installing a fence that encroached on a roof overhang easement for the benefit of neighboring property.  After mediation the parties entered into a settlement agreement whereby Homeowners would remove the fence.  The parties could not agree on the Association’s entitlement to attorney’s fees.  The parties “filed a joint stipulation for dismissal and asked the court to adopt the settlement agreement, dismiss the action, and retain jurisdiction to enforce the agreement and determine the Association’s entitlement to attorney’s fees.”

          The Association moved for fees under F.S. 720.305 and the prevailing party fee provision in the Declaration.  The court denied the motion.  The Association appealed.

          The Fourth DCA reversed, explaining:  “[A]lthough the Association voluntarily dismissed its action after the parties entered into a court-approved settlement agreement, this is not a situation where both parties compromised in an effort to settle the dispute.  . . .  Rather, under the settlement agreement, the Association uncompromisingly obtained the only relief sought on the only issue raised in this litigation: compliance with the declaration and removal of the encroaching fence.  This was sufficient for the Association to be considered the prevailing party.”  (Citations omitted.)  Isola Bella Homeowners Ass’n, Inc. v. Clement, __ So.3d __ (Fla. 4th DCA, NO. 4D20-2306, 10/27/2021), 2021 WL 4979008.

Fifth DCA affirms fee award in small claims case, rejecting argument that the proposal for settlement was invalid because offeror did not specifically invoke Fla.R.Civ.P. 1.442.  [Added 12/1/21]

          Medical center (“CFM”) sued an insurance company (“Progressive”) in county court claiming Progressive failed to pay CFM for services rendered to a patient insured with Personal Injury Protection (“PIP”) coverage.  CFM had an assignment of the patient’s claim.

          Progressive moved for a summary disposition on the ground that the services were not covered under the PIP policy, and subsequently sent CFM a proposal for settlement “incorporating all provisions set forth in Rule 1.442 and section 768.79.”  CFM moved to strike the proposal, arguing that the case was filed under the Small Claims Rules “and that Rule 1.442 was not invoked pursuant to Small Claims Rule 7.020(c).  CFM argued that in order for Progressive to serve a valid proposal for settlement, it must request that Rule 1.442 be applied to this case.”

          The trial court granted Progressive’s motion for summary disposition and awarded fees to Progressive based on its proposal for settlement, which had not been accepted.  CFM appealed.

          The Fifth DCA affirmed, concluding that the proposal for settlement was enforceable despite the fact that Progressive did not specifically invoke Rule 1.442.  The court noted that Fla.R.Civ.P. 1.010 “provides that the rules of civil procedure apply to all actions of a civil nature but excludes those cases in which the small claims rules apply.”  The court further stated, however, that “[u]nlike other rules of civil procedure, Rule 1.442 clearly specifies the cases to which it applies.  Despite the general statement of Rule 1.010, Rule 1.442 very clearly and unambiguously states that it ‘applies to all proposals for settlement authorized by Florida law.’”  That includes proposals for settlement in PIP cases.  “Therefore, by its own terms, Rule 1.442 would apply in this case.  Even if Rule 7.020 could be read to conflict with or contradict this conclusion, Rule 1.442 resolves any such conflict:  ‘This rule . . . supersedes all other provisions of the rules and statutes that may be inconsistent with this rule.’”  Accordingly, “Progressive was not required to specifically invoke Rule 1.442 in order for its proposal for settlement to be enforceable.”  Central Florida Medical and Chiropractic Center v. Progressive American Ins. Co., __ So.3d __ (Fla. 5th DCA, No. 5D21-29, 10/15/2021), 2021 WL 4806533.

Law firm’s contingent fee agreement arbitration clause did not violate Bar rules.  [Added 11/22/21]

          Former Clients filed sued Law Firm alleging legal malpractice.  The trial court entered an order compelling arbitration based on the parties’ contingent fee retainer agreement.  Former Clients appealed, challenging the retainer agreement as a whole and specifically challenging the arbitration provision in the agreement.  They contended that “the language used in the instant arbitration provision violates Rule 4-1.5(i), Rules Regulating the Florida Bar, and fails to give ‘the required written notice that [the client] should consider obtaining independent legal advice as to the advisability of entering into an agreement containing such mandatory arbitration provisions.’  Feldman v. Davis, 53 So.3d 1132, 1137 (Fla. 4th DCA 2011).”  (Footnote omitted.)  The Third DCA rejected this contention and affirmed.

          The court compared the arbitration provision with the language in Rule 4-1.5(i) and concluded they were “virtually identical” except “for a grammatical change from the third-person voice (‘you’) to the first-person voice (‘I’), and a slight difference between the second sentence of each provision.”  The court concluded:  “[T]he language used in the arbitration provision of the retainer agreement is in compliance with the requirements of Florida Bar rule 4-1.5(i): it provides the requisite notice and satisfies that rule’s express requirement that a retainer agreement mandating arbitration of fee disputes must ‘advis[e] . . . the potential client [that he or she] should consider obtaining independent legal advice as to the advisability of entering into an agreement containing such mandatory arbitration provisions.’  R. Regulating Fla. Bar 4-1.5(i).  The language utilized conforms in all material respects, and we reject appellants’ contention that these variances invalidate or render unenforceable the arbitration provision contained in the parties’ contingent fee agreement.”

          The court pointed out that the 2 cases relied on by Former Clients were inapposite because in those cases “the arbitration provision was held unenforceable because it did not contain any portion of the bold print notice required by rule 4-1.5(i).”   Ramkelawan v. Morgan & Morgan, P.A., __ So.3d __ (Fla. 3d DCA, No. 3D21-1143, 10/20/2021), 2021 WL 4888408.

Resolving conflict between DCAs, Supreme Court rules that section 57.105(7) did not apply to fee provision in domestic relations property settlement agreement.  [Added 10/12/21]

          Resolving a conflict between the Third DCA (Levy v. Levy, 307 So.3d 71 (Fla. 3d DCA 2020)) and the Fourth DCA (Sacket v. Sacket, 115 So.3d 1069 (Fla. 4th DCA 2013)), the Florida Supreme Court ruled that F.S. 57.105(7) did not apply to an attorney’s fee provision in a property settlement agreement (“PSA”) entered into by divorcing spouses.  The provision at issue stated in part:  “In the event that either party should take legal action against the other by reason of the other’s failure to abide by this Agreement, the party who is found to be in violation of this Agreement shall pay to the other party who prevails in said action, the prevailing party’s reasonable expenses incurred in the enforcement of this Agreement, said expenses to include, but not be limited to, reasonable attorney’s fees . . . .”  (Emphasis added.)

          Former Husband (“Husband”) had filed a motion to compel Former Wife (“Wife”) to comply with the PSA.  Husband requested fees in the motion, and Wife requested fees for defending.  Both relied on the fee provision in the PSA and the reciprocal provision of F.S. 57.105(7).

          The trial court denied Husband’s motion to compel and also denied Wife’s motion for prevailing party fees pursuant to section 57.105(7).  On appeal, the Third DCA reversed the ruling denying fees to Wife.  Husband sought Supreme Court review.

          The Supreme Court pointed out that section 57.105(7) “only applies to a provision that confers on a party the right to attorney’s fees while not affording a comparable right to the other party.  Indeed, though addressing a different issue, we have recently characterized the type of provision to which the statute applies as a ‘unilateral’ attorney’s fee provision.  [Citation omitted.]  Where a unilateral provision is involved, the statute transforms the one-sided provision into a reciprocal provision.”

          The fee provision in the PSA, however, was not unilateral.  It “does not confer the right to fees on one identifiable contracting party to the exclusion of the other party.  Rather, it entitles ‘either party’ to an award of attorney’s fees upon demonstrating that the other party violated the PSA.  Thus, the provision grants both parties precisely the same contractual right to attorney’s fees.  Put differently, neither party has a greater right to attorney’s fees than the other; nor is one party favored over the other.  To find that section 57.105(7) applies here would be to confer a right on the former wife that neither party had under the contract, namely the right to fees absent proof of a violation of the PSA.”

          Accordingly, the Court approved the result in Sacket and quashed LevyLevy v. Levy, __ So.3d __ (Fla., SC20-1195, 10/7/2021), 2021 WL 4614308

Fourth DCA reverses fee award, ruling that trial court erred in determining prevailing party.  [Added 10/7/21]

          Buyer contracted with Seller for purchase of real property and put a $10,000 deposit in escrow.  The contract had a liquidated damages clause that would apply if Buyer failed to diligently pursue financing.  Buyer quit her job 6 days before closing and, as a result, Buyer’s lender rejected the loan application.

          Seller told Buyer that, to show good faith, Seller would give Buyer a chance to “regroup” and get financing.  Seller also said the property would go back on the market as a contingency, with Buyer’s contract given top priority.  Ten days later, however, Seller informed Buyer that the contract was being cancelled due to Buyer’s failure to secure financing and that Seller was keeping the deposit as liquidated damages.

          Buyer sued for breach of contract and sought return of the $10,000 deposit as well as damages in the amount of about $2125 for storage expenses and fees.  Seller counterclaimed, asserting that Buyer breached by not diligently pursuing financing.  Buyer filed an affirmative defense seeking the deposit because the liquidated damages clause was unenforceable.

          The trial court ruled that Buyer breached the contract, awarded no damages to Seller because neither party “presented evidence or even argued as to the damages,” held the liquidated damages clause unenforceable, and ordered Seller to return the deposit to Buyer.  The court awarded prevailing party fees to Seller.

          Buyer moved for rehearing, claiming she was the prevailing party.  The court denied the motion, relying on Moritz v. Hoyt Enterprises, Inc. 604 So.2d 807 (Fla. 1992).  Buyer appealed.  The Fourth DCA reversed, distinguishing Moritz.  Buyer was the party who prevailed on the significant issues in the litigation.  “[T]he primary – if not only – ‘significant issue’ in the underlying litigation was not the recovery of damages arising from an alleged breach, but rather, who was entitled to the deposit.  In contrast, the primary issue in Moritz was whether the defendant was entitled to compensation for the damages that he incurred from the plaintiffs’ breach – specifically, because the defendant was forced to sell the property at a lower amount than was agreed to between the parties.  Id. at 808.  Thus, the defendant in Moritz had raised and prevailed on an issue that was separate from the retention of the deposit.”  Canon v. Ziadie, __ So.3d __ (Fla. 4th DCA, No. 4D21-356, 9/15/2021), 2021 WL 4188767.

Court erred in awarding fees under F.S. 768.79 because it miscalculated “judgment obtained” by including preoffer costs that were not taxable on date proposal for settlement was served.  [Added 9/29/21]

          Plaintiff served a proposal for settlement on the defendant Estate on March 21, 2019.  At that time Plaintiff had prepaid the expert fees to 2 of her experts who were scheduled to be deposed.  The contracts for each expert indicated that a refund was available up to a stated number of hours prior to the deposition if there was a cancellation.  The Estate rejected the proposal for settlement.

          Plaintiff prevailed at trial and, based on the rejected proposal for settlement, moved for fees under F.S. 768.79.  Plaintiff alleged that “she was entitled to recover her fees because her ‘judgment obtained’ exceeded the threshold under section 768.79 when all taxable costs incurred before service of the proposal were included.”  At the hearing on the motion, the Estate entered into evidence the contracts of the 2 experts containing the cancellation provisions.  Plaintiff presented no evidence on the experts’ cancellation policies.  The trial court granted Plaintiff’s fee motion.

          The Estate appealed, contending that the court miscalculated the “judgment obtained” by including the expert deposition fees that were prepaid by Plaintiff.  It was “undisputed that if those prepaid expert fees are not included in the calculation, the judgment obtained would be below the threshold to trigger a fee award under section 768.79.”  The Estate argued “that there is a distinction between the determination of which costs are taxable for purposes of triggering a proposal and which costs are taxable overall for a prevailing party” and claimed that “if it had accepted the proposal when it was served, both depositions would have been canceled and the prepayments would have been fully refunded to [Plaintiff] based on each doctor’s cancelation policy.”  Plaintiff asserted that, because the fees had been paid before service of the proposal for settlement, they were properly included in the court’s calculation.

          The Second DCA reversed, relying on the Supreme Court’s decision in White v. Steak & Ale of Florida, Inc., 816 So.2d 546 (Fla. 2002).  In White the Court stated that “that the ‘judgment obtained’ pursuant to section 768.79 includes the net judgment for damages and any attorneys’ fees and taxable costs that could have been included in a final judgment if such final judgment was entered on the date of the offer” (emphasis by court).  816 So.2d at 551.

          The Second DCA summarized:  “The fact that the experts’ deposition fees were prepaid before [March 21, 2019] does not necessarily mean that they were taxable as costs for purposes of an attorney’s fee award under section 768.79.  [Plaintiff], as the moving party, had the burden ‘to show that all requested costs were reasonably necessary either to defend or prosecute the case at the time the action precipitating the cost was taken.’  [Citations omitted.]  . . .  When the proposal was served, neither doctor’s deposition had been taken.  Thus, their fees at the time of the proposal would not have been taxable under the guidelines.”  Plaintiff presented no evidence that the payments were nonrefundable at the time of the proposal for settlement.  Because the prepayments were refundable if the depositions had been cancelled on March 21, 2019, those fees were not taxable for purposes of a fee award under section 768.79 and should not have been included in the trial court’s calculation of the “judgment obtained.”  The judgment obtained therefore “falls below the statutory threshold to trigger a fee award under section 768.79(6)(b).”  Estate of Sweeney v. Washington, __ So.3d __ (Fla. 2d DCA, Nos. 2D20-1848, 2D20-2520, 9/3/2021), 2021 WL 3934543.

Supreme Court holds that post-offer prejudgment interest is excluded from amount of “judgment obtained” for purposes of fee entitlement under F.S. 768.79.  [Added 9/23/21]

          Exercising its discretionary jurisdiction, the Florida Supreme Court addressed the following certified question:  “For purposes of calculating whether a plaintiff has met the threshold amount of difference between and offer of judgment and the judgment entered for purposes of section 768.79, Florida Statutes, must post-offer prejudgment interest be excluded from the amount of the ‘judgment obtained’?”  The Court answered the question in the affirmative, approving the Fourth DCA’s decision in Petri Positive Pest Control, Inc. v. CCM Condominium Ass’n, 271 So.3d 1001 (Fla. 4th DCA 2019), and disapproving the decisions of the Third DCA and First DCA in Perez v. Circuit City Stores, Inc., 721 So.2d 409 (Fla. 3d DCA 1998), and Phillips v. Parrish, 585 So.2d 1038 (Fla. 1st DCA 1991), to the extent they are inconsistent with the Court’s opinion.

          The Court summarized:  “[Petitioner] CCM argues that the plain meaning of section 768.79 does not exclude post-offer prejudgment interest from the ‘judgment obtained’ that is compared to a rejected settlement offer when determining whether to award attorneys’ fees under the offer of judgment statute.  [Respondent] Petri counters that this Court in White [v. Steak & Ale of Florida, Inc., 816 So.2d 546 (Fla. 2002)] already held that post-offer prejudgment interest is to be excluded and that the White formula has been consistently and workably applied and reaffirmed for nearly two decades.  Because this Court’s precedent is not clearly erroneous, we decline to recede from the White formula.”  CCM Condominium Ass’n, Inc. v. Petri Positive Pest Control, Inc., __ So.3d __ (Fla., SC19-861, 9/9/2021), 2021 WL 4096926.

​Second DCA rules that offers of judgment apply in small claims cases.  [Added 9/15/21]

          Davis sued Clark in small claims court for breach of contract.  Clark made an offer of judgment “pursuant to Section 768.79” to resolve the claim for $100.  The offer did not mention Fla.R.Civ.P. 1.442.  Davis did not accept the offer.  Clark prevailed at trial and moved for fees based on his offer of judgment.  The trial court granted the motion.

          Davis appealed, contending that Clark was not entitled to fees because he did not “invoke” rule 1.442 in the offer.  Davis also argued, “[i]ncongruently,” that rule 1.442 does not apply in small claims proceedings.  The Second DCA affirmed, noting that “[u]nfortunately for Ms. Davis, section 768.79 gave Mr. Clark a substantive right to recover his fees.”  (Footnote omitted.)  The argument that the offer of judgment statute does not apply in small claims actions “flies in the face of Florida case law.”  (Citations omitted.)  Davis v. Clark, __ So.3d __ (Fla. 2d DCA, No. 2D21-171, 8/20/2021), 2021 WL 3686059.

Although mortgage was unenforceable due to statute of limitations, borrowers who were prevailing parties were entitled to fees under F.S. 57.105(7).  [Added 9/9/21]

          Borrowers executed a note and mortgage with the original lender.  The mortgage was eventually assigned to Mortgagee.  Mortgagee sued to foreclose.  Borrowers answered and asserted that the limitations period had run.  Ruling that the contract was unenforceable due to the statute of limitations, the trial court granted summary judgment for Borrowers.  The court, however, denied prevailing party fees to Borrowers due to prior Fourth DCA decisions (Deutsche Bank Trust Co. Americas v. Page, 274 So.3d 1116 (Fla. 4th DCA 2019) and Nationstar Mortgage LLC v. Glass, 219 So.3d 896 (Fla. 4th DCA 2017)).

          Borrowers appealed.  The Fourth DCA reversed, noting that the Florida Supreme Court had overruled the decision relied on by the trial court.  The appeals court applied Page v. Deutsche Bank Trust Co. Americas, 308 So.3d 953 (Fla. 2020), and concluded:  “[I]t is undisputed that a contract existed between the parties, which contract was assigned to the foreclosing party. Second, the mortgagors prevailed in an action with respect to the contract. Therefore, the mortgagors were entitled to attorney’s fees pursuant to section 57.105(7).”

          The trial court’s ruling that the mortgage was unenforceable due to the statute of limitations “does not change the result.  . . .  [T]he contract existed.  The fact that it was determined to be unenforceable does not prevent mortgagors from recovering attorney’s fees pursuant to its provisions when they prevailed on the action with respect to the contract.”  Maisonneuve v. Situs Investments, LLC, __ So.3d __ (Fla. 4th DCA, No. 4D20-2397, 8/18/2021), 2021 WL 3642126.

Court erred in relying on Fla.R.Civ.P. 1.525 to deny motion for fees in divorce action.  [Added 9/3/21]

          Former wife Garza moved for fees after entry of the parties’ divorce judgment.  The motion for fees under F.S. 61.16 was filed 29 days after entry of the amended judgment, but former husband Juhl claimed that the motion was filed more than 30 days after the original judgment.  Juhl relied on Mook v.Mook, 873 So.2d 363 (Fla. 2d DCA 2004), in which the court applied Fla.R.Civ.P. 1.525 and its 30-day deadline for filing fee motions.  The trial court denied the motion, stating that it was without jurisdiction to determine fees and costs after the 30 days had expired.  Garza appealed.

          The Second DCA reversed.  In 2005 the Supreme Court promulgated Florida Family Law Rule of Procedure 12.525, which provided that Fla.R.Civ.P. 1.525 did not apply in family law matters.  “This 2005 amendment abrogated the principles applied in Mook, and to this day, rule 1.525 does not apply to family law cases.”  Fee proceedings in family law cases are governed by F.S. 61.16, which “does not impose a thirty-day limitation on a trial court’s postjudgment jurisdiction to consider fee motions.  Rather, it authorizes fee awards in family law cases ‘from time to time [and] after considering the financial resources of both parties.’  § 61.16(1).  Under section 61.16, the court below had jurisdiction to entertain Garza's motion for fees.”  (Footnote omitted.)  Juhl v. Juhl, __ So.3d __ (Fla. 2d DCA, No. 2D20-1176, 8/13/2021), 2021 WL 3572850.

Condo unit owners not entitled to prevailing party fees despite condo association voluntarily dismissing foreclosure action against them.  [Added 8/6/21]

          Avanti Condominium Association filed a foreclosure action against Unit Owners.  Avanti later voluntarily dismissed the suit because the mortgage holder foreclosed its superior lien.  Unit Owners claimed that they were the prevailing parties and sought fees.  The trial court denied the motion.

          The First DCA affirmed.  Ordinarily, when the plaintiff voluntarily dismisses the case, the defendant is the prevailing party for fee award purposes.  But there are exceptions to this general rule when circumstances indicate that the defendant really did not prevail.  This case fell within the exception.  “Avanti voluntarily dismissed its case only after its foreclosure claim became moot because a superior lienor foreclosed.  Although Avanti could not foreclose its lien, it could recover at least a portion of what it was due from the new property owner.  Conversely, the upshot for [Unit Owners] was that they lost ownership of their property without prevailing on a significant issue in this litigation.  The trial court was thus well within its discretion to conclude that Avanti’s dismissal did not make [Unit Owners] prevailing parties.”  Georges v. Avanti Condominium Ass’n, __ So.3 __ (Fla. 1st DCA, No. 1D20-1192, 7/13/2021), 2021 WL 2933603.

Second DCA reverses order denying motion for fees and sanctions under F.S. 57.105(1), finding that opposing party’s motion for fees was frivolous.  [Added 7/29/21]

          Suarez and National Packaging Equipment (“Defendants”) filed a motion for fees under F.S. 48.23(3) and 57.105(7) after a foreclosure case filed against them by Bank was involuntarily dismissed.  Bank asserted that the fee motion was frivolous because Defendants had not pleaded entitlement to fees and filed its own motion for fees and sanctions under F.S. 57.105(1).  The trial court denied both motions, and both parties appealed.

          The Second DCA affirmed the denial of fees to Defendants but reversed the order denying fees to Bank.  Defendants argued that Ganz v. HZJ, Inc., 605 So.2d 871 (Fla. 1992), holds that the pleading requirement of Stockman v. Downs, 573 So.2d 835 (Fla. 1991), does not apply to requests for fees pursuant to section 57.105.  The appeals court rejected this contention, noting that Ganz dealt with claims for fees as sanctions under section 57.105(1) and not with contractual fee reciprocity to the prevailing party under section 57.105(2) (now subsection (7)) – which was the applicable subsection in the instant case.

          In affirming the denial of fees to Defendants, the court summarized:  “Succinctly stated, ‘[t]he [Stockman] rule applies ‘in situations where the entitlement to fees and costs existed from the outset based upon a contract or statute which was the subject of the underlying claim or defense.’  [Citations omitted.]  Ganz addressed entitlement to fees based on the ‘inherent nature of the underlying claim or defense’ rather than ‘entitlement to fees based on some event that occurred during the cause of action.’  [Citation omitted.]  The basis for [Defendants’] motion was known at the outset of the foreclosure action and based upon events occurring during that action.”

          Further, the court reversed the denial of fees to Bank.  “At a minimum, [Defendants’] counsel should have known that the existing law precluded fees – particularly after being presented with relevant case law in the Bank’s motion, served on [Defendants] in compliance with section 57.105(4) prior to filing it with the court.  Section 57.105(1) clearly provides that ‘the court shall award a reasonable attorney’s fee’ in situations like this one.”  Suarez v. Bank of New York Mellon Trust Co., __ So.3d __ (Fla. 2d DCA, No. 2D20-1850, 7/7/2021), 2021 WL 2815419.

On remand from Supreme Court, Fourth DCA reverses court’s denial of motion for fees under F.S. 57.105(7).  [Added 7/26/21]

          The Florida Supreme Court quashed the Fourth DCA’s decision in a case in which the appeals court originally affirmed a trial court order denying a motion for attorney’s fees under F.S. 57.105(7).  Ghent v. HSBC Mortgage Services, Inc., 259 So.3d 883 (Fla. 4th DCA 2018).  The Supreme Court ordered reconsideration of the decision based on Page v. Deutsche Bank Trust Co. Americas, 308 So.3d 953 (Fla. 2020).  On reconsideration, the Fourth DCA reversed the trial court.

          The underlying suit had been involuntarily dismissed because the holder of a mortgage failed to prove standing at the inception of the suit.  As a result, the court denied the motion for reciprocal fees under section 57.205(7), concluding that “[a] stranger to the contract cannot recover attorney’s fees based on the contract.”  The Fourth DCA had affirmed, relying on Nationstar Mortgage LLC v. Glass, 219 So.3d 896 (Fla. 4th DCA 2017).

          But in Page, the Supreme Court abrogated Glass.  The Court “interpreted section 57.105(7) to require two conditions for the award of attorney’s fees:  (1) ‘the existence of ‘a contract [that] contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract[;]’’ and (2) “that ‘the other party’ must ‘prevail[ ] in any action, whether as plaintiff or defendant, with respect to the contract.’’ [Page] at 959 (first and third alterations in original) (quoting § 57.105(7), Fla. Stat.).”

          Both of these conditions were met in the instant case.  The involuntary dismissal for failure to prove standing at the inception of the suit was not determinative because, in Page, the Supreme Court stated “that there is no basis in section 57.105(7) ‘on which to conclude that a contract containing the requisite provision must be shown to be mutually enforceable on the day suit is filed.’”  Ghent v. HSBC Mortgage Services, Inc., __So.3d __ (Fla. 4th DCA, No. 4D17-2187, 6/30/2021), 2021 WL 2673169.

Rowe requirement that court make specific findings to support fee award not limited to situations where lodestar figure is reduced or enhanced.  [Added 7/8/21]

          Insureds settled their homeowners insurance claim with Insurer and sought fees.  After an evidentiary hearing that was not transcribed, the trial court awarded fees to Insureds.  The court reduced both the requested hourly rate and the requested number of hours, but did not make specific findings as to why it made the reductions.

          Insureds appealed.  They did not challenge the lodestar amount, but rather they contended that “the trial court inexplicably reduced their requested number of hours from 331.20 to 200 and the hourly rate from $425 to $350 without providing specific reasons for doing so.”  They argued that the court’s failure to make specific factual findings pursuant to Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985) constituted error on the face of the record, rendering the lack of a hearing transcript irrelevant.

          The Second DCA agreed and affirmed.  “The requirement for specific findings as set forth in Rowe is not limited to situations where trial courts reduce or enhance the lodestar figure.  Indeed, as this court has previously explained, Rowe requires a specific explanation if a trial court reduces requested fees without regard to the lodestar amount.  [Citations omitted.]  While trial courts are not bound by expert opinions provided at evidentiary hearings or by attorney affidavits submitted at such hearings, they may only reduce attorneys’ fees that they deem to be excessive if they make specific findings to support that determination.”

          The appeals court rejected Insurer’s argument that affirmance was required due to the lack of a hearing transcript.  “Lack of a transcript or stipulated statement of the facts might require an affirmance in cases involving other kinds of challenges to fee awards.  But the ‘rule is not applicable where a trial court order is fundamentally erroneous on its face for failure to make required findings.’”  Citizens Prop. Ins. v. Anderson, 241 So.3d 221, 224 (Fla. 2d DCA 2018).”  Lizardi v. Federated National Ins. Co., __ So.3d __ (Fla. 2d DCA, No. 2D19-2115, 6/11/2021), 2021 WL 2385825.

Florida public policy regarding reciprocal under F.S. 57.105 gives way to choice-of-law provision in consumer credit contract.  [Added 6/28/21]

          Giles entered into a consumer credit card agreement.  He later prevailed in litigation over agreement with Portfolio Recovery Associates (“PRA”).  The agreement had a unilateral prevailing party attorney’s fees provision in favor of PRA, as well as a choice-of-law provision specifying that South Dakota law applied.  South Dakota law permits unilateral fee provisions, while F.S. 57.105 does not.

          Giles appealed the trial court’s denial of his motion for fees, arguing that “public policy in Florida entitles him to reciprocal attorney’s fees under section 57.105.”  The First DCA affirmed because South Dakota law controlled the parties’ agreement.  “See Se. Floating Docks, Inc. v. Auto–Owners Ins. Co., 82 So.3d 73, 81 (Fla. 2012) (recognizing that § 57.105 does not advance ‘a sufficient public policy concern to override the strong policy of protecting freedom of contract’); Walls v. Quick & Reilly, Inc., 824 So.2d 1016, 1019 (Fla. 5th DCA 2002) (finding that public policy 2 in Florida underlying reciprocal attorney’s fee awards was insufficient to outweigh the application of a choice-of-law provision in a contract).”

          A concurring opinion addressed Giles’ argument that Southeastern Floating Docks should be distinguished because it dealt with a commercial contract rather than a consumer credit contract, pointing out that “the Court made no such distinction in Southeastern Floating Docks.”  Giles v. Portfolio Recovery Associates, LLC, __ So.3d __ (Fla. 1st DCA, No. 1D21-324, 6/10/2021), 2021 WL 2373709.

Insurer who, as subrogee, unsuccessfully sued defendant unit owners for negligence is liable for prevailing party fees under Condominium Act because it invoked Act as basis of defendants’ alleged liability.  [Added 6/23/21]

          As subrogee for its insureds, insurer UPCIC sued the owners of a condominium unit over a water leak that damaged the insureds’ units.  The original complaint was for the common law negligence of the defendants or their family members, tenants, or guests who occupied their unit.  UPCIC amended its complaint to make the same allegations but also alleged that the defendants were liable for the negligence of their guests under section 718.111 of the Condominium Act.

          After a nonbinding arbitration decision for the defendants, UPCIC voluntarily dismissed the complaint.  The defendants moved for prevailing party fees under the Condominium Act.  UPCIC opposed the motion, arguing that it did bring the claim against defendants under the Condominium Act but rather brought it for “ordinary common law negligence” and that the Act does not provide a private right of action for unit owners or their subrogees.  The trial court denied the fee motion.

          The defendants appealed, contending that “UPCIC subjected itself to liability for attorney’s fees under the Condominium Act by alleging that the Appellants were liable for the negligence of others based on section 718.111(11)(j) of the Condominium Act and that UPCIC's status as the Insureds’ subrogee cannot shield them from liability for attorney’s fees.”

          The Second DCA reversed.  “Like the plaintiffs in Diamond Aircraft [Industries, Inc. v. Horowitch, 107 So.3d 362 (Fla. 2013)], Brown [v. Gardens by the Sea S. Condo. Ass’n, 424 So.2d 181 (Fla. 4th DCA 1983), and Rustic Village [, Inc. v. Friedman, 417 So.2d 305 (Fla. 3d DCA 1982)], UPCIC expressly invoked a statutory provision to support its claim for relief against the [defendants].  By seeking the benefits that it thought section 718.111(11)(j) provided for subrogees of condominium unit owners, UPCIC exposed itself to fee liability under the Condominium Act's prevailing party attorney’s fees provision.  See Diamond Aircraft, 107 So. 3d at 369; Brown, 424 So. 2d at 184; Rustic Vill., 417 So. 2d at 305-06.  The fact that UPCIC was ultimately unsuccessful in making its claim against the [defendants] under section 718.111(11)(j) – and could not be successful since the section does not create a private right of action – is irrelevant.  UPCIC exposed itself to liability for prevailing party attorney’s fees by making a claim under the Condominium Act.  Therefore, even though the claim was not one contemplated by section 718.111(11)(j), UPCIC is liable for attorney's fees under the Condominium Act’s fee provision.”  Mack v. Universal Property & Casualty Ins. Co., __ So.3d __ (Fla. 2d DCA, No. 2D19-3438, 5/26/2021), 2021 WL 2125124.

Concluding prior case was implicitly overruled by Supreme Court decision, Third DCA rules that F.S. 57.105(7) authorizes fee award to prevailing borrower in action on nonrecourse loan.  [Added 6/8/21]

          Lender filed a foreclosure action alleging that the death of Castellanos’s husband triggered Lender’s entitlement to payment in full of a loan secured by a reverse mortgage.  Castellanos prevailed on summary judgment.  She claimed entitlement to fees based on the reciprocity provision in F.S. 57.105(7).  Lender opposed her fee claim, arguing that because the loan was nonrecourse Lender could not have claimed fees against Castellanos had Lender prevailed – and so she should not be able to use section 57.105(7) to get a fee award from Lender.  The trial court agreed with Lender, relying on the Third DCA’s decision in Suchman Corp. Park, Inc. v. Greenstein, 600 So.2d 532 (Fla. 3d DCA 1992).

          Castellanos appealed, contending that Suchman was no longer good law following the Supreme Court’s decision in Page v. Deutsche Bank Tr. Co. Ams., 308 So.3d 953 (Fla. 2020).  The Third DCA conceded that the “strict holding of Page is not directly applicable,” but reversed, finding the “reasoning and analysis” used in Page “both applicable and dispositive.”

          Per Page, there are 2 “statutory conditions” in section 57.105(7) that must be met before the reciprocity requirement applies:  (1) the contract must have “a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract”; and (2) the other party must prevail in any action with respect to the contract.

          Castellanos met these conditions.  “[I]t is undisputed that Castellanos was the prevailing party with respect to the contract, and therefore satisfied the second condition of entitlement to fees under the reciprocity provision of section 57.105(7).  Therefore where, as here, the agreement contains a provision allowing unilateral attorney’s fees when one party is required to take action to enforce the agreement, and the other party to the agreement prevails in such action, section 57.105(7) applies to make the unilateral provision reciprocal and authorizes an award of attorney’s fees to that prevailing party.”

          The court concluded:  “To the extent our decision in Suchman holds that, as a matter of law, the reciprocity provision of 57.105(7) cannot apply to authorize an award of attorney’s fees to a prevailing borrower on an underlying nonrecourse loan, we determine such a holding has been implicitly overruled by the Florida Supreme Court’s decision in Page.”  Castellanos v. Reverse Mortgage Funding, LLC, __ So.3d __ (Fla. 3d DCA, No. 3D20-472, 5/12/2021), 2021 WL 1897069.

          See also Rubiella v. Cascade Funding RM3 Acquisitions Grantor Trust, __ So.3d __ (Fla. 3d DCA, No. 3D20-0816, 5/19/2021), 2021 WL 1991232; Gartner v. Reverse Mortgage Solutions, Inc., __ So.3d __ (Fla. 1st DCA, No. 1D20-772, 6/30/2021), 2021 WL 2678388.

Medical provider that obtained payment from insurer for PIP benefit payments, but not statutory penalty or postage, within 30 days of giving written notice not entitled to attorney’s fees.  [Added 5/13/21]

          Medical Provider, as assignee, gave written notice to Insurer seeking payment for PIP benefits.  Insurer paid the PIP benefits within 30 days of the notice, but did not pay the statutory penalty and postage.  Provider sued Insurer in county court for $181.92 in penalty and postage.  Insurer denied owing either penalty or postage “because the insured’s PIP benefits were exhausted when the insurer paid $10,000.00 for this claim, the maximum amount available under the policy.”  After several years Insurer filed a confession of judgment paid the penalty and postage.

          Provider filed a motion to determine entitlement to fees under F.S. 27.428(1).  Insurer contended “that the provider was not entitled to fees or costs because the provider only received a judgment on its claim for penalty and postage, not for PIP benefits.”  The trial court denied Provider’s motion for fees.  Provider appealed.

           The Fourth DCA affirmed.  “This court and the Florida Supreme Court have consistently held that a statute awarding attorney’s fees is in derogation of the common law rule that each party pay its own attorney’s fees, and thus must be strictly construed.  . . .  Here, because the insurer timely paid the provider’s PIP claim for the insured’s benefits within thirty days of the provider’s demand letter, as the statute provides, the insurer is not obligated to pay attorney’s fees.  See § 627.736(10)(d), Fla. Stat. (2018).  If the Legislature had intended for attorney’s fees to be otherwise recoverable under the statute, it would have said so.”  (Citations omitted.)  South Florida Pain & Rehabilitation of West Dade v. Infinity Auto Ins. Co., __ So.3d __ (Fla. 4th DCA, No. 4D21-438, 4/21/2021), 2021 WL 1556637.

Court erred in awarding fees to insureds under F.S. 627.428 where their suit against insurer “was not a necessary catalyst to resolve the dispute.”  [Added 5/7/21]

          Insureds’ home suffered hurricane damage.  On August 2, 2018, Insureds reported the claim to Insurer.  On September 6, Insurer replied that there was coverage for damage to the interior of the home but that the roof damage was caused by excluded wear and tear.  Insurer’s estimate of damages was below the $7779 deductible.  This letter requested submission of a Sworn Proof of Loss within 60 days.  It also stated that the policy had an appraisal mechanism and that, if the appraisal process determined that loss exceeded the deductible, Insurer would then proceed with repairs using its preferred contractor.

          On October 10 Insureds’ counsel sent a letter of representation and a Sworn Proof of Loss along with a damage estimate of $35,456 that included roof damage.  Five days later on October 15 Insurer emailed a letter to counsel disputing the scope of loss or the amount of damages and demanding an appraisal of the amount of loss and scope of repairs.  Less than 3 hours later Insureds filed suit for breach of contract.  Shortly after suit was filed Insurer moved to compel appraisal.  An appraisal award was entered for $35,819, which included roof repairs.  Insurer repaired the property.

          Insureds moved for fees under F.S. 627.428, alleging that they were entitled to fees because Insurer “denied coverage for the roof before counsel got involved in the case.”  The trial court agreed and entered a fee award for Insureds.  Insurer appealed.

          The Fourth DCA reversed.  The issue when an insured moves for fees is “whether the suit was filed for a legitimate purpose, and whether the filing acted as a necessary catalyst to resolve the dispute and force the insurer to satisfy its obligations under the insurance contract.”  (Citation omitted.)  In this case, the Fourth DCA concluded that the suit “was not a necessary catalyst to resolve the dispute and force the insurer to satisfy its obligations under the insurance contract.  While there was a dispute over the roof, there was not a breakdown in the claims-adjusting process before the insureds filed suit.  On September 6, 2018, about a month after the insureds reported the loss, [Insurer] admitted coverage for the interior but declined to repair the roof, asserting that the damage to the roof was caused by wear and tear.  However, in this letter, [Insurer] requested a Sworn Proof of Loss within 60 days if the insureds disagreed with its assessment of the scope of repairs, and advised the insureds of their right to an appraisal for resolving any disagreement over the cost and scope of repairs.”

          The court further observed that “the insureds’ lawsuit was the classic ‘race to the courthouse’ that served no legitimate purpose.  There was never a breakdown in the claims-adjusting process that justified the filing of the lawsuit.  [Insurer] was working to resolve the claim within the contract, and never took any steps to breach the contract.  Contrary to the insureds’ argument, the coverage position that [Insurer] took prior to the lawsuit with respect to the roof was not an anticipatory breach of the contract, as the appraisal process would address the insureds’ entire claim, including the roof.”  People’s Trust Ins. Co. v. Farinato, __ So.3d __ (Fla. 4th DCA, No. 4D20-866, 4/7/2021), 2021 WL 1310947.

Order awarding fees based on proposal for settlement reversed because proposal was premature in violation of Fla.R.Civ.P. 1.442.  [Added 4/22/21]

          Insured Arizone sued Insurer for breach of contract on March 19, 2016.  An amended complaint was filed on August 18, 2016, adding Simon as a plaintiff.  Insurer served proposals for settlement on both plaintiffs on August 29, 2016.  The proposals were not accepted.  In December 2016 Insurer served plaintiffs with other proposals for settlement, which also were not accepted.  The jury trial resulted in a judgment for Insurer.

          Insurer moved for fees based on the rejected proposals for settlement.  The trial court found the December proposals unenforceable, but awarded fees based on the August proposals.  Insureds appealed, contending the August proposal to Simon was invalid because it was filed prematurely under Fla.R.Civ.P. 1.442.  The Second DCA agreed and reversed.

          Under rule 1.442, a proposal for settlement may be served “no earlier than 90 days after the action has been commenced.”  The court summarized the parties’ arguments this way:  “Mrs. Simon asserts that the date on which ‘the action has been commenced’ must be analyzed as to each individual plaintiff and is not limited to the date the initial complaint was filed.  Mrs. Simon argues that the date she was added as a plaintiff – August 18, 2016 – was the date the action commenced as to her.  As such, the proposal served on her a mere eleven days later was premature and therefore unenforceable.  Homeowners Choice, on the other hand, contends that an action can be commenced only once – at the time the initial complaint is filed – and thus the ninety days should be calculated from that date regardless of when all of the plaintiffs have been added to the action.”

          Citing to cases from the Third and Fourth DCAs, the appeals court agreed with Insureds.  “[W]e hold that the critical date for determining whether the proposal for settlement served by Homeowners Choice on Mrs. Simon was timely was the date that Mrs. Simon commenced the breach of contract action – the date on which she became a plaintiff.  Because Mrs. Simon did not become a plaintiff in the action until August 18, 2016, the proposal for settlement served on her on August 29, 2016, violated the express ninety-day requirement of rule 1.442(b) and was therefore unenforceable.”  Arizone v. HomeownersChoice Property & Casualty Co., Inc., __ So.3d __ (Fla. 2d DCA, No. 2D18-1116, 3/17/2021), 2021 WL 983114.

Although inadvertent cut-and-paste of incorrect citation may have occurred, Fourth DCA reverses denial of plaintiff’s motion for fees because under facts of case defendant had sufficient notice of basis of plaintiff’s claim.  [Added 4/11/21]

          In a case that “had a number of twists and turns due to the number of attorneys who represented Plaintiff and the number of times she proceeded pro se,” Plaintiff sued alleging a wrongful eviction.  Her complaint sought damages and attorney’s fees, and in her answer to Defendant’s counterclaim Plaintiff alleged that Defendant’s claims were barred by F.S. 83.67(6).  The trial court rendered judgment for Plaintiff, finding that Defendant violated F.S. 83.67(6) and reserved jurisdiction to consider costs and fees.

          Plaintiff moved for fees, with the motion citing an administrative rule concerning arbitration.  The motion noted that the trial court had entered judgment for Plaintiff but did not cite any statute as grounds for fees.  At the hearing, defense counsel conceded that Plaintiff was entitled to fees under F.S. 83.67 for prevailing on the constructive eviction claim.  After protracted proceedings (during which Plaintiff changed counsel and for some periods represented herself), the trial court ruled that Plaintiff’s entitlement to fees “was waived for failure to file a proper motion” and denied Plaintiff’s claim for fees. 

          Plaintiff appealed, contending that she was entitled to fees despite not specifically citing the statute in her initial fee motion because “Defendant was sufficiently apprised of her argued basis for fees via her complaint and she did not have to cite the fee statute in her initial fee motion.”  The Fourth DCA agreed and reversed.

          Plaintiff made 3 arguments that “generally are insufficient to place the opposing party on notice of the grounds in a fee motion”:  (1) in the complaint she asked for fees based on unlawful eviction; (2) her answer to the counterclaim identified F.S. 83.67 as a basis for denying the counterclaim and awarding fees to her; and (3) the court cited F.S. 83.67(6) as the basis for damages and fees in the judgment.  “in addition to the above three arguments, Plaintiff makes an additional, compelling argument. Significantly, at the first hearing conducted on the original fee motion, Defendant conceded that Plaintiff would be entitled to fees as liability for constructive eviction, and the final judgment clearly awarded damages for constructive eviction. Based on that concession, Defendant cannot persuasively argue she was not on notice that Plaintiff was seeking fees in her original motion as additional damages for constructive eviction.”

          As an aside, the appeals court pointed out that “[i]t is probable that this appeal comes to us because an attorney inadvertently cut and pasted the wrong citation of legal authority from another document in crafting the fee motion.”  Nugent v. Michelis, __ So.3d __ (Fla. 4th DCA, No. 4D20-523, 3/10/2021), 2021 WL 926560.

Substantial fee award based on counsels’ current rates affirmed in case filed in 2010 , but award of prejudgment interest reversed.  [Added 4//21]

          Plaintiff filed suit against Tobacco Company in 2010.  After 5 trials, she obtained a $6.4 million compensatory damages judgment.  The trial court ruled that Plaintiff was entitled to fees and costs incurred from the date of a November 2010 proposal for settlement.  The court awarded more than $7 million in fees and $1 million in pre-judgment interest.

          Tobacco Company appealed.  It argued that the court erred in calculating the fee award based on the current billing rates of Plaintiff’s lawyers.  The First DCA rejected that argument, relying on Florida Dept. of Agriculture & Consumer Services v. Bogorff, 132 So.3d 249 (Fla. 4th DCA 2013) to “find no abuse of discretion under the unusual circumstances of this case.”

          As to the award of prejudgment interest, however, the appeals court reversed.  Prejudgment interest was not warranted because the court had used the “current rate approach” when making the fee award.  “[T]he current rate approach – which will generally result in a higher fee award – already includes the time value of money that an award of prejudgment interest would partially replicate or possibly duplicate.  For this reason, we reverse with instructions to vacate the award of pre-judgment interest.”  Philip Morris USA, Inc. v. Brown, __ So.3d __ (Fla. 1st DCA, Nos. 1D19-882, 1D19-1309, 3/11/2021), 2021 WL 925559.

Acceptance of intervening proposal for settlement rendered subsequent attempt to accept initial proposal invalid.  [Added 4/8/21]

          Defendants Karen and Parker Ketterling were sued by Morris over an auto accident.  The Ketterlings served a joint proposal on Morris.  Later that day Morris served an offer on each Ketterling individually.  Prior to expiration of the offer, Karen Ketterling filed a notice of acceptance.  The next day Morris filed a notice accepting the offer that the Ketterlings had made to her.  Morris claimed that the offer to her remained open because it had not been withdrawn.  The trial court granted Morris’s motion to enforce the settlement.

          The First DCA reversed.  The court stated the issue before it as:  “[W]hether the intervening proposal for settlement and acceptance of that intervening offer rendered the initial proposal for acceptance invalid.”  F.S. 768.79 and Fla.R.Civ.P. 1.442 provide that there are only 2 ways to withdraw a proposal for settlement:  expiration of time; and serving a written withdrawal of the offer on the offeree before the offeree files an acceptance.  Although neither of those situations occurred, the Ketterlings contended that their offer to Morris “could not have remained valid because Ms. Morris could not have released Karen Ketterling from liability twice.  One of the conditions in the Ketterlings offer was for Ms. Morris to ‘dismiss all claims arising out of the motor vehicle accident by the Plaintiff,’” Morris, against the Ketterlings.

          The court concluded:  “Since Karen Ketterling accepted Ms. Morris’s offer prior to Ms. Morris accepting the Ketterlings’ offer, Ms. Morris would not have been able to fulfill her obligation under the Ketterlings’ offer. Because Ms. Morris could not fulfill all of her obligations, the Ketterlings’ offer was no longer valid.”  Ketterling v. Morris, __ So.3d __ (Fla. 1st DCA, No. 1D20-37, 3/10/2021), 2021 WL 911173.

Court erred in denying motion for fees on ground that proposal for settlement was ambiguous.  [Added 3/30/21]

          Plaintiff sued her insurance carrier, Defendant, in a dispute over a water damage claim.  Defendant served a proposal for settlement that attached a release.  The release mentioned Plaintiff “on her own behalf, and on behalf of her . . . assigns . . .”  Plaintiff did not accept the proposal.

          Defendant prevailed in the case on summary judgment.  Defendant moved for fees based on the rejected proposal for settlement, pursuant to F.S. 768.79 and Fla.R.Civ.P. 1.442.  Plaintiff responded that Defendant’s proposal was ambiguous because of the term “assigns.”  Defendant was aware that Plaintiff executed an assignment of benefits to a third party water mitigation company.  The trial court denied Defendant’s motion for fees.  Defendant appealed.

          The Fourth DCA reversed, relying on Costco Wholesale Corp. v. Llanio-Gonzalez, 213 So.3d 944 (Fla. 4th DCA 2017) in concluding that the proposal was not ambiguous.   “[T]he defendant’s proposal for settlement and accompanying general release were sufficiently clear and definite to allow the plaintiff to make an informed decision on whether to accept the proposal.  The proposal’s only reasonable interpretation was that the defendant was offering $1,000 to the plaintiff to settle her case, and the accompanying release would prevent the plaintiff from further seeking damages from the defendant relating to the water loss.  The plaintiff ‘nitpicked’ the defendant’s proposal and accompanying release where the asserted ambiguity could not have reasonably affected her decision on whether to accept the proposal.  Specifically, the word ‘assigns’ in the line of the standard release defining the plaintiff or ‘releasor’ as including ‘assigns’ and the like, does not create an ambiguity due to the plaintiff’s preexisting assignment of benefits to the third party.  The only reasonable interpretation of the proposal and release – read together as a whole – is expressly limited to resolving the claims which the plaintiff asserted or could have asserted in the underlying lawsuit.”  American Integrity Ins. Co. of Florida v. Branford, __ So.3d __ (Fla. 4th DCA, No. 4D19-3950, 2/24/2021), 2021 WL 718123.

         See also Tower Hill Signature Ins. Co. v. Kushch, __ So.3d __ (Fla. 4th DCA, No. 4D20-1966, 2/16/2022), 2022 WL 472963 (reversing denial of award based on alleged ambiguity and criticizing nitpicking).

Second DCA determines that lodestar approach of Florida Patient’s Compensation Fund v. Rowe does not apply to fees ordered as part of criminal restitution.  [Added 3/22/21]

          Convicted Criminal Defendant was ordered to pay the victim’s attorney’s fees as part of restitution.  Defendant appealed, contending that the trial court erred in failing to make reasonable fee findings as set forth in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985).  Although the State confessed error, the Second DCA rejected that confession and affirmed.

          The appeals court stated that “the parties have failed to identify, and we have been unable to locate, any authority for the proposition that Rowe findings are required to support a criminal restitution award.”  The court pointed out that, under the restitution statute (F.S. 775.089(1)(a)), “attorney’s fees are properly awardable in restitution so long as they are causally connected to the crime.”  The court also observed that, “to hold otherwise would undermine the express purpose behind restitution.  ‘Unlike civil damages, restitution is a criminal sanction.  The purpose of restitution is not only to compensate the victim, but also to serve the rehabilitative, deterrent, and retributive goals of the criminal justice system.’  Spivey v. State, 531 So.2d 965, 967 (Fla. 1988).  These goals are best served by imposing restitution in an amount proportional to the harm caused by the defendant’s criminal conduct, as set forth in the restitution statute.”  Livingston v. State, __ So.3d __ (Fla. 2d DCA, No. 2D20-65, 2/3/2021), 2021 WL 359447.

Fourth DCA holds that email service requirements of Fla.R.Jud.Admin. 2.516 do not apply to service of a F.S. 57.105 safe harbor notice.  [Added 3/11/21]

          Defendant appealed an order striking its motion for F.S. 57.105 sanctions.  The order was based on a finding that the motion did not strictly comply with the email service requirements of Fla.R.Jud.Admin. 2.516.  Defendant contended that the rule’s requirements do not apply to a motion for sanctions under section 57.105.

          Plaintiffs filed a confession of error, based on the Supreme Court’s decision in Wheaton v. Wheaton, 261 So.3d 1236 (Fla. 2019), and the Fourth DCA reversed.  Wheaton held that the email service requirements of rule 2.516 do not apply to a proposal for settlement.  Applying Wheaton’s reasoning, in Law Offices of Fred C. Cohen, P.A. v. H.E.C. Cleaning, LLC, 290 So.3d 76 (Fla. 4th DCA 2020), the Fourth DCA receded from a prior decision and held that the rule 2.516 email service requirements do not apply to service of a section 57.105 safe harbor notice.

          Accordingly, based on Wheaton and Law Offices of Fred C. Cohen, P.A., the court accepted the confession of error and reversed.  SafePoint Ins. Co. v. Ginsburg, __ So.3d __ (Fla. 4th DCA, No. 4D18-2158, 1/20/2021), 2021 WL 191441.

Court properly refused to award prevailing party fees in FDUTPA action because movant failed to obtain judgment.  [Added 2/26/21]

          Plaintiff sued Defendant for violations of the Fla. Deceptive and Unfair Trade Practices Act (“FDUTPA”).  The parties reached an agreement in favor of Plaintiff and, pursuant to the agreement, Plaintiff dismissed the suit.  Plaintiff subsequently sought fees under FDUTPA as the prevailing party.  The trial court denied the motion, ruling that the statute “strictly requires the entry of a judgment by the trial court.”  Plaintiff appealed.

          The Second DCA affirmed.  “Under the statute’s plain and obvious meaning, it is only after entry of a judgment in the trial court that the prevailing party may be entitled to attorney’s fees.  [Plaintiff] did not obtain a judgment.  Pursuant to the parties’ agreement, he voluntarily dismissed his lawsuit.  Therefore, [Plaintiff] is not entitled to attorney's fees under FDUTPA.”  (Footnotes omitted.)

          Plaintiff contended that a judgment was not required under Mady v. DaimlerChrysler Corp., 59 So.3d 1129 (Fla. 2011).  The appeals court disagreed.  “FDUTPA’s attorney fees provision is distinguishable from the [federal] MMWA fee shifting provision [at issue in Mady], in that the former requires entry of a ‘judgment in the trial court,’ § 501.2105(1), while the latter merely requires that the consumer ‘finally prevail[ ],’ 15 U.S.C. § 2310(d)(2).  [Plaintiff’s] reliance on Mady is misplaced.”  Money v. Home Performance Alliance, Inc., __ So.3d __ (Fla. 2d DCA, No. 2D19-1642, 1/6/2021), 2021 WL 45658.

Acknowledging Supreme Court’s “flexible approach” to determining who was prevailing party, Fourth DCA addresses dicta in its prior cases stating that breach of contract cases “can never be ties.”  [Added 2/15/21]

          Air carrier Skylink hired Klukan as a pilot.  Klukan executed 2 agreements in connection with his employment, a Personal Loan Agreement and a Pilot Training Expense Agreement.  Klukan resigned about 18 months later.  Skylink sued him for breach of the contracts in a 5-count complaint.  In a bench trial, the court ruled that Skylink could not recover on the Personal Loan Agreement because the subsequent Pilot Expense Training Agreement voided all prior agreements between the parties.  Skylink prevailed on one of the 5 counts, awarding Skylink about $6600 rather than the almost $20,500 that it sought.

          Skylink moved for prevailing party fees.  The court denied the motion, concluding that “Skylink did not prevail on the significant issues in the litigation and thus was not the prevailing party for purposes of an award of attorney’s fees.”  Skylink appealed.

          The Fourth DCA affirmed.  The court reviewed the “significant issues” and “any significant issue” tests discussed in Florida Supreme Court cases, and noted that Fourth DCA cases have stated that “one party must prevail” in a breach of contract action.  The court, however, characterized as “dicta” the language in its prior cases suggesting that “breach of contract cases can never be ties.”

          Regarding this case, the court summarized:  “We conclude that the significant issues tried before the court were (1) the validity of the Personal Loan Agreement, (2) Klukan’s potential liability on an unjust enrichment theory, and (3) the amount of Skylink’s damages.  Klukan prevailed on the first two of these issues and largely prevailed on the issue of damages.  That Skylink recovered an affirmative judgment does not control the prevailing party determination.”  The court concluded that Skylink “did not prevail on any significant issue in the litigation” (emphasis added) and held:  “[W]e hold that the trial court did not abuse its discretion in finding that Skylink was not the prevailing party under the circumstances of this case.”  Skylink Jets, Inc. v. Klukan, __ So.3d __ (Fla. 4th DCA, No. 4D20-615, 12/16/2020), 2020 WL 7383110.

Court erred in awarding under F.S. 704.01 in dispute over easement.  [Added 2/1/21]

          Plaintiffs, owners of a parcel of real property, claimed an easement over Defendant’s land.  Because Plaintiffs had another means of ingress and egress, Defendant objected to the easement.  Plaintiffs filed suit.  Count one of the suit addressed Defendant’s property.  Defendant moved to strike count one as a sham pleading.  The trial court found that Plaintiffs’ property was not hemmed in and struck count one, but ruled that the complaint “was not inherently false and thus, not a sham pleading.”

          Defendant moved for fees under F.S. 704.01.  The court ordered Plaintiffs to pay almost $27,000 in fees and costs to Defendant, finding that Plaintiffs had “unreasonably prosecuted [their] 704.01(2) claim.”  Plaintiffs appealed, contending that section 704.01 did not authorize a fee award.

          The Fifth DCA agreed and reversed.  “The entitlement to fees and costs under section 704.04 requires a finding that one party unreasonably refused to comply with 704.01(2), which merely establishes a statutory right of way to legally hemmed in property.  Disagreements as to whether the easement properly exists, e.g., whether the dominant parcel is truly hemmed in, are to be judicially determined.  This is precisely the avenue [Plaintiffs] pursued.  Just because the facts of this case ultimately did not support their claimed easement does not mean that they unreasonably refused to comply with section 704.01(2).  The court’s finding that [Plaintiffs] should be ordered to pay [Defendant’s] attorney’s fees and costs because the filing of this lawsuit was unreasonable is not the finding required in this case to establish [Defendant’s] entitlement to fees.  The order awarding fees and costs in essence treats section 704.04 as a prevailing party statute, which is not how the statute was drafted by the legislature.”  Wilcox v. Cupstid, __ So.3d __ (Fla. 5th DCA, No. 5D20-359, 12/18/2020), 2020 WL 7411202.

Court properly denied fees to party who prevailed based on lack of jurisdiction.  [Added 1/25/21]

          Lender sued Borrower to foreclose a mortgage.  Lender was unsuccessful in serving Borrower, and the court dismissed the action.  Borrower moved for prevailing party fees pursuant to the note, mortgage, and F.S. 57.105(7).  The trial court denied the motion.  Borrower appealed.

          The Fifth DCA affirmed.  Borrower was not the “prevailing party” under Florida law.  “A dismissal for lack of personal jurisdiction does not confer ‘prevailing party’ status on the party over whom the trial court lacks jurisdiction because the trial court does not rule on any issue central to the merits of the dispute, and the legal relationship between the parties following such a disposition has not been materially changed.”  The trial court decided only that service of process was not sufficient, and did not adjudicate the merits of the claim.  Lender is free to refile the action.  Torruella v. Nationstar Mortgage, LLC, __ So.3d __ (Fla. 5th DCA, No. 5D19-3298, 12/4/2020), 2020 WL 7082768.

Fourth DCA affirms denial of law firm’s charging lien because firm’s services did not produce positive result for client.  [Added 1/20/21]

          Law Firm filed a motion asserting a charging lien against Former Client for fees.  The trial court denied the motion.  Law Firm appealed.  The Fourth DCA affirmed.

          To prevail on a charging lien, a law firm must not only show that it provided services for the client but that its services resulted in a positive judgment or settlement for the client.  Here, Law Firm represented Former Client for 5 months on limited jurisdictional issues and “did not obtain any settlements or financial relief for the client.”

          Further, on cross-appeal the court reversed denial of Former Client’s motion for prevailing party fees.  “The parties’ representation agreement allowed the law firm to recover attorney’s fees incurred in litigating to collect unpaid sums under the agreement.  Under the reciprocity provision in [F.S. 57.105(7)], the client had a right to recover her attorney’s fees for prevailing in defending against the charging lien.”  Ciklin Lubitz v. Schenden, __ So.3d __ (Fla. 4th DCA, No. 4D19-2420, 12/2/2020), 2020 WL 7050715.

Supreme Court rules that  unilateral attorney’s fee provision in credit card contract is made reciprocal when debtor prevails in account stated action to collect unpaid debt.  [Added 1/18/21]

          Resolving a conflict between DCAs, the Florida Supreme Court decided that a unilateral attorney’s fee provision in a credit card contract is made reciprocal when the debtor prevails in an account stated action to collect unpaid debt.  The Court approved Bushnell v. Portfolio Recovery Associates, LLC, 255 So.3d 473 (Fla. 2d DCA 2018) and quashed Ham v. Portfolio Recovery Associates, LLC, 260 So.3d 450 (Fla. 1st DCA 2018).

          Separate Debtors owed money on their credit card accounts.  Creditor sued each in separate actions based on a cause of action for account stated.  Debtors answered by denying the allegations and raising affirmative defenses.  They requested fees based on the underlying credit card contracts, which allowed the card issuer to recover fees if required to hire a lawyer to collect the account.  Debtors argued that the fee provision was reciprocal under F.S. 57.105(7).  Creditor argued that the reciprocal provision of F.S. 57.105 did not apply because the suits were brought on an account stated cause of action and not for breach of the credit card contract.

          The trial court granted the Debtors’ fee motions and Creditor appealed.  The First DCA consolidated the appeals and reversed, ruling that the actions filed by Creditor were not based on the credit card contracts containing the unilateral fee provision and so Debtors were not entitled to fees under F.S. 57.105(7).  The Supreme Court granted reviewed based on conflict with the Second DCA.

          The Supreme Court quashed the First DCA’s decision, stating:  “[W]e we conclude that section 57.105(7) allows the debtors to recover reciprocal attorney’s fees.  Under section 57.105(7)’s rule of reciprocity, if a contract provides for attorney’s fees for a party when that party ‘is required to take any action to enforce the contract,’ then attorney’s fees are authorized for the other party if ‘that party prevails in any action . . . with respect to the contract.’  Here, the fees were authorized for the debtors because both conditions required by the statute were met.”

          The Court noted that, “[t]here is no tenable argument that a provision authorizing fees for action to collect a debtor’s account does not encompass account stated claims.”  Further, the term “with respect to” in the statute “requires a relationship with the contract containing a unilateral fee provision that may be different than and not as immediate as the relationship that would be required if ‘based on,’ ‘under,’ or ‘pursuant to’ were the operative language.  [W]ith respect to” is inclusive of those other terms, but it sweeps more broadly.’”  Ham v. Portfolio Recovery Associates, LLC, __ So.3d __ (Fla., No. SC18-2142, 12/31/2020). 2020 WL 7778178.​

Proposal for settlement served after death of original defendant and before proper substitution of estate was legal nullity and could not support fee award.  [Added 10/6/20]

          Plaintiff sued defendant Todd in Broward County for motor vehicle negligence.  Todd died.  Defense counsel timely filed a suggestion of death.  When no information on an estate was provided by the defense, the court ordered Plaintiff to set up an estate and substitute it as the party defendant.  At the same time, an estate for Todd was opened in Dade County.  In the underlying case, Plaintiff filed an amended complaint naming “John Doe” as the personal representative of Todd’s estate and substituting “Doe” as the party defendant.

          Some months later a Curator was appointed in the estate case.  Plaintiff, however, failed to substitute Curator in the accident case.  Plaintiff tendered a proposal for settlement identifying the Estate of Todd as the defendant, and emailed the proposal to Curator and counsel for the defendant’s insurer.  No response was received.

          Subsequently the court granted the defense’s motion to dismiss the complaint, arguing that the complaint named John Doe rather than Curator and pointing out that there was no court order substituting the estate in as party defendant.  The court granted the motion to dismiss without prejudice and ordered Plaintiff to properly substitute the estate into the case.  Plaintiff did that by filing a second amended complaint.

          At trial Plaintiff obtained a verdict more than 25% greater that his proposal for settlement.  Plaintiff moved for fees under F.S. 768.79.  The trial court granted the fee motion.  Defendant appealed.

          The Fourth DCA reversed.  Under Fla.R.Civ.P. 1.260, when a party dies the action abates until proper substitution of the party’s estate.  Plaintiff erred by continuing the litigation based on the complaint he filed against “John Doe.”  That complaint violated Rule 1.260 “and the subsequent proceedings prior to the filing of the second amended complaint were a nullity.”

          Additionally, the proposal for settlement did not comply with the timing requirements of Fla.R.Civ.P. 1.442 and so was invalid.  Plaintiff had served his proposal 16 months before Curator was properly served with the second amended complaint.  de la Riva v. Chavez, __ So.3d __ (Fla. 4th DCA, No. 4D19-1371, 9/9/2020), 2020 WL 5372283.

Court erred in not awarding fees under F.S. 772.11 to defendants who prevailed against civil theft claim on directed verdict.  [Added 9/28/20]

          MYR sued Island Travel and 3 individual defendants alleging breach of contract, unjust enrichment, fraud in the inducement, negligent misrepresentation, and civil theft.  The trial court entered a directed verdict was entered for the individual defendants on MYR’s civil theft claim, finding no evidence of the required criminal intent.  Although the jury entered a verdict against Island Travel on the civil theft claim, the court granted Island’s motion for judgment notwithstanding the verdict because there was no evidence of criminal intent on the part of Island’s agents.

          Judgment was entered for MYR on its breach of contract, negligent misrepresentation, and fraudulent inducement claims.  Only the breach of contract claim was upheld on appeal.  Judgment against MYR on the civil theft claim was upheld on appeal.

          The defendants below moved for fees against MYR under the civil theft statute, F.S. 772.11, which authorizes a prevailing defendant to recover fees “upon a finding that the claimant raised a claim that was without substantial fact or legal support.”  The trial court denied the motion.  Defendants appealed.

          The Third DCA reversed, concluding that MYR’s civil theft claims were without substantial fact or legal support.  “Here, the trial court directed a verdict in favor of the [Defendants], finding that there was no evidence of criminal intent, a necessary element of the civil theft claim.”  Island Travel & Tours Ltd. Co. v. MYR Independent, Inc., __ So.3d __ (Fla. 3d DCA, No. 3D16-2085, 9/2/2020), 2020 WL 1451990.

Court did not abuse  discretion in declining to award “fees on fees” for time spent pursuing Moakley sanctions award.  [Added 9/12/20]

          A lawyer and his law firm (“Diaz”) were sued by Kasinsky for allegedly failing to render legal representation after being paid a retainer.  Attempting to defeat a motion for summary judgment, Kasinsky submitted an affidavit, drafted by Benitez, from a family member that was later determined to contain false allegations.  Diaz moved for sanctions against Kasinsky and Benitez pursuant to F.S. 57.105 and Moakley v. Smallwood, 826 So.2d 221 (Fla. 2002).  Finding that both Kasinsky and Benitez acted in bad faith, the trial court awarded fees against them.

          Diaz then moved for additional fees for the time spent pursuing the Moakley award.  The trial court denied the motion, “concluding that to award ‘fees on fees’ against Benitez, it would have to find that Benitez also acted in bad faith in defending the Moakley motion itself at the two evidentiary hearings, which it did not find.  The court also determined that under its reading of Moakley, it lacked discretion to impose ‘fees on fees’ solely based on the misconduct underlying the Moakley award itself.  The court denied the motion for the same reason as to Kasinsky.”  Diaz appealed.

          The Third DCA affirmed, finding no abuse of discretion.  The appeals court indicated that the trial court had no discretion to award “fees on fees” without a finding that the defense of the underlying Moakley motion had also been conducted in bad faith.  The trial court made no such finding.

          Under Moakley, “the amount of the award of attorneys’ fees must be directly related to the attorneys’ fees and costs that the opposing party has incurred as a result of the specific bad faith conduct.”  Moakley, 826 So.2d at 227 (emphasis by Third DCA).  Accordingly, the court held:  “Moakley does not provide an automatic entitlement to additional attorneys’ fees incurred in securing an underlying sanctions award.”  Diaz v. Kasinsky, __ So.3d __ (Fla. 3d DCA, No. 3D19-1188, 8/12/2020), 2020 WL 4640073.

Court abused discretion in awarding fees for time spent litigating amount of fees in F.S. 57.015 motion.  [Added 9/9/20]

          After affirming a trial court’s determination that a law firm was entitled to a fee award as a sanction under F.S. 57.105, the Third DCA withdrew its original opinion and issued a new one to clarify its ruling.  The appellate court again affirmed the law firm’s entitlement to fees, but reversed “the portion of the award that represents fees incurred for litigating the amount of fees,” citing Eisman v. Ross, 664 So.2d 1128 (Fla. 3d DCA 1995).  Silver Law Group, P.A. v. Bates, __ So.3d __ (Fla. 3d DCA, No. 3D19-933, 8/5/2020) (on motion for clarification), 2020 WL 4495452.

Court erred in awarding prevailing party fees under reciprocal provision of F.S. 57.105(7), where underlying contract was entered into before effective date of statute.  [Added 9/2/20]

          An institutional buyer (“McCormick”) bought a condo unit through a foreclosure sale.  Under the relevant documents that were executed in 1984, unit owners pay rent to the Community Center (“C.V.P.”)  When McCormick later sought to sell the unit, C.V.P. claimed that McCormick owed the rental fees that were unpaid by the prior unit owner.  McCormick prevailed due to a provision in the documents that exempted institutional owners who acquired title through foreclosure from owing back rent.  McCormick was awarded prevailing party fees under the reciprocal provisions of F.S. 57.105(7).  C.V.P. appealed.

          The Fourth DCA reversed.  F.S. 57.105(7) specifically provides that it applies to contracts entered into on or after October 1, 1988, but the relevant condo documents were executed in 1984.  Contrary to McCormick’s contention, there was not a novation to the original documents.  Accordingly, the trial court erred in awarding prevailing party fees to McCormick.  C.V.P. Community Center, Inc. v. McCormick, 105, LLC, __ So.3d __ (Fla. 4th DCA, No. 4D19-1515, 8/5/2020), 2020 WL 4496014.

Under Florida law incapacitated adult has right to seek dependent support from parent, and so trial court erred in dismissing adult’s support petition and imposing fees against filer under F.S. 57.105.  [Added 8/31/20]

          The parents of a child (“Korey”) with Down Syndrome divorced and entered a marital settlement agreement under which Father’s support obligation would end when Korey turned 18.  After Korey became an adult she filed a petition seeking support from Father.  Father moved to dismiss, claiming that the court did not have subject matter jurisdiction due to the lack of a provision for adult support in the MSA.  The trial court agreed and dismissed Korey’s petition, and also imposed fees against her under F.S. 57.105 for filing a frivolous petition.  Korey appealed.

          The Third DCA reversed, holding that the lower court did have subject matter jurisdiction and so erred in dismissing Korey’s petition.  “[F.S.] 743.07(2) preserves the common law right to seek adult dependent support from a parent in a court of competent jurisdiction when such dependency is the result of a mental or physical incapacity which began prior to such person reaching majority.”  Consequently, “even if [Father] fulfilled his child support obligation pursuant to the divorce decree, Korey had the right to bring an independent action for dependent adult support in the circuit court to adjudicate [Father]’s continuing support obligation.”  The section 57.105 fee award was thus erroneous as well.  Fernandez v. Fernandez, __ So.3d __ (Fla. 3d DCA, No. 3D20-104, 8/5/2020), 2020 WL 4493410.

Motion for prevailing party fees following voluntary dismissal was timely filed even though not filed within 30 days of when notice of dismissal was filed.  [Added 8/14/20]

          Bidder sued College in connection with a bid protest.  A temporary injunction was entered against College, secured by a $100,000 bond that Bidder deposited into the court registry.  On September 28, 2016, Bidder filed a notice of voluntary dismissal without prejudice under Fla.R.Civ.P. 1.420(a).  College moved to dissolve the injunction and distribute the bond.  Bidder opposed the motion and sought return of the bond funds.  On November 29, 2016, the trial court found in Bidder’s favor, “concluding that it has been the prevailing party, that the college was not harmed by the injuction, and acknowledging the notice of dismissal as effective.”

          On December 20, 2016, Bidder moved for prevailing party fees under its contract with College.  The court ruled that the motion for fees was untimely because it was not filed within 30 days of when Bidder’s voluntary dismissal was filed as required by Fla.R.Civ.P. 1.525.  Bidder appealed.

          The Third DCA reversed.  Although a notice of voluntary dismissal ordinarily triggers the 30-day time period under rule 1.525, this rule has exceptions where, for example, the filing of the notice does not of itself conclude the action.  Rule 1.420(a) provided such an exception regarding a voluntary dismissal involving property remaining in the custody of the court – such as the bond posted by Bidder.  The appeals court summarized:  “Here, because the bidder’s notice was not sufficient by itself under rule 1.420(a), it could not have ‘concluded’ the action for purposes of rule 1.525, until the college had an opportunity to prove damages recoverable from the bond and the lower court entered an order acknowledging the bidder’s notice.  Because the college obtained a ruling on November 29, 2016, that order rendered the bidder’s prior notice effective and triggered rule 1.525’s thirty-day deadline.  Since the bidder’s motion for fees was filed within thirty days from that order, on December 20, 2016, the motion was timely.  Thus, the trial court erred in finding otherwise.”  Nader + Museu I, LLLP v. Miami Dade College, __ So.3d __ (Fla. 3d DCA, No. 3D19-1427, 7/22/2020), 2020 WL 4197399.

Due to operation of F.S. 57.105(7), court erred in denying prevailing party fees to former wife who successfully defended motion to compel.  [Added 8/3/20]

          Spouses divorced and entered into a Property Settlement and Support Agreement (PSA).  Former Husband filed a motion to compel against Former Wife.  She successfully defended against all claims in the motion.  The trial court, however, declined to award prevailing party fees to Former Wife based on the magistrate’s recommendation finding that “Paragraph 13 of the parties’ PSA only contemplated entitlement to attorney’s fees and costs against ‘the party found to be in violation of this Agreement.’”  The full text of Paragraph 13 provided:  “In the event that either party should take legal action against the other by reason of the other’s failure to abide by this Agreement, the party who is found to be in violation of this Agreement shall pay to the other party who prevails in said action, the prevailing party’s reasonable expenses incurred in the enforcement of this Agreement, said expenses to include, but not be limited to, reasonable attorney’s fees, court costs, filing fees, court reporter appearance fees, copying costs, travel costs and transcription fees.”

          Former Wife appealed.  The Third DCA reversed, pointing out that F.S. 57.105(7) “amends by statute all contracts with prevailing party fee provisions to make them reciprocal.  Thus, it also applies to those parties, like the former wife in this case, who successfully defend against a breach of contract action.  . . .  Thus, we would not be rewriting the parties’ contract if the former wife is awarded prevailing party attorneys’ fees because section 57.105(7) amends the prevailing party attorneys’ fee provision by operation of law.  The award is mandatory, once the lower court determines a party has prevailed.”  Levy v. Levy, __ So.3d __ (Fla. 3d DCA, Nos. 3D19-73, 3D19-318, 7/15/2020), 2020 WL 3980684.

Court erred in ordering FIGA to pay insured's fees in connection with sinkhole loss.  [Added 7/27/20]

          Insured filed a claim with her insurer alleging sinkhole damage to her home.  The insurer denied the claim.  The insurer became insolvent and the Florida Insurance Guaranty Association (FIGA) assumed responsibility for the claim.  FIGA informed Insured that there was no evidence of sinkhole activity on her property but that it was not denying her claim.  Insured sued FIGA.

          FIGA invoked the neutral evaluation process and peer review of the prior testing, then subsequently informed Insured that her claim was not a covered claim.  After Insured retained an engineering firm for further testing, FIGA conceded that there was sinkhole activity and that the claim was covered.

          Insured moved for fees under F.S. 631.70 and 627.428.  FIGA argued that a fee award was precluded by F.S. 631.54(3)(c), regarding sinkhole claims.  The court denied Insured’s fee motion.  Insured appealed.

          The Second DCA affirmed.  The definition of “covered claim” in F.S. 631.(3) was amended in 2011 to exclude FIGA “from paying ‘[a]ny amount payable for a sinkhole loss other than testing deemed appropriate by the association or payable for the actual repair of the loss’ and further specifically prevents FIGA from paying ‘attorney’s fees . . . in connection with a sinkhole loss.’”  The appeals court rejected Insured’s argument that section 631.70 mandated a fee award against FIGA.  A specific statute controls over a more general one on the same subject.  “[T]he specific statute that relates to attorney’s fees in sinkhole cases is section 631.54(3)(c).  Section 631.70 must now give way to the more specific language in section 631.54(3)(c) when attorney’s fees are sought in connection with a sinkhole loss.  By virtue of the 2011 addition of section 631.54(3)(c), the Legislature has put the public on notice that when it comes to attorney’s fees, sinkhole claims involving FIGA now fall under the American Rule, which provides that all parties must bear their own fees no matter the outcome of the litigation.”

          The court certified this question to the Florida Supreme Court as one of great public importance:  “Does the language in section 631.54(3)(c) regarding attorney’s fees in connection with a sinkhole loss operate to prevent a sinkhole claimant from receiving fees from FIGA under section 631.70?”  Heid v. Fla. Ins. Guaranty Ass’n, __ So.3d __ (Fla. 2d DCA, No. 2D18-737, 3/6/2020), 2020 WL 1070948.

          NOTE:  See also Fla. Ins. Guaranty Ass’n v. Carman, __ So.3d __ (Fla. 2d DCA, No. 2D19-141, 6/12/2020), 2020 WL 3115428.

Lawyer who withdrew from contingent fee case may enforce charging lien for quantum meruit fees because withdrawal was required by ethics rules.  [Added 7/23/20]

          For several years, Lawyer represented the personal representative of an estate in pursuing a wrongful death case under a contingent fee contract.  Lawyer withdrew citing “ethical and professional considerations” and filed a charging lien.  After successor counsel concluded a settlement, Lawyer moved to enforce his charging lien.  The trial court granted fees to Lawyer based on quantum meruit.

          The personal representative appealed.  Relying on Faro v. Romani, 641 So.2d 69 (Fla. 1994), the personal representative argued that Lawyer had forfeited his right to a fee because he withdrew from the case.

          The Third DCA affirmed the fee award.  There is a “narrow exception” to the Faro rule that allows a withdrawing lawyer to obtain a fee “in those rare cases where ‘the client’s conduct makes the attorney’s continued performance of the contract either legally impossible or would cause the attorney to violate an ethical rule of the Rules Regulating The Florida Bar.’”  (Citation omitted.)  Here, the client had “embarked on a course of untoward conduct designed to undermine the integrity of the prosecution of the case and subvert the judicial process.”  (In a footnote, the court pointed to allegations against the personal representative implicating Rule 4–4.1(a) (false statement of material fact or law to third person, Rule 4–8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), and Rule 4–8.4(d) (conduct that is prejudicial to the administration of justice).  Accordingly, the court concluded that “[u]nder these circumstances, ‘withdrawal was not only mandated by ethical rules, but was also based on circumstances outside the attorney’s control.’”  (Citation omitted.)  Hernandez v. Philip Morris USA, Inc., __ So.3d __ (Fla. 3d DCA, No. 3D19-1664, 7/8/2020), 2020 WL 3816382.

In case of first impression, First DCA rules that junior lien holder named in construction lien enforcement and foreclosure action may not recover fees under F.S. 713.29.  [Added 7/9/20]

          In 2006 Contractor filed an action for enforcement and foreclosure of its construction lien against Homeowners.  Contractor did not file a notice of lis pendens until 2013, years after Homeowners had mortgaged the property to Bank.  Bank was granted summary judgment due to the untimely recording of the lis pendens.  Bank then moved for prevailing party fees from Contractor under F.S. 713.29.  The trial court awarded fees to Bank, “finding that it was a ‘prevailing party’” under the statute.  Contractor appealed.

          The First DCA reversed, noting that the case “presents an issue of first impression in Florida – whether a junior interest holder named in a construction lien enforcement and foreclosure action may recover attorney’s fees under section 713.29.”  (Footnote omitted.)  The court answered in the negative.

          The court pointed out that fees under F.S. 713.29 “have historically been awarded to the prevailing party in the underlying lien enforcement claim.”  In the underlying enforcement action, Contractor did not seek to enforce its lien against Bank, joining Bank as a junior lienholder only due to its recorded mortgage on the property.  Further, the court rejected Bank’s argument that the statute permitted fee awards against multiple prevailing parties.  “The plain and unambiguous language of section 713.29 references ‘the prevailing party’ as entitled to recover a reasonable fee for the services provided.  The language of the statute does not contemplate ‘prevailing parties’ or ‘a prevailing party.’  The statute, through its basic terms, limits an award of attorney’s fees to ‘the’ party that prevails in the action to enforce the lien, if at the conclusion of the substantive litigation, there is a ‘prevailing party.’”  (Emphasis by court.)  Decks N Such Marine, Inc. v. Daake, __ So.3d __ (Fla. 1st DCA, No. 1D18-1396, 5/15/2020), 2020 WL 2507500.

Order awarding fees reversed because court considered 3 consolidated cases together rather than individually when determining prevailing party.  [Added 7/8/20]

          Three cases involving 2 contracts relating to construction of a seawall were consolidated.  At the attorney’s fee hearing at conclusion of the litigation, the trial court ruled that Appellee was the prevailing party on all significant issues and denied Appellant’s motion for fees.  Appellant appealed, contending that “the trial court erred by considering all three cases together when it determined that the appellee was the prevailing party.”

          The First DCA agreed, and reversed and remanded for further proceedings.  “The consolidation of cases does not change the nature of each individual case or the rights of each party.  . . .  Under section 713.29, the trial court was required to determine who was the prevailing party on the significant issues contained in each of the separate cases.”  (Citations omitted.)  Daake v. Decks N Such Marine, Inc., __ So.3d __ (Fla. 1st DCA, No. 1D18-2659, 5/15/2020), 2020 WL 2507499.

Notwithstanding parties’ agreement, although it had discretion to award fees under F.S. 61.16 in domestic litigation involving best interests of child, court did not err in denying fees to former wife where evidence established lack of need by wife and lack of ability to pay by husband.  [Added 6/22/20]

          Husband and Wife had a marital settlement agreement (“Agreement”) providing that each party would pay his or her own attorney’s fees in “any action for dissolution of marriage or similar action and in any future proceedings brought in any court.”  Husband later petitioned to modify the dissolution judgment with respect to parental responsibility.  Wife responded.  Ultimately Husband voluntarily withdrew the petition.  Wife moved for fees under F.S. 61.16.  The trial court denied the motion on 2 grounds:  (1) under the Agreement Wife had waived her claims to fees; and (2) the evidence showed Wife lacked the need but had the ability to pay her fees, and Husband lacked the present ability to pay Wife’s fees.  Wife appealed.

          The Third DCA affirmed.  The court agreed with Wife’s contention that “a party cannot contract away her prospective ability to ‘obtain an advocate’ where the proceedings pertain to a child’s best interests (for example, parental responsibility, timesharing, child support).”  The fee waiver provision in the Agreement therefore “did not preclude the former wife from seeking (or the trial court, in its discretion, from awarding) attorney’s fees and costs pursuant to section 61.16 where the issues being litigated required the trial court to determine the best interests of the child.”

          Nevertheless, Wife was not entitled to a fee award because of the trial court’s findings regarding need and ability to pay.  Helinski v. Helinski, __ So.3d __ (Fla. 3d DCA, No. 3D19-1273, 5/13/2020), 2020 WL 2463069.

Order imposing charging lien reversed because lawyer “had no hand in securing” assets against which lien was imposed.  [Added 6/19/20]

          Wife hired Lawyer to represent her in a dissolution of marriage.  Lawyer filed the petition in 2015.  Lawyer successfully moved for temporary alimony and related relief for Wife in 2016.  Not long after that, Lawyer withdrew from the case and filed a notice of charging lien.

          When the final judgment was entered in 2018, Lawyer filed a motion to impose and adjudicate his charging lien.  The motion stated that Wife “received the fruits of [Lawyer’s] services” but did not identify the “fruits.”  At the evidentiary hearing Lawyer argued that the “fruits” of his services stemmed from the temporary relief order.  The court granted Lawyer’s motion.  Despite finding that the financial relief secured by Lawyer for Wife was the temporary relief, the court ordered that no funds be distributed by the former husband to Wife until Lawyer’s lien was fully satisfied.

          Wife appealed, contending inter alia that it was erroneous to attach the charging lien to assets awarded to Wife as part of the equitable distribution because Lawyer “had no hand in procuring those assets for her.”  The Second DCA agreed and reversed.

          A charging lien attached only to the “‘fruits’ flowing from the attorney’s efforts.”  It was clear from the testimony that the only relief secured for Wife by Lawyer was the temporary relief awarded years before the entry of the final judgment.  “[T]there was no basis for the trial court to impose the charging lien against assets distributed to [Wife] in the equitable distribution since [Lawyer’s] efforts – by his own admission – had no impact on [Wife’s] procurement of those assets.  After all, ‘[a] charging lien cannot be imposed merely because the attorney provided legal services.’”  (Citation omitted.)  Duhamel v. Fluke, __ So.3d __ (Fla. 2d DCA, No. 2D19-358, 5/1/2020), 2020 WL 2090166.

Court erred in awarding fees under F.S. 61.16 to former wife who pursued garnishment to collect unpaid equalizing payment from equitable distribution.  [Added 6/11/20]

          In a 2008 divorce case, the former husband (“Husband”) was ordered to pay the former wife (“Wife”) an equalizing payment as part of the equitable distribution plan.  A year later the court awarded Wife a money judgment.  Husband did not pay.  Wife pursued writs of garnishment and proceeding supplementary unsuccessfully.  Needing funds to continue her collection efforts, Wife then sought an award of attorney’s fees from the trial court under F.S. 61.16.  The court granted the request.  Husband appealed.

          The First DCA reversed. Wife had a money judgment and so was entitled to the remedies available to any judgment creditor.  “Chapter 61 provides for a writ of garnishment under the chapter only for the enforcement of alimony or child support.  § 61.12, Fla. Stat.  The original equalizing payment owed to the former wife was not for alimony or child support.  Therefore, her pursuit of a writ of garnishment was not a proceeding under Chapter 61.  Likewise, Chapter 61 does not provide for proceedings supplementary to obtain a writ of execution.  Therefore, her efforts toward obtaining a writ of execution were not proceedings under Chapter 61.”  Kotlarz v. Kotlarz, __ So.3d __ (Fla. 1st DCA, No. 1D18-4818, 4/27/2020), 2020 WL 1982882.

Party to paternity action may not waive temporary fees prior to final judgment, per Second DCA.  [Added 5/29/20]

          The parties to a paternity action had lived together and had 2 minor children but never married.  Mother first filed a dissolution action against Father alleging a common law marriage from another state.  Father moved to dismiss the dissolution case and filed a paternity action.  The parties entered into a Partial Settlement Agreement that the courts in both actions ratified.  In paragraph “E” of the Agreement Mother appeared to waive attorney’s fees “except for timesharing, parenting plan and child support matters . . .”  Father filed a motion regarding shared parental responsibility and time-sharing matters.  Mother then moved for temporary fees under F.S. 742.045 (paternity actions).

          The trial court found paragraph E to be ambiguous and awarded temporary fees to Mother.  Father appealed.

          The Second DCA affirmed under the “tipsy coachman” coachman.  The appeals court determined that paragraph E was not ambiguous, but held that “a party to a paternity action may not waive temporary attorney’s fees prior to final judgment.”

          The court noted that the Florida Supreme Court has ruled that a spouse’s claim for temporary fees under F.S. 61.16 cannot be contracted away or waived before entry of final judgment in a divorce case.  Belcher v. Belcher, 271 So.2d 7 (Fla. 1972).  See also Khan v. Khan, 79 So.3d 99 (Fla. 4th DCA 2012).  The court stated:  “In light of this court's prior holdings interpreting section 742.045 in accordance with section 61.16, and also because Florida’s laws pertaining to child support and temporary support are based upon the guiding ‘policy of advancing the best interests of the child,’ we see no reason why the holdings in Belcher and Khan should not apply to the facts of this case to prohibit a waiver of temporary attorney's fees prior to final judgment in a paternity action.”  (Footnotes and citation omitted.)  Nishman v. Stein, __ So.3d __ (Fla. 2d DCA, No. 2D19-697, 4/17/2020), 2020 WL 1897262.

Expert testimony not needed to support award of fees as compensatory damages in suit by law firm against client for breach of contract.  [Added 5/12/20]

          Law Firm sued Client for fees in a breach of contract action.  The trial court found that the contract had been breached and entered judgment for Law Firm.  Client appealed, contending that the court erred in awarding the amount of damages because Law Firm did not present expert testimony as to the reasonableness of the fees claimed.

          The Fourth DCA affirmed.  “[E]xpert  testimony is not necessary to support an award of fees as compensatory damages, where previously incurred attorney’s fees are being sought in a separate contract action against a client.  [Citation omitted.]  As the judgment was for compensatory damages for breach of contract, no expert was needed.”  Ramblewood East Condo. Ass’n, Inc. v. Kaye Bender Rembaum, P.L., __ So.3d __ (Fla. 4th DCA, No. 4D19-166, 4/1/2020), 2020 WL 1546448.

Probate court has discretion to award fees from corpus of estate under F.S. 733.1061.  [Added 4/24/20]

          Decedent with one living sibling, no spouse, and no children.  His most recent will (2009) named his sister, Thomas, as personal representative.  This will left his estate to various charities (the Charities), which was a change from prior wills that had made Thomas, her son, and his issue primary beneficiaries.

          After the 2009 will was admitted to probate, Thomas (as personal representative and individually) and her relatives petitioned to revoke or reform the will because it supposedly did not effectuate Decedent’s testamentary intent.  Following discover, Thomas voluntarily dismissed the petition to revoke or reform the will.  The court dismissed the petition and awarded fees to Charities “pursuant to section 733.1061 to be paid from the corpus of the Estate.”  The court rejected the Charities contention that, under the statute, the fees must be assessed against Thomas and her family members individually.

          The Charities appealed, arguing that “subsection 733.1061(2) limits the sources of payment to a party's interest in the estate, other property of the party, or both.”  The Second DCA disagreed and affirmed.

          Subsection 733.1061(2) has “specific language permitting the probate court to impose personal liability for attorney’s fees by authorizing payment from a party’s ‘other property’ in addition to his or her share of the estate.  Subsection 733.1061(2) provides that in awarding attorney’s fees ‘the court in its discretion may direct payment from a party’s interest, if any, in the estate or enter a judgment which may be satisfied from other property of the party, or both.’  (Emphasis [by court].)  The plain language of this subsection clearly provides the probate court with the discretion to direct payment of attorney’s fees from the interests that are listed.  Although the legislature did not reiterate the probate court’s authority to award attorney’s fees from the corpus of the estate in section 733.1061(2), that authority is inherent in the court’s in rem jurisdiction as reflected by the language in section 733.1061(1), allowing it to award fees ‘as in chancery actions.’”  Heritage Foundation v. Estate of Schmid, __ So.3d __ (Fla. 2d DCA, Nos. 2D18-2301, 2D18-2477, 3/6/2020), 2020 WL 1070941.

Court erred in not awarding fees to former wife who prevailed in marital settlement agreement enforcement action.  [Added 4/23/20]

          Former Husband (“FH”) appealed an order on a motion for enforcement of a marital settlement agreement filed by Former Wife (“FW”).  FW cross-appealed a portion of the same order denying her request for fees based on a provision in the marital settlement agreement.

          The Second DCA affirmed as to FH’s appeal but reversed the order on FW’s cross-appeal.  The marital settlement agreement provided for a fee award to the party that prevailed against a non-complying party.  Trial courts do not have the discretion to decline to enforce such provisions.  “Such clauses ‘do not address either spouse's need for support.  They merely solidify the party's agreement by providing a disincentive to spouses who may frivolously challenge it.’  [Citation omitted.]  Notably, because marital settlement agreements are governed by contract principles, when such an agreement contains a provision requiring fees to be awarded to a prevailing party, trial courts must enforce those provisions.”

          Because FW prevailed in the enforcement action, the trial court erred by not awarding her fees pursuant to the marital settlement agreement.

          (FW also sought fees based on F.S. 61.16, but the appeals court found it unnecessary to address that issue.)  Christensen v. Christensen, __ So.3d __ (Fla. 2d DCA, No. 2D19-1292, 3/6/2020), 2020 WL 1070938.

F.S. 57.105 authorizes consideration of non-movant’s counsel’s hours in determining amount of fees to award movant, but does not authorize use of that information to award fees against non-movant as sanction.  [Added 4/21/20]

          Plaintiff obtained a fee award of $341,775 against Insurer under F.S. 57.105.  The court found that Plaintiff’s counsel had spent 683 hours on the matter.  The court’s order also expressly reserved jurisdiction to award an addition 600 hours’ worth of fees to Plaintiff; the 600 hours “corresponds to the additional attorney hours that [Insurer] expended on this Rambo type litigation.”  The court subsequently entered a second order awarding Plaintiff an additional $300,000 in fees as a sanction.

          Insurer appealed.  The question presented on appeal was “whether, under section 57.105, a court can award the movant not only for the movant’s reasonable attorneys’ fees, but also an additional punitive amount, such as an amount equivalent to the non-movant’s attorneys’ fees, as occurred here.

          Fourth DCA reversed, answering the question presented in the negative.  F.S. 57.105 directs the court to award a reasonable attorney’s fee to the movant; this fee is determined by applying the lodestar approach from Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985).  The trial court did that in its first fee order.  “However, the circuit court’s second fees order, though ostensibly applying a lodestar approach, multiplied the insurer’s attorney’s hours expended (600 hours) times the plaintiff’s attorney’s reasonable hourly rate ($500 per hour) to award the plaintiff an additional $300,000 as a sanction against the insurer under section 57.105.  Neither section 57.105’s plain language, nor any case interpreting section 57.105’s plain language, provides for any such additional sanction.”  (Emphasis in original.)  Safeco Ins. Co. v. Heikka, __ So.3d __ (Fla. 4th DCA, No. 4D18-2971, 3/4/2020), 2020 WL 1039179.

Administrative law judge erred in applying statutory fee cap to multiple petitioners that prevailed on separate rule change petitions that were consolidated.  [Added 4/17/20]

          Two entities filed petitions under F.S. 120.56(2) challenging a proposed change to the Florida Rules of Administrative Procedures.  Their petitions were consolidated with several others.  All petitioners prevailed on the merits.  In awarding fees under F.S. 120.595(2), the administrative law judge (“ALJ”) determined that the fee cap in the statute limited the successful petitions to a collective total of $50,000 rather than allowing each petitioner to recover a maximum of $50,000. 

          Two of the petitioners appealed.  “The sole issue presented [on appeal] is whether after separate rule challenge proceedings are consolidated the limitation on attorney's fees imposed by section 120.595(2) applies on an aggregate basis or per petition.”

          The Second DCA reversed.  The appellate court noted that, “the ALJ fashioned an exception to a prevailing petitioner's statutory right to recover up to $50,000 in attorney’s fees, when the legislature prescribed no such exception.  This was beyond the ALJ's authority.”  The court concluded:  “[W]e hold that in a consolidated rule challenge the $50,000 limitation on attorney’s fees prescribed in section 120.595(2) cannot be applied on an aggregate basis but rather must be applied to each petition.”  Tampa Bay Downs, Inc. v. Dept. of Business and Professional Regulation, __ So.3d __ (Fla. 2d DCA, No. 2Dd18-1968, 2/28/2020), 2020 WL 961578.

Probate court erred in imposing charging lien and awarding personal representative’s former lawyer fees to be partly paid by former personal representative personally.  [Added 3/31/20]

          Two brothers had a contentious, multi-decade fight over their deceased father’s estate.  Both appealed a probate court order awarding fees to Lawyer, who served as the attorney for one brother, Ruben, when Ruben served as personal representative of the estate.  The order awarded fees and costs to Lawyer to be divided between the estate and Ruben, personally, because “Ruben directed [Lawyer] to engage in frivolous litigation on the estate’s behalf.”  The Fifth DCA did not disturb this finding.  The order also imposed a charging lien in favor of Lawyer on Ruben’s share of the estate.

          The appeals court reversed the fee order “because the probate code does not allow for the personal imposition of attorney’s fees and [Lawyer] is not entitled to a charging lien.”

          The probate code permits a court to direct that attorney’s fees be paid out of a beneficiary’s share, but “it does not permit probate courts to impose personal liability for the estate’s attorney’s fees and costs.”  It was error to direct Ruben to pay the estate’s fees personally.

          Further, Lawyer was not entitled to a charging lien “because ‘[t]he personal representative . . . received no fund or positive judgment or settlement out of [his] efforts.’  See Correa v. Christensen, 780 So.2d 220, 220–21 (Fla. 5th DCA 2001) (citing Sinclair, 428 So.2d at 1383).  Indeed, he merely administered the estate and produced no tangible return for the estate or the personal representative.”  Lopez v. Hernandez, __ So.3d __ (Fla. 5th DCA, No. 5D18-2773, 2/28/2020), 2020 WL 961840.

Prevailing party fees should not have been awarded against plaintiffs that voluntarily dismissed the  suit because the dismissal did not make the defendants “prevailing” parties under the facts of the case.  [Added 3/24/20]

          Plaintiffs filed a declaratory judgment action against Defendants in a dispute between residential community homeowners and the developer.  Plaintiffs voluntarily dismissed the suit when the community association brought a claim against Defendants “for the same relief [Plaintiffs] had sought.”  After the voluntary dismissal, Defendants filed a motion for sanctions.  The trial court awarded Defendants fees as a sanction against Plaintiffs and their counsel under F.S. 57.105.  The court also awarded fees to Defendants under a prevailing party provision in the community’s declarations (pursuant to a timely-filed motion under Fla.R.Civ.P. 1.525).  Defendants appealed.

          The Second DCA reversed.  As to the fee award under F.S. 7.105, the appeals court held that the motion for sanctions was untimely because it was not filed before the case was voluntarily dismissed.

          Although the prevailing party fees motion was timely filed, the fee award “was erroneous because [Defendants] did not prevail.”  Although a plaintiff’s voluntarily dismissal ordinarily makes the defendant the prevailing party, in this case Defendants did not actually prevail.  “[Plaintiffs] dismissed their action after the homeowner's association for the residential community became involved in the litigation and asserted the same claims against the developer that [Plaintiffs] had asserted. After the association took up the cause, it would have served no purpose for [Plaintiffs] to continue to pursue their separate action.  [Defendants] did not achieve its objective of making the litigation go away as a result of the dismissal – the same claims remained pending against [Defendants].  Under these circumstances, it was error to conclude that [Defendants] had prevailed.”  Residents for a Better Community v. WCI Communities, Inc., __ So.3d __ (Fla. 2d DCA, No. 2D18-1917, 2/26/2020), 2020 WL 912793.

Public adjuster who contracted for contingent fee of insurance proceeds may not serve as “disinterested appraiser” for appraisal required by policy’s dispute resolution process.  [Added 3/18/20]

          Crispin filed a claim with her homeowner’s insurer and hired a public adjuster to help her with the claim.  The insurer issued payment on the claim.  Crispin then invoked her policy’s appraisal provision, which required that each party select “a qualified, disinterested appraiser.”  Crispin selected her public adjuster.  The insurer objected on the ground that the adjuster was “not disinterested with respect to [Crispin’s] claim.”  Crispin filed a petition for declaratory relief seeking to have her adjuster serve as appraiser under the terms of the insurance policy.  The trial court granted the requested relief for Crispin.  The insurer appealed.

          The Fifth DCA reversed.  The appeals court approvingly cited State Farm Fla. Ins. Co. v. Valenti, 285 So.3d 958 (Fla. 4th DCA 2019), noting that the Valenti court “concluded, based on the actions of the insured’s appraiser combined with his financial interest, that the insured’s public adjuster in that case was not ‘disinterested.’  We agree and conclude that Crispin’s adjuster was not disinterested as contemplated by the parties’ contract.”  The Fifth DCA further explained, “an appraiser is not disinterested in an insurance claim if the appraiser is entitled to a percentage of the recovery from the same insurance claim.  See [Valenti at 961] (Kuntz, J., concurring specially) (‘It is simple: [a] person with a direct financial interest in the outcome is not disinterested.’).”

          The court summarized:  “[W]e conclude that ‘disinterested’ is unambiguous, and its plain meaning excludes those with a pecuniary interest in the outcome.  Consequently, Crispin’s selected appraiser, who was entitled to a ten percent contingency fee of any proceeds received in the disputed claim, cannot serve as her appraiser pursuant to the parties’ bargained-for agreement.”  State Farm Fla. Ins. Co. v. Crispin, __ So.3d __ (Fla. 5th DCA, No. 5D19-249, 2/7/2020), 2020 WL 593345.

Florida Administrative Code rules of procedure do not extend statutory 30-day time limit for paying workers’ comp benefits before claimant’s entitlement to fees attaches.  [Added 3/12/20]

          Workers compensation Claimant filed a petition for benefits on August 22.  The employer/carrier (“E/C”) responded on August 29 by denying the entire claim.  On September 24, however, the E/C rescinded the denial, agreed to provide all requested benefits, and issued a check.  The E/C also denied Claimant’s entitlement to statutory attorney’s fees.

          Under F.S. 449.34(3), a claimant who makes a successful claim for benefits is entitled to fees if the requested benefits are not paid within 30 days after the employer/carrier receives the claimant’s petition for benefits.  Even if the employer/carrier initially denied the benefits, it can avoid liability for fees if it pays them within the 30-day window.

          In this case, the E/C argued that it paid the benefits within the required 30-day period because the 30th day (September 22) fell on a Saturday and the time limit was extended to the following Monday (September 24) by operation of Florida Administrative Code Rule 60Q-6.109 (concerning computation of time).  The Judge of Compensation Claims (“JCC”) concluded that the administrative code rules, “being procedural, do not supersede the substantive statute” and so do not extend the 30-day time period in which benefits must be paid to avoid the obligation to pay the claimant’s attorney fees.

          The First DCA affirmed.  “The substantive right the statute bestows is one of fee entitlement (the exception to the rule), not fee avoidance (which is the rule), and unless the Legislature specifies that the time period that must expire before a right attaches is to be calculated using ‘business’ rather than ‘calendar’ days, or is otherwise subject to a procedural rule that extends that period, the rule cannot operate to do so.”  Zenith Ins. Co. v. Cruz, __ So.3d __ (Fla. 1st DCA, No. 1D19-1141, 2/12/2020), 2020 WL 702493.

Lawyers for wife in divorce case entitled to F.S. 57.105 fees after husband’s former law firm filed charging lien against them not supported by material facts or application of existing law to facts.  [Added 3/9/20]

          Lawyers Schurr and Hertz represented the wife in a dissolution of marriage case.  The husband was represented by the law firm of Silverio and Hall, P.A. (“Silverio”).  Silverio withdrew during the case and filed a notice of and motion for charging lien.  While the dissolution case was still pending the husband executed a “Stipulated Judgment” against him for fees on Silverio’s charging lien, purporting to give Silverio a lien on all assets the husband received in the case.  Neither the charging lien claim nor the Stipulated Judgment identified any particular real property.

          At mediation in the dissolution case wife and husband entered into a Marital Settlement Agreement (“MSA”).  Silverio was notified of that fact the same day.  The MSA was filed with the court a few weeks later, and final judgment was rendered a month after that.

          Two days before the MSA was filed with the court Silverio filed a motion to adjudicate its charging lien against Schurr and Hertz (and the husband’s then-current counsel).  Silverio alleged that Schurr and Hertz did not notify Silverio of the settlement and failed to protect its lien interest.  Schurr and Hertz then moved for sanctions under F.S. 57.105, contending that “Silverio’s motion to adjudicate charging lien against counsel was not supported by the material facts necessary to establish the claim and was not supported by the application of then-existing law to the material facts.”  The trial court denied both Silverio’s motion to adjudicate charging lien and Schurr and Hertz’s motion for 57.105 fees.  Schurr and Hertz appealed.

          The Second DCA reversed.  Silverio produced “no admissible evidence to establish that Schurr and Hertz ever held any assets that were awarded to the Former Husband in the Dissolution Judgment.  Schurr and Hertz did not transfer any assets to the Former Husband; rather, the MSA allowed the Former Husband to retain property.”  Further, Schurr and Hertz notified Silverio of the settlement on the day that it was reached.  Silverio received a copy of the MSA shortly after that, about a month before the dissolution judgment was entered.

          The appeals court summarized:  “Schurr and Hertz, the opposing attorneys, had no physical possession of the Former Husband’s proceeds of recovery, and Silverio had notice of the settlement a month before the Dissolution Judgment on the settlement was entered.  Under these circumstances, we conclude that Silverio's claim was not supported by the material facts necessary to establish its claim and was not supported by the application of the then-existing law to the material facts.  Therefore, we reverse the order denying Schurr and Hertz’s section 57.105 motion and remand for further proceedings.  Schurr v. Silverio & Hall, P.A., __ So3.d __ (Fla. 2d DCA, No. 2D18-2876, 2/14/2020), 2020 WL 741445.

Receding from prior opinion, Fourth DCA rules that email service requirements of Fla.R.Jud.Admin. 2.516 do not apply to service of safe harbor notice under F.S. 57.105.  [Added 3/2/20]

          Law Firm was sued by Former Client for alleged legal malpractice.  The Firm served Former Client and his New Counsel with a 21-day safe harbor notice and proposed motion for sanctions under F.S. 57.105.  The proposed motion sought sanctions from both Former Client and New Counsel.  When the 21-day period expired, Law Firm filed the motion. After New Counsel withdrew and Former Client failed to get replacement counsel before the deadline imposed by the trial court, the court dismissed the case.  Law Firm then set its motion for sanctions for hearing.

          New Counsel moved to strike Law Firm’s motion, arguing that Law Firm failed to comply with the Fla.R.Jud.Admin. 2.516 requirements for email service as required by Matte v. Caplan, 140 So.3d 686 (Fla. 4th DCA 2014).  Law Firm responded that its service of the safe harbor notice was not required to comply with rule 2.516 and that Matte was not controlling because it had been expressly disapproved by the Supreme Court in Wheaton v. Wheaton, 261 So.3d 1236 (Fla. 2019).  The trial court granted the motion to strike, distinguishing Wheaton because it dealt with a motion for fees under F.S. 768.79 rather than a 57.105 safe harbor notice.  Law Firm appealed.

          The Fourth DCA reversed.  “Given Wheaton’s reasoning, it appears Matte is no longer good law.  While Wheaton and Matte are distinguishable, because Wheaton addressed whether rule 2.516 applies to section 768.79 proposals for settlement, and Matte addressed whether rule 2.516 applies to section 57.105 safe harbor notices, we cannot ignore that Wheaton expressly disapproved Matte, because pre-filing service of section 57.105 safe harbor notices are similar to pre-filing service of section 768.79 proposals for settlement.  Based on the foregoing, we recede from Matte and Estimable, and instead hold that rule 2.516’s e-mail service requirements do not apply to service of a section 57.105 safe harbor notice.”  Law Offices of Fred C. Cohen, P.A. v. H.E.C. Cleaning, LLC, __ So.3d __ (Fla. 4th DCA, No. 4D19-1070, 2/5/2020), 2020 WL 559240.

Second DCA questions, but does not decide, validity of argument made by prevailing homeowner in mortgage foreclosure who unsuccessfully sought fees despite lender’s lack of standing.  [Added 2/26/20]

          Bank sued Homeowner to foreclose a mortgage.  Homeowner defended alleging the Bank lacked standing.  The trial court granted Homeowner’s motion for involuntary dismissal at the conclusion of Bank’s case.  Homeowner sought prevailing party fees, but the trial court denied the motion despite apparently favorable precedent in the Second District.  Compare Madl v. Wells Fargo Bank, N.A., 244 So.3d 1134 (Fla. 5th DCA 2017) and Harris v. Bank of New York Mellon, 2018 WL 6816177 (Fla. 2d DCA, Dec. 28, 2018) (fees recoverable by prevailing borrower despite lender’s lack of standing) with Deutsche Bank Trust Co. Americas v. Page, 274 So.3d 1116 (Fla. 4th DCA 2019) (holding “no standing = no attorney’s fees”).  Homeowner appealed.

          The Second DCA affirmed.  Homeowner pursued “a somewhat unique tack” on appeal, arguing that “the recorded mortgage itself, separate and distinct from the promissory note, offers its own independent basis for her to recover” fees from Bank, the unsuccessful plaintiff.  Notwithstanding Bank’s lack of standing, Homeowner “argues she is entitled to recover her attorney's fees under the mortgage [Bank] tried to foreclose.  As [Homeowner] puts it, ‘[m]ortgages and [a]ssignments of [m]ortgage are valid, stand-alone contracts.’”  Consequently, she contended, the evidence showed the mortgage had been assigned (even though the note had not) and she was entitled to recover fees because the mortgage itself contained a prevailing party fee provision.

          The appeals court stated that it “very much question[ed] the premise of” Homeowner’s argument.  The court, however, did not need to address Homeowner’s argument because it was not presented below and would require factual findings that had not been made.  ​Jones v. U.S. Bank Trust, N.A., __ So.3d __ (Fla. 2d DCA, No. 2D18-02106, 1/31/2020), 2020 WL 499716.

​Prevailing party not entitled to fees because there was no “recovery” as required by fee agreement between prevailing party and his lawyer.  [Added 2/24/20]

          Pickle signed a note and mortgage to Hale to buy an apartment complex.  Pickle failed to pay as agreed, so Hale took possession of the property and collected the rents.  Hale filed a foreclosure suit against Pickle.  Pickle hired a lawyer on a contingent fee agreement; the lawyer was to get 20% of the property value “from the proceeds of recovery.”  No fee was owed “if no recovery [was] made.”

          Hale voluntarily dismissed the foreclosure suit.  Pickle was the prevailing party and moved for fees.  The trial court denied the fee motion because Pickle recovered no proceeds following dismissal of the suit, so he owed no fees to his lawyer under the contingent fee agreement.

          The First DCA affirmed.  The terms “proceeds” and “recovery” in Pickle’s fee agreement with his lawyer “are not ambiguous and must be construed consistent with their ordinary meaning.”  In this suit, there was no recovery and so there were no proceeds.  “To show that he made a recovery under the contingent fee agreement, Pickle needed to identify tangible benefits from his attorney’s services, such as a positive judgment or settlement.  . . .  But Pickle received no tangible benefit from the voluntary dismissal. Instead, dismissal of the lawsuit left the parties as though no action had been brought.”  (Citations omitted.)  Pickle v. Hale, __ So. 3d __ (Fla. 1st DCA, No. 1D18-5053, 1/31/2020), 2020 WL 500386.

Court erred in awarding fees against FIGA because insured’s claim was not denied by affirmative action before he filed suit.  [Added 2/21/20]

          Rubin filed a Hurricane Wilma property damage claim against his insurer.  After subtracting the deductible and depreciation, the insurer paid a small amount.  The insurer later became insolvent and the Florida Insurance Guaranty Association (“FIGA”) took its place.  Rubin had no pending claims against the insurer at that time.

          Later Rubin questioned the assessment of his claim by the insurer and filed suit against FIGA.  FIGA moved to stay in order to investigate.  FIGA filed an answer denying the material allegations in the complaint and raising affirmative defenses.  The court subsequently ruled on the parties’ cross-motions for summary judgment, granting Rubin’s and denying FIGA’s.  The parties then agreed on a settlement.  The trial court entered final judgment finding Rubin was entitled to fees.  FIGA appealed.

          The Fourth DCA reversed.  Although Rubin was the prevailing party, he was not entitled to fees under F.S. 631.70 because FIGA did not deny a “covered claim” by “affirmative action, other than delay” as required by the statute.  The court concluded:  “FIGA could not have had the opportunity to deny Rubin’s claim because Rubin did not notify FIGA about his claim until after he filed suit with the circuit court.  In fact, as the parties alluded to at oral argument, when FIGA attempted to investigate Rubin’s claims, Rubin’s attorneys were uncooperative, hindering FIGA’s ability to quickly resolve the claim.  Accordingly, denial of Rubin’s claims reflected a lack of opportunity to first investigate his contentions, rather than a voluntary denial of his claims.”  Florida Ins. Guaranty Ass’n v. Rubin, __ So.3d __ (Fla. 4th DCA, No. 4D18-3147, 1/29/2020), 2020 WL 465351.

Court erred in not awarding prevailing party fees where movant proved breach of contract but did not recover damages.  [Added 2/13/20]

          Watkins hired Hardeman Landscape Nursery (“Hardeman”) for landscaping work.  The parties disagreed on how the project should be completed.  Watkins sued Hardeman, who counterclaimed.  The trial court ruled that Hardeman had proved a breach of contract by Watkins but recovered nothing because it failed to properly prove damages.  The court “also determined that Watkins had failed to prove a breach of contract and therefore would recover nothing.”  Hardeman’s motion for prevailing party fees was denied on the ground that “there was no prevailing party in this case.”  Hardeman appealed and Watkins cross-appealed.

          The Second DCA reversed.  “Because Hardeman prevailed both on Watkins' main claim and on its own counterclaim, the trial court abused its discretion by declining to award Hardeman prevailing party attorney’s fees.”  In a breach of contract case, absent “compelling circumstances” one party must prevail.  “[A] finding that one party breached the contract makes the opposing party the prevailing party on the litigation's significant issues even where no damages are awarded.  . . .  Here, the court concluded that Watkins had initially breached the contract and that Hardeman was justified in not completing additional work.  There was no indication of compelling circumstances that would make it unjust for Hardeman to recover fees.”  (Citation omitted.)  Hardeman Landscape Nursery, Inc. v. Watkins, __ So.3d __ (Fla. 2d DCA, No. 2S18-4792, 1/22/2020), 2020 WL 355533.

O​rder awarding fees to former wife in marriage dissolution case reversed because it lacked adequate factual findings of wife’s need or husband’s inequitable conduct.  [Added 1/23/20]

          The trial court in a marriage dissolution case awarded fee to Former Wife.  The order “simply stated that Former Wife was entitled to fees and cited to Rosen v. Rosen, 696 So.2d 697 (Fla. 1997) [party’s need for fees], and Bitterman v. Bitterman, 714 So.2d 356 (Fla. 1998) [fee award based on inequitable conduct doctrine], to support that assertion.”  Former Husband appealed.

          The Fourth DCA reversed.  The order failed to include factual findings to support either Former Wife’s need for fees or Former Husband’s inequitable conduct, and so that case was remanded to the trial court for the necessary findings.  Office v. Office, __ So.3d __ (Fla. 4th DCA, Nos. 4D18-2910, 4D19-497, 1/8/2020), 2020 WL 87348.

Defendant in action for unpaid condo association assessments entitled to prevailing party fees even though he sold unit during pendency of litigation.  [Added 12/17/19]

           In December 2015 condo unit owner Tison was sued by the Association for unpaid assessments.  The actions were brought pursuant to the governing Declaration and F.S. 718.116.  In March 2017 the Association’s motion for summary judgment was denied.  Later that month, Tison sold his unit.  More than a year later, the trial court dismissed the suit for lack of prosecution.  Tison then moved for fees, alleging that he was the prevailing party and was entitled to fees under the Declaration and F.S. 718.303(1).  The trial court denied Tison’s fee motion, “ruling that although Tison was the prevailing party, Tison was not a unit owner and was not entitled to attorney’s fees.”  Tison appealed.

          The Fourth DCA reversed.  The appeals court stated the question presented as “whether Tison, as the prevailing party in the Association’s lawsuit against him for unpaid assessments, is entitled to attorney’s fees and costs even though he was no longer a unit owner at the time he filed his fee motion.”  The court answered:  “[B]ecause Tison was a unit owner at the time the Association’s alleged cause of action accrued, he had a vested right to attorney’s fees under the Declaration and under section 718.303(1) upon prevailing in the litigation.  Tison’s substantive legal rights, including his status as a unit owner for purposes of the statutory and contractual fee provisions at issue here, were fixed when the cause of action accrued.”  Tison v. Clairmont Condominium Ass’n, Inc., __ So.3d __ (Fla. 4th DCA, No. 4D19-117, 11/6/2019), 2019 WL 5778057.

Court erred in denying fees to party that prevailed on “separate and distinct” claim in lawsuit, even though party did not prevail on “significant issue” in case.  [Added 12/9/19]

          Homeowners sued builder (Centex) and the homeowners’ association (HOA) in a 3-count suit seeking a declaration of rights under the governing covenants and restrictions document.  Each count requested distinctive relief.

          The trial court dismissed count III with prejudice, reserving jurisdiction to award fees and costs.  The court later rendered summary judgment against Homeowners on the other 2 counts, reserving jurisdiction to award fees and costs.  Homeowners appealed as to count II and were successful.  Ultimately they prevailed on Count II.  The trial court found that count II “was the significant issue in the case.”  The court awarded fees to Homeowners regarding count II, but denied fees to Centex as to count III.  Centex appealed.

          The Fifth DCA reversed, concluding that the trial court erred in not awarding fees to Centex for Count III.  A trial court’s determination of whether a party prevails on the “significant issues” in a case to make that party the “prevailing party” for purposes of awarding fees is reviewed for an abuse of discretion.  But whether multiple claims within a lawsuit are “separate and distinct” for purposes of awarding fees is a matter of law to be reviewed de novo by the appeals court.

          Here, “[d]espite its apparent recognition of the distinct nature of count III, the trial court declined to award fees, noting the time expended in the defense of the claim was not ‘significant.’  The court erred in this regard.”  Both the applicable statute (F.S. 720.305) and the governing document have mandatory fee award language, and “[n]either provision contains a de minimis exception.”  The court concluded:  “Because Centex prevailed on a separate and distinct claim to which mandatory fee provisions apply, we hold that the trial court erred in denying Centex’s motion for fees as to count III.”  MacKenzie v. Centex Homes, __ So.3d __ (Fla. 5th DCA, No. 5D18-1901, 11/1/2019), 2019 WL 5654878.

Proposal for settlement accepted by one co-defendant after proposal made to other co-defendant is “postoffer settlement” that is added to net judgment in determining entitlement to under F.S. 768.79.  [Added 11/27/19]

          Wilcox was injured in a collision with a vehicle owned by Jason Neville and operated by Michael Neville.  Wilcox served separate proposals for settlement on Jason and Michael.  Jason accepted Wilcox’s proposal to resolve her claims against him for $60,400 and was dismissed from the suit.  Michael did not accept the proposal made to him.  The case was tried and a verdict of $126,592 was rendered against Michael.

          Wilcox moved for attorney’s fees pursuant to the rejected proposal for settlement.  The parties disagreed over whether Jason’s acceptance of the proposal for settlement “constituted a ‘postoffer settlement’ that should be added to the net judgment under section 768.79(6).”  If the $60,400 amount was not added to the net judgment, Wilcox would not meet the statutory threshold entitling her to fees under F.S. 768.79.

          The trial court ruled that “Jason’s settlement during [Wilcox’s] thirty-day acceptance period was not a postoffer settlement” and denied her claim for fees.  Wilcox appealed.

          The First DCA reversed.  “Postoffer settlement” is not defined in the statute, so the court looked to the plain meaning of the term:  “‘Post’ has been defined as ‘after.’”  Therefore, “the plain meaning of ‘postoffer’ to be after the offer . . .  As such, we interpret ‘postoffer settlement’ to mean settlement reached any time after the service of the offer.”  Accordingly, the offer to Jason that he accepted was a “postoffer settlement” and so was to be included in the calculation for determining Wilcox’s entitlement to fees.

          The court summarized:  “[T]he clear and unambiguous language of section 768.79(6) requires the judgment obtained to include the amount of any settlement by a co-defendant after the date of service of the offer on the defendant by which the verdict was reduced.  Here, it is undisputed that [Wilcox] reached a $60,400 settlement with Jason after serving her offer on [Michael] and the verdict was reduced by that amount.  Accordingly, the trial court was required to add the $60,400 settlement amount to the net judgment in calculating the judgment obtained and determining [Wilcox’s] entitlement to fees.”  Wilcox v. Neville, __ So.3d __ (Fla. 1st DCA, No. 1D18-4057, 10/30/2019), 2019 WL 5584878.​

Court erred in denying fees in dissolution case on ground that claim had not been properly pleaded.  [Added 11/5/19]

          Wife in a dissolution action sought attorney’s fees.  The trial court entered a postdecretal final order divesting Wife of entitlement to fees on the ground that her claim for fees “had not been properly pled as required by Stockman v. Downs, 573 So.2d 835 (Fla. 1991).”  Wife appealed.

          The Third DCA reversed.  “As the record establishes the applicability of the well-entrenched ‘exception to the Stockman doctrine which applies when the opposing party raises no objection to a clearly asserted claim to fees,’ we reverse for the imposition of attorney’s fees in favor of [Wife].”  (Footnote and citations omitted.)  Navarro v. Veloz, __ So.3d __ (Fla. 3d DCA, No. 3D18-1990, 10/30/2019), 2019 WL 5582248.

In affirming fee award in dissolution case, appeals court rejected argument that use of term “frivolous and vexatious litigation” in fee order meant that fees were awarded as sanction.  Added 10/4/19]

          In a divorce case the trial court awarded fees to Former Husband.  Former Wife appealed, contending that the trial court’s use in the fee order of the term “frivolous and vexatious litigation” to describe Former Wife’s many unsuccessful post-judgment claims meant that the trial court had invoked its “inherent authority” to award fees as a sanction without making the required factual findings.

          The Third DCA affirmed.  Former Husband’s fee motion was grounded on F.S. 61.16.  “The fact that one or more of the former wife’s claims were termed ‘frivolous’ or ‘vexatious’ in the final order does not transform it into an order awarding statutory or common law sanctions.  Under Rosen [v. Rosen, 696 So.2d 697 (Fla. 1997)], the trial court may consider the merits of the parties’ positions as a pertinent aspect of the decision to award a fee.”  Quigley v. Culbertson, __ So.3d __ (Fla. 3d DCA, No. 3D19-28, 9/18/2019), 2019 WL 4458403.

Borrower not entitled to prevailing party fees after successfully defending foreclosure action on ground that plaintiff bank was never party to loan contract.  [Added 9/13/19]

          Bank sued Borrower in a mortgage foreclosure action.  Borrower had executed a note with the original lender (“MAS”).  Plaintiff Bank alleged that MAS assigned the note to Bank.  Borrower filed a motion to dismiss, arguing that Bank lacked standing because the purported assignment was invalid.  Although the trial court denied the motion to dismiss, Borrower prevailed at trial on this defense.  The trial initially awarded prevailing party fees to Borrower pursuant to F.S. 57.105(7), but on rehearing denied the fee motion.  Borrower appealed.

          The Second DCA affirmed.  Borrower “prevailed on the basis that [Bank] never became a party to the mortgage by virtue of the assignment, foreclosing his argument that [Bank] was a party to ‘a contract contain[ing] a provision allowing attorneys’ fees to a party when he or she is required to take any action to enforce the contract.’  See § 57.105(7).”

          The Second DCA distinguished its decision in this case from Harris v. Bank of New York Mellon, 2018 WL 6816177 (Fla. 2d DCA, Dec. 28, 2018), which Borrower cited as authority.  In Harris the borrower did not allege that the lender was never a party to the contract, but instead successfully defended on the ground that the lender had lost that status prior to filing suit.  Hopson v. Deutsche Bank National Trust Co., __ So.3d __ (Fla. 2d DCA, No. 2D18-673, 8/28/2019), 2019 WL 4049625.​

Indemnification provision in proposals for settlement served on co-parties was invalid because it did not state amounts attributable to each party with particularity and did not allow each offeree to independently evaluate offer.  [Added 8/16/19]

          Plaintiffs Brown and Reid filed a water damage claim with their property insurer, Safepoint.  Safepoint served separate proposals for settlement of $2500 on the plaintiffs.  “If either plaintiff accepted the Proposal, she would agree to indemnify Safepoint for attorneys’ fees and costs, including any incurred from continuing litigation should the other party not settle.”  Neither accepted.  After summary judgment was granted for Safepoint, it moved for fees.  The trial court denied the motion, ruling that Safepoint’s proposals were ambiguous and violated the differentiation requirement in Fla.R.Civ.P. 1.442(c)(3).

          The Third DCA affirmed.  Rule 1.442(c)(3) requires that proposals for settlement be stated with particularity and that joint proposals “state the amount and terms attributable to each party.”  Further, under F.S. 768.79 the court must compare the “amount of the offer” with the “judgment obtained.”  The proposals did not satisfy these standards.

          Proposals for settlement to multiple offerees are invalid if they do not allow each individual offeree to settle the case “knowing the extent of his or her financial responsibility.”  Attorneys’ Title Ins. Fund, Inc. v. Gorka, 36 So.3d 646, 651 (Fla. 2010).  The Supreme Court reasoned that if only one party agrees to a proposal that requires mutual agreement, that party is forced to participate in further litigation beyond his or her control, which goes against the goal of the statute and rule to end litigation through settlements.  “Similarly, in the instant case, Safepoint’s Proposals would only cause further litigation.  If Brown were to accept Safepoint’s Proposal and Reid continues litigation, Brown would be obligated to pay Safepoint an indeterminable amount of money, which goes against the particularity requirement of rule 1.442.  The trial court could not weigh the proposed amount versus the judgment as required by section 768.79 because the future legal fees are an unknowable variable to be subtracted from the offered $2,500.00.  Moreover, the Proposals prevent Brown and Reid from independently evaluating the offer.”  Safepoint Ins. Co. v. Brown, __ So.3d __ (Fla. 3d DCA, No. 3D18-347, 8/7/2019), 2019 WL 3674369.

Circuit court sitting in appellate capacity erred in denying fees to litigant that prevailed on offer of judgment fee claim statute in trial court.  [Added 8/14/19]

          Insurer obtained a fee award in the trial court under the offer of judgment statute, F.S. 768.79.  Insurer prevailed on appeal to the circuit court sitting in its appellate capacity.  The circuit court, however, denied Insurer’s claim for appellate fees.

          The Third DCA reversed.  “We have held that the Circuit Court, sitting in its appellate capacity, departs from the essential requirements of law when it denies a motion for appellate attorney’s fees under identical circumstances. . . .  Based on the trial court’s determination of petitioner’s entitlement to attorney’s fees under section 768.79, the circuit court departed from the essential requirements of law in not conditionally granting State Farm’s motion for appellate attorney’s fees based on the same statute.”  (Citations omitted.)  State Farm Mut. Auto. Ins. Co. v. Caribbean Rehabilitation Center, Inc., __ So.3d __ (Fla. 3d DCA, No. 3D19-366, 8/7/2019), 2019 WL 3675137.

Offers of judgment must be evaluated as of time of offer, and so punitive damages that were not part of case when offer was made could not be considered in calculating judgment obtained.  [Added 8/9/19]

          Defendants (“PBCS”) were sued by Copeland for injuries suffered in an auto accident.  Copeland served a proposal for settlement for $345,000 pursuant to F.S. 768.79 and Fla.R.Civ.P. 1.442.  The proposal stated that “[t]here are no claims for punitive damages in the case and none of the proposed settlement amount is for punitive damages.”  At the time, Copeland’s complaint did not include punitive damages.  PBCS did not accept the proposal.

          Copeland subsequently amended her complaint to add a punitive damage claim.  The jury returned a verdict awarding Copeland $400,000 in compensatory damages, reduced by 10% to $360,000 due to comparative fault.  The jury awarded $1 million in punitive damages.

          Copeland moved for fees based on the rejected proposal for settlement.  Over PBCS’s objection, the trial court included the punitive damages award in calculating whether Copeland’s recovery met the fee threshold.  As a result, the court concluded that Copeland had recovered “an amount ‘significantly more tha[n] 25% greater than her proposal for settlement of $345,000’” and awarded fees to her.  PBCS appealed.

          The First DCA reversed.  Proposals for settlement under F.S. 768.79 must be evaluated as of the time of the offer.  “Because punitive damages were not part of the case on the date of the offer of settlement, the calculation of the ‘net judgment’ and ‘judgment obtained’ required in section 768.79(6)(b), could not include the amount of the punitive damages verdict.”  The court further noted:  “Because section 768.79(2)(c) requires parties to ‘state with particularity the amount offered to settle a claim for punitive damages,’ Copeland could not both disclaim them in her only settlement offer, then seek them and have [PBCS] sanctioned based upon them.”  Palmentere Brothers Cartage Service, Inc. v. Copeland, __ So.3d __ (Fla. 1st DCA, No. 1D17-2330, 7/29/2019), 2019 WL 3402802.

Court erred in awarding fees against former husband where equitable distribution had equalized parties’ financial positions.  [Added 7/26/19]

          The trial court placed the divorcing spouses in similar financial positions through equitable distribution and alimony awards.  Despite this, the court granted a partial fee award to former wife.  Husband appealed.  The Second DCA reversed.  “It was an abuse of discretion to order the former husband to pay the former wife’s partial fees when the judgment of dissolution placed the parties in similar financial positions and there was no indication that the former husband otherwise had the ability to pay.”  Ingram v. Ingram, __ So.3d __ (Fla. 2d DCA, No. 2D18-3978, 7/10/2019), 2019 WL 3214118.

Error to impose charging lien that extended beyond proceeds that former client recovered through lawyer’s efforts in dissolution case.  [Added 7/22/19]

          Lawyer represented Wife in a dissolution of marriage case.  Lawyer asserted a charging lien for unpaid fees and costs incurred during the case.  The trial court imposed a charging lien judgment entitling him to the equitable distribution of funds Wife received from the dissolution action and “all of her money and/or personal property in her possession.”  Wife appealed, contending that the scope of the charging lien was too broad.

          The Second DCA agreed and reversed.  A charging lien judgment in a dissolution action is limited to only property recovered by the client in the case as a result of the lawyer’s efforts.  (Citations omitted.)  The lien imposed by the trial court was “overly broad” because it was not limited to the proceeds recovered by Wife in the dissolution case through Lawyer’s efforts.  The appeals court remanded the case, directing the trial court to “enter an amended judgment striking the language that the charging lien be placed on ‘all of her money and/or personal property in her possession.’”  Szurant v. Aaronson, __ So.3d __ (Fla. 2d DCA, No. 2D18-2092, 7/17/2019), 2019 WL 3210370.

Prevailing party properly awarded “fees on fees” because of contractual provision allowing recovery of fees “for litigating the issue of the amount of fees to be awarded.”   [Added 7/19/19]

          Unit Owner filed a declaratory judgment action against a commercial Plaza that operates as a common interest community.  Unit Owner sought to convert his 2 commercial units into affordable housing units.  Plaza filed a separate suit to foreclose a lien relating to unpaid assessments.  The cases were consolidated and Plaza prevailed.  Plaza was entitled to fees under the community’s governing documents.  The trial court “awarded fees incurred in the underlying litigation, and, relying upon an expansive fee provision set forth within the [governing documents], further awarded fees incurred in litigating the amount of fees, otherwise known as ‘fees on fees.’” 

          Unit Owner appealed, arguing that the trial court erred in awarding “fees on fees.”  The Third DCA affirmed.  Ordinarily, where a document or statute provides that a prevailing party may obtain fees, the fee award is limited to fees for litigating entitlement to rather than the amount of the fees.  The appeals court noted, however, that “certain contractual fee provisions are sufficiently broad to warrant an exception.”  The By-Laws (part of the governing documents) in this case met this criteria; they “allow for the recovery of fees ‘for litigating the issue of the amount of fees to be awarded’ in both the trial and appellate proceedings” and so the trial court “was bound to enforce its terms.”  Burton Family Partnership v. Luani Plaza, Inc., __ So.3d __ (Fla. 3d DCA, No. 3D18-1935, 7/3/2019), 2019 WL 2844271.

Insurer negligent in failing to protect withdrawn law firm’s charging lien of which it had notice.  [Added 7/12/19]

          A law firm (“First Firm”) was hired to represent Client in negotiations with the Insurer of an opposing party.  First Firm agreed and commenced work.  Client subsequently discharged First Firm and hired Second Firm to continue negotiating with Insurer.   First Firm sent written notice of its claim for a charging lien for quantum meruit fees to Client, Insurer, and Second Firm.  It is undisputed that Insurer received notice of the lien, which charging lien requested that no disbursements be made by any defendant or insurer until the lien was resolved and that First Firm’s name appear on any settlement checks to Client.

          Client’s claim was settled for $175,000.  Insurer sent the check to Second Firm without including First Firm as a payee.  Second Firm disbursed the funds without notice to First Firm.  A few months later, Second Firm negotiated with First Firm regarding the charging lien.  When the negotiations broke down, First Firm filed suit seeking recovery of its fees.  All parties were eventually dismissed except Insurer.  The trial court found Insurer negligent and awarded $50,000 to First Firm.  Insurer appealed.

          The Third DCA affirmed.  First Firm timely filed its charging lien and provided notice to Insurer, thus perfecting its lien.  “Such a perfected lien is ‘chargeable against any person who, at the time notice of intent to claim a lien is given, holds monies or property which become proceeds of a judgment to be entered in the future.’”  (Emphasis by court; citations omitted.)  Insurer had an affirmative duty to notify First Firm of the settlement and protect its lien interest.  The court concluded:  “We agree with the trial court that [Insurer] had a duty to protect [First Firm]’s attorney’s lien by notifying [First Firm] of the settlement, including [First Firm] on the settlement check or obtaining [First Firm]’s waiver of its lien in writing, or obtaining a Hold Harmless agreement from [Second Firm].  [Insurer] did none of these things.  We therefore affirm the order finding [Insurer] negligent and liable for [First Firm]’s attorney’s fees.”  Geico General Ins. Co. v. Steinger, Iscoe & Greene-II, P.A., __ So.3d __ (Fla. 3d DCA, No. 3D18-1280, 6/26/2019), 2019 WL 2607363.

Despite being small and made 9 months into case, offers of judgment were made in good faith and their rejection meant court should have granted offeror’s motion for fees.  [Added 7/11/19]

          Law Firm and its 2 principals sued Tribe for conduct in prior suits.  Tribe moved to dismiss based on sovereign immunity.  The motion to dismiss was denied in November 2016.  Tribe filed an appeal in December 2016.  Oral argument on the appeal was held in May 2017.  The week after the oral argument, Tribe made offers of judgment in the amount of $7500 to each of the plaintiffs in the underlying suit.  The offers were not accepted.  Three months later, the appeals court reversed the denial of Tribe’s motion to dismiss and held that the suit was barred by sovereign immunity.

          Tribe then moved for fees based on its offers of judgment.  The trial court denied the fee motion because they were “(1) nominal and (2) not made at the beginning of the lawsuit but nine months into the case.”  Law Firm appealed.

          The Third DCA reversed.  The trial court had determined, in part, that the offers lacked good faith because they were nominal.  But the fact that an offer is nominal does not necessarily indicate a lack of good faith.  Rather, “the Tribe had a well-founded, good faith, and legally correct belief that sovereign immunity divested the trial court of subject matter jurisdiction.”

          The other point relied on by the trial court in denying fees was the timing of the offers, which were made 9 months after the appeal of the motion to dismiss was filed and while it was pending following argument.  “This was also error.  The statute at issue envisions offers of judgment being made well into the litigation because it awards fees not incurred from the inception of the lawsuit but fees ‘incurred from the date the offer was served.’  [F.S.] 768.79(6)(a).  Moreover, the governing rule contains time restrictions on offers of judgment, but the offers here were made well within those time restrictions.  Fla.R.Civ.P. 1.442(b).  Finally, the offers were made immediately after a major event in the case, namely the appellate argument on the interlocutory appeal.  The Tribe may well have left the oral argument believing the appellate court was persuaded by its arguments.”  Miccosukee Tribe of Indians of Florida v. Lewis Tein P.L., __ So.3d __ (Fla. 3d DCA, No. 3D18-1132, 6/19/2019), 2019 WL 2518262.

Court erred in awarding fees under F.S. 768.79 based on rejected proposal for settlement by including costs that were not taxable on date proposal for settlement was filed.  [Added 7/9/19]

          Personal Representative Lewis sued R.J. Reynolds Tobacco Company in a wrong death and survival action, alleging the decedent’s death was due to products manufactured by Reynolds.  Lewis filed a proposal for settlement that Reynolds rejected.  The jury awarded damages to Lewis.  Lewis sought taxable costs and moved for fees pursuant to F.S. 768.79.  Lewis needed $61,250 or more in taxable costs to meet the statutory threshold for a fee award.

          The trial court awarded $64,047 in costs to Lewis.  This amount included costs and expenses related to 4 expert witnesses retained by Lewis, “but who had not testified or been deposed at the time the [proposal for settlement] was served.”  Reynolds appealed the fee award, contending that the court erred by including the expenses for the non-testifying experts.  The Fifth DCA agreed and reversed.

          Under White v. Steak & Ale of Florida, Inc., 816 So.2d 546 (Fla. 2002), in considering whether to award a fee under F.S. 768.79 a court may only costs that were already taxable on the date the proposal for settlement was filed.  The 4 experts did not testify at deposition or trial.  “Thus, costs related to them are nontaxable under the guidelines.  Therefore, those costs cannot be included in the calculations for determining whether Lewis was entitled to attorney’s fees, and the trial court erred by including the non-testifying experts’ costs in its calculations.”  Lewis’s taxable costs on the day the proposal for settlement was filed totaled $44,014.60, which meant that he fell short of the statutory threshold by $17,235.41.”  R.J. Reynolds Tobacco Co. v. Lewis, __ So.3d __ (Fla. 5th DCA, Nos. 5D17-773, 5D18-3654, 6/14/2019), 2019 WL 2477961.

Fourth DCA holds “no standing = no attorney’s fees” in mortgage foreclosure case, certifying conflict with Second and Fifth DCAs.  [Added 6/24/19]

          Bank filed a foreclosure suit against Borrower.  Borrower’s answer asserted that the note and mortgage were unenforceable because Bank lacked standing.  At trial Borrower argued that Bank lacked standing at the inception of the suit.  Bank responded that it had standing at the time of trial.  The trial court granted Borrower’s motion for involuntary dismissal based on lack of standing at the inception of the action.  Borrower moved for fees, “arguing she prevailed in the action and the note and mortgage provided for attorney’s fees” and that she was entitled to fees under F.S. 57.105(7).  The court granted entitlement to fees and reserved jurisdiction to determine the amount.

          A year later Bank moved for reconsideration of the fee order, arguing that because Borrower prevailed on the lack of standing argument it was not entitled to fees.  The trial court denied the motion and awarded fees.  Bank appealed.

          The Fourth DCA reversed, relying on its precedent in Nationstar Mortgage LLC v. Glass, 219 So.3d 896 (Fla. 4th DCA 2017), review granted, SC17-1387, 2018 WL 2069328 (Fla. Feb. 13, 2018), and review dismissed as improvidently granted, 44 Fla. L. Weekly S148 (Fla. Apr. 18, 2019), reh'g stricken, SC17-1387, 2019 WL 1986842 (Fla. May 6, 2019).  The court stated that Borrower “prevailed due to the bank’s failure to prove standing at the inception of the foreclosure action even though it established standing at the time of trial.  The borrower cannot have it both ways.  If the borrower prevails on its ‘lack of standing’ defense, it cannot rely on the contract to obtain attorney’s fees.”

          The appeals court certified conflict with Madl v. Wells Fargo Bank, N.A., 244 So.3d 1134 (Fla. 5th DCA 2017) and Harris v. Bank of New York Mellon, 44 Fla. L. Weekly D141 (Fla. 2d DCA Dec. 28, 2018).  It noted that the Second and Fifth DCAs decided these cases “by relying upon the existence of a contract between the bank and the borrower notwithstanding the bank’s failure to prove standing in the foreclosure action.  We decline to go down that rabbit hole.”

          The Fourth DCA concluded by “stat[ing] our holding simply:  NO STANDING = NO ATTORNEY’S FEES.”  Deutsche Bank Trust Co. Americas v. Page, __ So.3d __ (Fla. 4th DCA, No. 4D13-816, 6/12/2019), 2019 WL 2439901.

          NOTE:  See also Nationstar Mortgage LLC v. Faramarz, __ So.3d __ (Fla. 4th DCA, No. 4D18-347, 6/26/2019), 2019 WL 2608452 (reaching same result and certifying conflict).

Fee award reversed based on exception to general rule that defendant is prevailing party fees when plaintiff voluntarily dismisses suit.  [Added 6/17/19]

          Valencia Golf and Country Club Homeowners’ Association (Valencia) had a dispute with the master homeowners’ association and another entity (Appellees) regarding irrigation and cable services provided to Valencia.  Valencia filed for declaratory relief, seeking interpretation of terms in covenants and service agreements.

          During discovery, Valencia obtained a copy of the cable services agreement that cleared up the cable service matters.  Later an agreement was entered into between the County and one of the Appellees that clarified the irrigation-related matters, providing “precisely the outcome Valencia sought in its claim for declaratory relief.”

          Valencia filed a notice of voluntary dismissal, noting that the matters in dispute had been settled.  Appellees moved for fees and costs, arguing that they were the prevailing parties.  Valencia responded that there was not statutory or contractual basis for a fee award, but assuming fees were available it should be considered the prevailing party.  The trial court awarded fees to Appellees.  Valencia appealed.

          The Second DCA reversed, noting that, although a defendant is generally the prevailing party when a plaintiff voluntarily dismisses an action, “this case falls under the exception, rather than the general rule.”  The court concluded that Valencia should not be penalized “with a substantial assessment of attorney’s fees for dismissing their claims where a continuation of the lawsuit ‘would have been a waste of judicial resources.’”  (Citation omitted.)  Valencia Golf and Country Club Homeowners’ Ass’n,Inc. v. Community Resource Services, Inc., __ So.3d __ (Fla. 2d DCA, No. 2D17-4986, 5/22/2019), 2019 WL 2195178.

Court erred in awarding fees under F.S. 736.1004 for time spent litigating entitlement to fees unsuccessfully on alternative ground.  [Added 6/14/19]

          Levine sued his sister Stimmel for alleged breach of fiduciary duty under the Florida Trust Code.  Judgment was entered for Stimmel, who then moved for an award of fees under F.S. 736.1004 (allowing fees in actions for breach of fiduciary duty) and separately under F.S. 57.015 (allowing fees for defending baseless claims).  The trial court granted fees under section 736.1004 but denied fees under section 57.015.  Because Stimmel’s fee request had included time spent litigating entitlement to fees under section 57.105, Levine “sought a reduction of approximately $16,000 for the work connected to the section 57.105 motion.  Ultimately, the trial court reduced [Stimmel’s] requested attorney's fee amount by approximately $20,000.  However, the trial court's rationale in reducing the award is unclear.”  Levine appealed.

          The Fifth DCA reversed in part and remanded for action or clarification.  Stimmel had the burden to demonstrate what portion of counsel’s work was spent on claims for which section 736.1004 authorized fees.  But “[b]ecause section 736.1004 does not expressly authorize recovery of attorney's fees for time spent litigating an alternative and unsuccessful ground for fees, [Stimmel] may not recover the hours for the time spent litigating the entitlement to fees for the unsuccessful section 57.105 motion.”

          The appeals court remanded.  “If the trial court has already reduced the award for the time spent litigating the unsuccessful section 57.105 motion, then it shall make that clear in its subsequent order.  Otherwise, the trial court shall remove the time spent litigating the unsuccessful section 57.105 motion in its award.”  Levine v. Stimmel, __ So.3d __ (Fla. 5th DCA, No. 5D17-2572, 5/17/2019), 2019 WL 2147611.


Court does not have inherent authority to award fees as sanction for bad faith conduct on own initiative after voluntary dismissal.  [Added 6/11/2019]

          Purported Heir sued Estate.  Estate served a section 57.105 motion for sanctions on Purported Heir and his lawyers (“Petitioners”).  The petition in question was not withdrawn within the safe harbor period.  A year later, Estate filed a motion for fees.  Shortly thereafter, Petitioners dismissed the case.

          After the dismissal, the trial court held a hearing on Estate’s sanctions motion.  It ultimately granted an order awarding sanctions under the court’s inherent authority “pursuant to the ‘inequitable conduct doctrine,’” determining that “party could not divest a court of its inherent power to sanction bad faith conduct by filing a voluntary dismissal.”  Petitioners sought a writ of prohibition or, alternatively, certiorari from the Fourth DCA.

          The appellate court granted the petition for a writ of prohibition.  “[W]e hold that a trial court’s inherent authority to award attorney’s fees as a sanction for bad faith conduct on its own initiative does not extend beyond a voluntary dismissal.  Although we have found no cases directly addressing this type of situation, we find persuasive other cases that have limited a court’s inherent authority after a voluntary dismissal.  See, e.g., Jabri, Inc. v. U Save Motors, Inc., 971 So.2d 912, 912–13 (Fla. 3d DCA 2007) (holding that the voluntary dismissal divested the trial court of the power to enter an order for the return of funds); Romar Int’l, Inc. v. Jim Rathman Chevrolet/Cadillac, Inc., 420 So.2d 346, 348 (Fla. 5th DCA 1982) (holding that the voluntary dismissal divested the trial court of its inherent jurisdiction to award expenses as a sanction).”   Almazan v. Estate of Aguilera-Valdez, __ So.3d __ (Fla. 4th DCA, No. 4D18-2487, 5/8/2019), 2019 WL 2018001.

Fourth DCA affirms order allocating fees to prevailing parties in “oldest active case in Palm Beach County.”  [Added 6/10/19]

          In what was described as the “oldest active case in Palm Beach County,” the Fourth DCA affirmed the trial court’s allocation of fees to the parties that prevailed on certain issues in the case.  The trial court’s order awarded $969,571 in fees from appellants Plaza La Mer and South Square Development, Inc., and $234,280 solely from Plaza La Mer.  Those parties appealed, arguing that the trial court abused its discretion because “the ‘entire litigation was actually two similar but mis-joined cases.’”

          The Fourth DCA rejected that contention and affirmed.  “Here, the appellants jointly prosecuted claims against the appellees.  They shared counsel and legal arguments. Since this case was filed in 1995, the case has proceeded jointly.  . . .  From the start, the appellants presented singular arguments and shared a legal strategy, witnesses, lawyers, motions, and briefs.  This case did not involve distinct parties presenting separate and distinct claims for damages.  This involved two parties acting as one, making it nearly impossible to apportion fees absent arbitrarily assigning each half the burden.”  Plaza La Mer, Inc. v. Delray Property Investments, Inc., __ So.3d __ (Fla. 4th DCA Nos. 4D-16-2462, 4D18-1068, 4D18-1099, 5/8/2019), 2019 WL 2020578.

Fourth DCA holds post-offer prejudgment interest may not be included in calculating threshold for fee award under offer of judgment statute, but certifies question to Supreme Court.  [Added 5/30/19]

          Plaintiff CCM sued defendant Petri for negligence and breach of contract.  CCM served an offer of judgment pursuant to F.S. 768.79, which Petri rejected.  CCM prevailed on the breach of contract claim.  When post-offer prejudgment was included, the total judgment entered exceeded the statutory threshold needed to trigger a fee award to CCM based on the rejected offer.  Without the post-offer prejudgment interest, however, the threshold amount was not met.

          CCM filed a motion for fees, which the trial court granted.  Petri appealed, arguing that “the supreme court has already decided this issue in its favor, and post-offer interest must be excluded in calculating the amount recovered by the plaintiff.”  The Fourth DCA somewhat reluctantly agreed and reversed.  “Were we writing on a clean slate, we would interpret the statute as written and include post-offer prejudgment interest.  But as the supreme court opinions appear to exclude post-offer prejudgment interest in the judgment obtained, we are bound to follow the supreme court.  Therefore, we reverse, but certify conflict with a district court of appeal opinion and also certify a question of great public importance.”  The certified question was:  “For purposes of calculating whether a plaintiff has met the threshold amount of difference between an offer of judgment and the judgment entered for purposes of section 768.79, Florida Statutes, must post-offer prejudgment interest be excluded from the amount of the ‘judgment obtained’?”  Petri Positive Pest Control, Inc. v. CCM Condominium Ass’n, Inc., __ So.3d __ (Fla. 4th DCA, No. 4D18-1290, 5/1/2019), 2019 WL 1926276.

Judge of compensation claims did not err in allocating fees between original and successor counsel on quantum meruit basis and not considering contractual agreement between lawyers.  [Added 5/22/19]

          A workers compensation claimant was represented by First Law Firm on a contingent fee agreement.  Lawyer, the partner handling the case, left to join Second Law Firm.  The client followed Lawyer and signed a contingent fee agreement with Second Firm.  When the case settled, the two firms could not agree on how the fee would be allocated between them.

          First Firm filed a charging lien seeking 91% of the fee because Lawyer had held a 9% equity ownership share in First Firm when the case was brought in.  In the alternative, First Firm claimed 50% of the fee if the judge of compensation claims (JCC) allocated the fee based on quantum meruit.  In contrast, Second Firm and Lawyer argued that that there was no agreement between her and First Firm about how to divide the fee in this particular case and urged that the JCC allocate the fee only based on quantum meruit.

          The JCC decided that it was not necessary to consider the contractual agreement between First Firm and Lawyer and ruled that quantum meruit was the proper basis for allocating the fee.  The JCC awarded 90% of the fee to Second Firm and 10% to First Firm.  First Firm appealed.

          The First DCA affirmed.  A JCC has jurisdiction to resolve a fee dispute between a prior and successor law firm on a quantum meruit basis.  “But where a former attorney or law firm and a successor attorney or law firm have entered into an employment agreement or formed a partnership or other legal relationship and the dispute involves claims for attorney’s fees arising from those contractual arrangements, only circuit courts have jurisdiction to resolve the dispute.”  (Citations omitted.)  Accordingly, the appeals court concluded that the JCC acted within its jurisdictional authority to resolve the fee dispute between the firms by allocating the fee on a quantum meruit basis.  The court further noted that “[i]f [First Firm] claims entitlement to any of the fees awarded by the JCC to [Lawyer] and her new firm that derive from the equity partnership agreement, those claims are within the exclusive subject matter of the circuit court.”  Telfer, Faherty & Anderson, P.L.L.C. v. Caplick, __ So.3d __ (Fla. 1st DCA, No. 1D18-1982, 5/16/2019), 2019 WL 2127878.

Court erred by including fee provision in final judgment that failed to account forparties’ need and ability to pay as required in F.S. 61.16.  [Added 5/10/19]

          The trial court entered a final judgment of dissolution of marriage.  The judgment ordered each party to pay its own fees “incurred in this initial proceeding,” but went on to provide that “in the event either party seeks enforcement of this Final Judgment or Parenting Plan for the other party’s failure to comply, the defaulting party shall be liable to the non-defaulting party for all fees and costs incurred as a result of the default and enforcement of same.”

          Husband appealed.  The Fourth DCA reversed.  F.S. 61.16, which governs the award of fees in postdissolution enforcement proceedings, requires inquiry into the parties’ need and ability to pay.  “[B]ecause the final judgment contained a fee provision for future enforcement actions which failed to account for the parties’ need and ability to pay, we reverse and remand to the trial court for correction of the enforcement fee provision within the final judgment.”  Du Perault v. Du Perault, __ So.3d __ (Fla. 4th DCA, No. 4D18-1226, 5/1/2019), 2019 WL 1925312.

Availability of reciprocal fees under F.S. 57.105(7) is determined by cause of action asserted in complaint, not by disposition of case.  [Added 5/8/19]

          Residents sued Developer of a residential community seeking, inter alia, a declaratory judgment that Developer breached the governing document setting forth covenants, restrictions and conditions (the “Declaration”).  Developer filed a motion to dismiss, but Residents voluntarily dismissed the suit before Developer answered.

          Developer moved for fees pursuant to the provisions in the Declaration and F.S. 57.105(7).  The trial court denied the motion, ruling that Developer “did not bring an action to prevent, remedy, or recover damages by a party ‘violating or attempting to violate’ the Declaration; there was no finding of a violation of the Declaration; and there was no order adjudicating the case on the merits.”  Developer appealed.

          The Fifth DCA reversed.  Residents argued that a breach of the Declaration was required to trigger entitlement to fees and that no breach occurred.  The appeals court disagreed, concluding that Residents “brought an action as described in the Declaration.  The attorney’s fees provisions in the Declaration applied to lawsuits for violations of the Declaration or to enjoin or enforce duties therein.  Accordingly, [Residents’] lawsuit – seeking a declaratory judgment that [Developer] breached the Declaration – fell within the scope of both attorney’s fees provisions.”

          Further, the court pointed out that the availability of fees under 47.105(7) is determined by the cause of action asserted in the complaint, not by the disposition of the case.  “Limiting a party’s entitlement to attorney’s fees on the outcome of a dispute rather than the cause of action asserted in the pleadings is contrary to the purpose of section 57.105(7).  To hold otherwise would enable a drafting party to construct attorney’s fees provisions around the ambit of section 57.105(7), resulting in an uneven playing field and thereby defeating the protection afforded by the statute.”  CalAtlantic Group, Inc. v. Dau, __ So.3d __ (Fla. 5th DCA, No. 5D18-1281, 4/18/2019), 2019 WL 1715536.

Receding from its prior decision, Second DCA rules that fees may not be awarded under state fee-shifting statute in admiralty case.  [Added 5/6/19]

          Plaintiff sued Defendant over damage to her boat that she claimed resulted from Defendant’s negligent design and/or installation of the boatlift that it installed.  Federal maritime law governed.  Defendant did not accept proposals for settlement made by Plaintiff pursuant to F.S. 768.79.  After a favorable jury verdict, Plaintiff moved for fees based on the proposals.  Defendant objected, arguing that “fees should be denied because federal maritime law applies and it follows the American Rule which requires each party to pay its own attorneys' fees.”  Relying on a prior Second DCA case (Juneau TankerCorp. v. Sims, 627 So.2d 1230 (Fla. 2d DCA 1993)), the trial court granted Plaintiff’s motion for fees.  Defendant appealed.

          The Second DCA reversed.  The court concluded that Juneau Tanker conflicted with federal maritime law regarding fees.  The court also observed that the Third DCA (Royal Caribbean Cruises, Ltd. v. Cox, 137 So.3d 1157 (Fla. 3d DCA 2014)) and Fifth DCA (Nicoll v. Magical Cruise Co., 110 So.3d 98 (Fla. 5th DCA 2013)) have concluded that F.S. 768.79 fees may not be recovered in maritime cases.  “Consequently, we align ourselves with the federal and other Florida appellate courts that hold that absent certain exceptions, a state fee-shifting statute – such as section 768.79 – may not be applied where it conflicts with federal maritime law.  For these reasons, we hereby recede from Juneau and reverse the award of attorneys’ fees to [Plaintiff].”  Marco Marine Construction, Inc. v. Kopras, __ So.3d __ (Fla. 2d DCA, No. 2D17-1734, 4/17/2019), 2019 WL 1646006.

Proposal for settlement not ambiguous because it addressed only one party’s claim in case where offeree’s case was consolidated with separate case arising from same incident only for purposes of discovery and trial.  [Added 5/1/19]

          Maulden and Holzberg filed separate suits against Defendant for damages arising from the same auto accident.  The trial court granted Defendant’s motion to consolidate the cases for purposes of discovery and trial.  Maulden moved for reconsideration of the consolidation.  While her motion for reconsideration was pending, Defendant served separate proposals for settlement on Maulden and Holzberg.  Defendant sent the proposal to Maulden “under the specific case caption and case number associated with her case without any reference to Holzberg’s case.”  Maulden did not accept the proposal.

          Maulden’s case was tried, with the result that the amount awarded to was sufficiently less than the offer and thus triggered Defendant’s entitlement to fees under F.S. 768.79.  The trial court, however, denied Defendant’s motion for fees.

          Defendant appealed.  Maulden responded by arguing that the proposal “failed to apportion the total amount between her and Holzberg, thus leaving her reasonably uncertain whether her acceptance would extinguish Holzberg’s claims in light of the consolidation.”  Consequently, Maulden asserted that the proposal was a “statutorily ambiguous ‘joint offer’ that failed to apportion the damages amount among the offerees” and so was invalid.

          The Fourth DCA disagreed and reversed.  “Maulden’s argument fails because the trial court consolidated the cases for two specific purposes:  discovery and trial.  Her claims did not merge with Holzberg’s claims under the consolidation orders because ‘[w]here cases are consolidated for discovery and trial, they do not lose their individual identities as distinct, separately filed actions.’”  (Citations omitted.)  Weiner v. Maulden, __ So.3d __ (Fla. 4th DCA, No. 4D18-2170, 4/10/2019), 2019 WL 1549319.

Order imposing charging lien reversed due to lawyer’s failure to give timely notice of claimed lien and court’s failure to hold evidentiary hearing.  [Added 4/26/19]

          Attorney initially represented Client, the plaintiff in a commercial mortgage foreclosure suit.  Client was granted a pretrial order requiring the defendant borrower to make payments during the pendency of the foreclosure.  Attorney successfully represented Client in an appeal of that order.  On remand Client was awarded fees and costs of $29,459 for appellate representation.

          Attorney subsequently moved to withdraw, but “[n]either the motion to withdraw nor the order granting it disclosed any claim for unpaid fees or for a lien.”  Successor counsel later obtained a final judgment of foreclosure for Client.  A week after that, Lawyer filed and served a notice of filing and asserting a charging lien on all judgments in the case, and on any funds due from defendants on those judgments as well as “any and all assets, property, money, proceeds retained, receive, or recovered by [the Client] or any of his assigns in connection with this matter.”  Attorney attached a copy of interrogatory answers executed prior to his withdrawal in which Client stated that he had not paid Attorney the fees and costs from the appeal, and that there was no written retainer or fee agreement between Attorney and Client.

          The court held a hearing on Attorney’s motion for charging lien.  The court “marked up” a proposed order submitted by Attorney; the order did not grant or deny the motion, but only “recognize[d]” that the motion had been filed.  Seven months later Attorney filed an emergency motion for imposition of a charging lien.  After a non-evidentiary hearing, the trial court granted the motion (apparently believing that it had granted a lien previously).  Client appealed.

          The Third DCA reversed, for 2 reasons.  First, the notice of lien was not timely.  It was not filed until after the final judgment had been entered.  “The Attorney’s ‘notice’ was too late to permit the parties and the trial court to consider and determine it before the entry of the final judgment.  We cannot speculate what adjustments, if any, might have been made to the sums claimed by the Client in the final judgment had the Attorney filed the claim of charging lien before the final judgment was considered and entered by the trial court.”

          Second, the trial court failed to hold an evidentiary hearing before imposing a charging lien.  “There is no written agreement between the Attorney and Client regarding the fees to be charged, the terms and timing of payment, or any specific funding source.  There was no admissible evidence that there was any ‘express or implied understanding for payment of attorney's fees out of the recovery.’”  (In a footnote, the appeals court stated:  “In this case, as in other reported and unreported disputes between lawyers and clients, there is a teaching point that lawyers should heed their own usual advice to ‘get it in writing.’”)   Benitez v. Eddy Leal, P.A., __ So.3d __ (Fla. 3d DCA, No. 3D18-771, 4/10/2019), 2019 WL 1548886.

Supreme Court withdraws prior opinion (ruling that prevailing party fees are recoverable under the reciprocal provisions of F.S. 57.105 by borrower who succeeded in having plaintiff’s mortgage foreclosure suit dismissed on grounds including lack of standing), concluding that it had improvidently granted review.  [Added 4/18/19]

          Nationstar sued Glass to foreclose on a reverse mortgage.  After motions and complaint amendments, ultimately the trial court granted Glass’s motion to dismiss.  Glass had alleged several grounds for her motion, and the order granting dismissal “did not provide any reasoning for its decision.”  Glass’s motion for prevailing party fees under F.S. 57.105 was denied.  Nationstar appealed, but subsequently voluntarily dismissed the appeal.  Glass sought appellate fees, but the Fourth DCA denied that motion “based not on the voluntary dismissal on appeal but instead on the ancillary issue of [Glass’s] successful dismissal of the complaint at trial.”  See Nationstar Mortgage LLC v. Glass, 219 So.3d 896 (Fla. 4th DCA 2017).

          Glass sought Supreme Court review alleging direct conflict with Bank of New York v. Williams, 979 So.2d 347 (Fla 1st DCA 2008), “on the question of whether a voluntary dismissal provides a basis for being considered the prevailing party for the purpose of appellate attorney fees.”  Exercising its conflict jurisdiction, on January 4, 2019, the Court issued an opinion quashing the Fourth DCA’s Glass decision.

          Nationstar filed a Motion to Recall Mandate.  The Court granted the motion and withdrew its original opinion.  The Court explained:  "We initially accepted review of the decision of the Fourth District Court of Appeal in Nationstar Mortgage LLC v. Glass, 219 So.3d 896 (Fla. 4th DCA 2017), based on express and direct conflict with the decision of the First District Court of Appeal in Bank of New York v. Williams, 979 So.2d 347 (Fla. 1st DCA 2008).  Upon further consideration, we conclude that jurisdiction was improvidently granted.  Accordingly, we hereby discharge jurisdiction and dismiss this review proceeding.”

          One justice dissented.  Glass v. Nationstar Mortgage, LLC, __ So.3d __ (Fla., No. SC17-1387, 4/18/2019), 2019 WL ______.

Court erred in awarding prevailing party fees to foreclosure defendant who prevailed only on “insignificant” count in case.  [Added 4/14/19]

          Bank filed a 2-count complaint against Defendant, seeking foreclosure of property due to mortgage non-payment and reformation of a potentially incorrect legal description in the mortgage.  Bank abandoned the reformation count at trial, but obtained a judgment of foreclosure.  Defendant successfully moved for clarification so that the judgment would specify that the court found in favor of Defendant on the reformation count.  Defendant moved for prevailing party fees under F.S. 57.105(7), also arguing that the 2 counts were inextricably intertwined so that he should be awarded fees for defending both counts.  The trial court agreed and granted the motion.  Bank appealed.

          The Fourth DCA reversed, noting 2 reasons.  First, the relevant portion of the mortgage document provided that the lender “shall be entitled to collect all expenses incurred in pursuing the remedies provided in Section 22” of the mortgage (emphasis by court).  Section 22 did not list reformation as a remedy.

          The court further concluded that Defendant was not the prevailing party.  In order to obtain a prevailing party fee award, the party must prevail on a significant issue in the litigation.  The reformation count was not a significant issue.  “The fact that the Bank was able to obtain a final judgment of foreclosure without having to reform the legal description of the property shows that the reformation count was insignificant . . .”  Deutsche Bank v. Quintela, 268So.3d 156 (Fla. 4th DCA 2019).

          See also Household Finance Corp. III v. Williams, __ So.3d __ (Fla. 4th DCA, No. 4D18-1570, 2/19/2020), 2020 WL ______ (lender's reformation claim completely outside terms of the contract and cannot be inextricably intertwined with foreclosure count, so trial court abused discretion in awarding borrower all fees including those attributed to foreclosure claim).

Court’s erroneous award of fees based on answers to requests for admissions would turn Fla.R.Civ.P. 1.380(c) into prevailing party fee provision.  [Added 4/4/19]

          Plaintiff sued Defendant for injuries arising from an auto accident.  Testimony of the parties was “directly conflicting regarding who was at fault.”  Prior to trial Plaintiff sent requests for admissions asking Defendant to admit things to the effect that Defendant “did so negligently and carelessly maintain, operate and control the motor vehicle so that it collided with the vehicle operated by” Plaintiff.  Such admissions were contrary to Defendant’s position in the case and her trial testimony, so “[n]ot surprisingly” she denied the requests.

          After a verdict for Plaintiff the court awarded fees to Plaintiff under Fla.R.Civ.P. 1.380(c), which authorizes an award against a party that fails to admit the truth of a request for admission made pursuant to Florida Rule of Civil Procedure 1.370.  Defendant appealed.

          The Fifth DCA reversed.  The purpose of requests for admissions is to “define and limit the issues in controversy.”  There is an important distinction between requests for admissions relating to relevant factual matters and requests seeking an admission to the ultimate issue in the case.  The requests in this case “went to the ultimate issues in the case rather than relevant facts.”  The appeals court observed that, “[i]n our view, awarding attorney’s fees under these circumstances would render rule 1.380(c) a prevailing party fee provision rather than an exception to the rule that the individual parties bear their own fees.”  Sentz v. Tracy, __ So.3d __ (Fla. 5th DCA, No. 5D18-964, 3/29/2019), 2019 WL 1412412.

Loss of consortium claim “inextricably intertwined” with spouse’s injury claim, supporting award of fees for both claims following rejected proposal for settlement on consortium claim.  [Added 3/29/19]

          Following Husband’s injury in an auto accident, Husband sued Defendant for his injuries and Wife sued for loss of consortium.  Husband served Defendant with a proposal for settlement for his claim, and Defendant served Wife with a proposal for settlement on her consortium claim.  Neither proposal was accepted.  The jury determined that Husband did not sustain a permanent injury and thus Wife was awarded no damages for loss of consortium.

          Defendant moved for fees for defending both claims.  She contended that Husband’s injury claim was inextricably intertwined with Wife’s consortium claim.  The trial court “found that the claims were not inextricably intertwined because the loss-of-consortium claim is derivative” and denied the motion.  Defendant appealed.

          The Fifth DCA reversed and remanded.  Claims are inextricably intertwined with each other when a determination of the issues in one action is necessarily dispositive of the issues in the other.  While the derivative nature of a consortium claim “supports the conclusion” that Husband’s and Wife’s claims were intertwined, the appeals court acknowledged that a “blanket rule” finding that a consortium claim and its related claim are always inextricably intertwined “is unwise.”  The court distinguished cases cited by Husband and Wife, noting that in contrast to those cases Defendant “presented both legal argument and expert testimony that established that the claims in this case were inextricably intertwined because she challenged the permanency of [Husband’s] injury to successfully defeat [Wife’s] loss-of-consortium claim.  [Citations omitted.]  Thus, the lower court erred when it concluded that the claims were not inextricably intertwined.”  Conti v. Auchter, _ So.3d __ (Fla. 5th DCA, No. 5D16-696, 3/15/2019), 2019 WL 1212357.

Insurance companies did not impair law firm’s charging lien by paying settlement proceeds to client’s new counsel, who agreed to hold disputed funds in trust.  [Added 3/25/19]

          Law Office ceased representation of Client.  Law Office perfected its charging lien for fees allegedly owed by Client.  Client retained New Counsel.  Insurers then paid settlement proceeds to Client and the New Counsel.  New Counsel agreed to place the disputed funds in its trust account, and did so.

          Law Office contended that Insurers had impaired its charging lien in making the payment.  Insurers motion for summary judgment was granted.  Law Office appealed.

          The Fifth DCA affirmed, agreeing with the trial court that Law Office’s charging lien had not been impaired.  The disputed funds were still being held in trust.  “Because the funds are in trust,Law Office’s lien has not been impaired.  However, should that situation change in the future, the Insurers cannot avoid liability for the attorney’s fees subject to Law Office’s lien simply because it transferred the funds to a third party.”  Law Offices of Michael B. Brehne, P.A. v. Porter Law Firm, LLC, __ So.3d __ (Fla. 5th DCA, Nos. 5D17-3850, 5D17-3855, 3/15/2019), 2019 WL 1212362.

Court erred in treating attorney’s fee provision in marital settlement agreement as waiver of right to seek fees in future enforcement actions.  [Added 3/19/19]

          Divorcing Husband and Wife entered into a marital settlement agreement (the “MSA”).  The MSA provided in part:  “Each party shall be responsible for their respective attorney’s fees, if any are incurred.”

          Wife subsequently moved for enforcement of the MSA, claiming that Husband failed to provide certain documents.  Wife also requested fees.  The trial court granted the motion to enforce but questioned whether Wife had waived her right to fees based on the fee provision in the MSA.  Ultimately the court denied fees to Wife.  Wife appealed.

          The Fourth DCA reversed.  Florida courts have concluded that the right to fees is not waived unless an attorney’s fee provision in a marital settlement agreement contains specific language waiving attorney’s fees in future enforcement or modification proceedings.  (Citations omitted.)  The MSA in the instant case, however, “does not address, let alone address with specificity, the issue of attorney’s fees in future enforcement proceedings.”  Because there was “no specific language in the MSA reflecting an intent by either party to waive the right to seek attorney’s fees in future enforcement proceedings,” the trial court erred in denying Wife’s request for fees.  Laux v. Laux, __ So.3d __ (Fla. 4th DCA, No. 4D18-1172, 3/6/2019), 2019 WL 1053814.

Court’s denial of fees for litigating amount and reasonableness of fees is upheld based on language in parties’ contract.  [Added 3/15/19]

          Condominium Association prevailed in litigation with some unit owners.  The parties stipulated to Association’s entitlement to fees.  Association sought an award for fees incurred in litigating the amount and reasonableness of fees.  The trial court denied Association’s request.  Association appealed.

          The First DCA affirmed the denial of the requested fees.  The operative language in the parties’ contract provided that the unit owners were “responsible for condominium assessments and the ‘costs of collection thereof, including Legal Fees.’”  The appeals court concluded that the “litigation over the amount of reasonable attorney’s fees did not constitute litigation the collection of condominium assessments.”

          The court contrasted the language in the parties’ contract with the broader language at issue in Waverly at Las Olas Condominium Ass’n, Inc. v. Waverly Las Olas, LLC, 88 So.3d 386, 388 (Fla. 4th DCA 2012) (court did not err in awarding fees-for-fees under contract broadly written to allow prevailing party to recover fees for “any litigation between the parties under this Agreement”) (emphasis by Fourth DCA).  The First DCA concluded:  “Although we do not reject the argument that a contract can provide for an award of attorney’s fees, including fees incurred for litigating the fee amount itself, we hold that the trial court did not err in denying Appellant such an award.”  Windsor Falls Condominium Ass’n, Inc. v. Davis, __ So.3d __ (Fla. 1st DCA, No. 1D17-5355, 2/28/2019), 2019 WL 961446.

Trial court abused discretion in treating Fla.R.Civ.P. 1.380(a)(4) as prevailing party rule and awarding fees against non-moving party’s counsel.  [Added 3/11/19]

          The trial court ordered Defendants; counsel to pay Plaintiff’s attorney’s fees under Fla.R.Civ.P. 1.380(a)(4) as part of an order on Plaintiff’s Motion to Compel Better Answers to Interrogatories and Motion to Compel Designation of Corporate Representative.”  The court had overruled Defendants’ objections to the motions.  Defense counsel appealed.

          The Fourth DCA reversed.  “The circuit court, both at the hearing on the plaintiff’s motion to compel, and in the order resulting from the hearing, incorrectly referred to rule 1.380(a)(4) as a “prevailing party” rule, even though rule 1.380(a)(4) uses no such phrase.”  The rule states that a court “shall” award fees when the moving party prevails on a motion to compel, but goes on to provide exceptions:  “unless the court finds that the movant failed to certify in the motion that a good faith effort was made to obtain the discovery without court action, that the opposition to the motion was substantially justified, or that other circumstances make an award of expenses unjust.”

          The trial court abused its discretion in essentially ignoring the “unless” clause of the rule.  The court’s written order “made no finding regarding whether the defendants’ opposition to the motion was substantially justified.”  Further,  Rather, “[e]ven if we were to assume that the circuit court implicitly considered the first sentence’s second clause and found that the defendants’ opposition to the motion was not substantially justified, the record belies such a finding.  As the circuit court itself stated at the hearing, ‘Some of the objections were well-founded, but some weren’t.’  That finding is reflected in the written order . . .”  Federal Express Corp. v. Sims, __ So.3d __ (Fla. 4th DCA, No. 4D18-1154, 2/20/2019), 2019 WL 719159.

Reversing trial court, First DCA holds that prevailing lessor was entitled to fees under both lease and offer of judgment statute, F.S. 768.79.  [Added 3/8/19]

          Lessor sued 3 Lessees alleging breach of a real property lease agreement.  Lessor served proposals for settlement on each of the defendants pursuant to F.S. 768.79 and Fla.R.Civ.P. 1.442.  The terms of the proposals were identical (except for the name of the offeree) and offered to settle the action for $25,000.  Each defendant rejected the offer.  At trial Lessor was awarded a judgment for $83,657.60.  Lessor moved for fees under both the lease and F.S. 768.79.  The trial court ruled that Lessor was entitled to fees under the lease agreement but not under the statute.  The court “surmised it was unable to determine from the wording of the settlement proposal whether the judgment was 25% over the settlement offer; specifically, whether the three settlement offers of $25,000.00 each should be aggregated for the purpose of comparison to the amount awarded.  The trial court further concluded that regardless of whether the offer of settlement should be aggregated, [Lessor] was not entitled to attorney’s fees per statute, as the terms of the lease ‘controlled.’”

          Lessor appealed, asserting that “the terms in the lease agreement do not bar recovery of attorney’s fees under 768.79, and the offers of settlement should not be aggregated for the purpose of determining entitlement under the statute.”  The First DCA reversed.

          The language in the lease contract did not waive attorney’s fees that might be available under the statute.  “[B]ecause section 768.79 imposes a penalty, the fact that an attorney’s fee award is mandatory under the statute if all requirements are met, and this Court’s ruling in Tierra Holdings, [Ltd. v. Mercantile Bank, 78 So.3d 558 (Fla. 1st DCA 2011),] we find a party may be awarded fees pursuant to terms in a contract and section 768.79 simultaneously.”

          The trial court’s conclusion that the proposals were ambiguous because it could not determine whether they should be aggregated before being compared to the amount of the judgment was also erroneous.  “This question was settled”  in Anderson v. Hilton Hotels Corporation, 202 So.3d 846 (Fla. 2016), where the Supreme Court “determined that aggregating offers of settlement for the purpose of determining entitlement to attorney’s fees ‘cannot be tolerated under a strict construction of section 768.79.’”  In the instant case, it was undisputed that Lessor obtained a judgment 25% greater than any of the $25,000.00 offers of settlement.  Cassedy v. Wood, __ So.3d __ (Fla. 1st DCA, No. 1D17-2496, 2/11/2019), 2019 WL 512472.

Mortgage holder that dismissed foreclosure complaint before issue of its standing was litigated may have prevailing party fees awarded against it.  [Added 2/28/19]

          Bank filed a foreclosure action against Homeowner, alleging that it was the holder of the note and mortgage and that it was entitled to attorney’s fees.  Homeowner defended by alleging that Bank lacked standing to enforce the mortgage and requested fees.  Bank voluntarily dismissed the suit without prejudice.  Homeowner moved for prevailing party fees.  Bank argued that Homeowner’s lack of standing defense precluded him from recovering fees.  The trial court denied the fee motion, ruling that Homeowner failed to prove that he and Bank were parties to the contract.

          The Fourth DCA reversed, citing to Glass v. Nationstar Mortgage, LLC, 2019 WL 98152 (Fla., Jan. 4, 2019), Rodriguez v. Wilmington Savings Fund Society, FSB as Trustee for Stanwich Mortgage Loan Trust A, 2018 WL 6528491 (Fla. 4th DCA, Dec. 12, 2018), and Wells Fargo Bank, N.A. v. Elkind, 254 So. 3d 1153 (Fla. 4th DCA 2018).  “In this case, [Bank] voluntarily dismissed its complaint, thus rendering the homeowner the prevailing party for purposes of attorney’s fees.  Notably, the trial court never made a judicial determination that [Bank] or the homeowner was not a party to the contract.  Additionally, [Bank] maintained in its complaint a right to enforce the contract.  Significantly, the copy of the note attached to the complaint contained a specific endorsement by the original lender to [Bank] and listed the homeowner as the borrower.  This should be sufficient record evidence to demonstrate that [Bank] and the homeowner were parties to the underlying contract so as to justify attorney’s fees pursuant to section 57.105(7).”  Grosso v. HSBC Bank, N.A., __ So.3d __ (Fla. 4th DCA, No. 4D17-2874, 5/8/2019) (on rehearing), 2019 WL 2020601.

Prevailing party fees awarded to defendant borrowers after alleged mortgage holder voluntarily dismissed foreclosure complaint.  [Added 2/25/19]

          JP Morgan Mortgage Acquisition Corporation (“the bank”) sued Borrowers to foreclose on a mortgage, alleging that it was entitled to enforce the note as the holder because it had physical possession of the note endorsed in blank and that it was entitled to attorney’s fees under the note and mortgage.  Borrowers answered, raising standing as an affirmative defense and asserting entitlement to fees.  The bank voluntarily dismissed the case without prejudice.

          Borrowers moved for fees under the mortgage and F.S. 57.105(7).  The bank opposed the motion, arguing that Borrowers were not entitled to fees because they denied the bank was a party to the contract.  The trial court denied Borrowers’ motion for fees.  Borrowers appealed.

          The Fourth DCA reversed, citing Wells Fargo Bank, N.A. v. Elkind, 254 So. 3d 1153 (Fla. 4th DCA 2018).  “In the instant case, the bank voluntarily dismissed its case and the bank alleged in its complaint that it was entitled to enforce the note and mortgage.  Significantly, there was never a judicial determination by the trial court that the bank or [Borrowers] were not a party to the contract.  Based on the foregoing authority, [Borrowers] were entitled to attorney’s fees.”  Venezia v. JP Morgan Mortgage Acquisition Corp., __ So.3d __ (Fla. 4th DCA, No. 4D18-1278, 5/22/2019) (on rehearing), 2019 WL 2203230.

Fourth DCA rules that F.S. 57.105(1) fee motion can be brought solely against lawyer and that motion can properly seek award where single cause of action asserts more than one factual scenario for liability, and fee motion attacks only one of those factual scenarios as unsupported by law.  [Added 2/18/19]

          Bailynson, represented by lawyer Cohen, filed suit against owners of 4 residential units in a condominium (“Appellants”) after Appellants had sought an injunction against the condo association and its board based on the association’s business dealings with Bailynson.  Appellants sent a safe harbor notice to Cohen pursuant to F.S. 57.105(1), seeking fees from Cohen but not Bailynson under F.S. 57.105(1)(b) and (3)(c).  The trial court denied the motion, essentially ruling that:  (1) a 57.105(1) fee motion cannot be brought solely against an attorney; and (2) the breach of fiduciary duty count that was the target of the motion was not devoid of merit.

          The Fourth DCA reversed on both grounds.  First, the court concluded that, under the appropriate circumstances, a 57.105(1) motion for fees may be brought solely against a party’s lawyer and not the lawyer’s client.  The court explained the interplay between sections of the statute:  “Although section 57.105(1) states that the award of fees must be awarded ‘in equal amount by the losing party and the losing party’s attorney,’ this is limited by section 57.105(3)(c).  Section 57.105(3)(c) clearly states that attorney’s fees cannot be levied upon a party, where the basis for attorney’s fees pursuant to section 57.105 is subsection (1)(b) and the claim or defense is not supported by the application of then-existing law to the material facts.”  (Emphasis by court.)

          The trial court’s second reason was also rejected by the appeals court.  “We agree with Appellants that if an action asserts a theory of liability using more than one, but separate, factual scenarios in support of the theory, and one of the factual scenarios meets the criteria for a 57.105(1) fee sanction because it is not supported by law, the sanction must be ordered.”

          The court summarized:  “[W]e conclude the trial court erred by ignoring the application of section 57.105(3)(c) to section 57.105(1)(b).  We hold that under proper circumstances, section 57.105(3)(c) permits the filing of a section 57.105(1)(b) fee motion solely against an attorney, and not the client.  We further hold that under the current version of section 57.105(1), if an action asserts separate factual scenarios for liability and one of the scenarios meets the criteria for a 57.105(1) fee sanction because it is not supported by law, the sanction must be ordered.”  Davis v. Bailynson, __ So.3d __ (Fla. 4th DCA, No. 4D18-1040, 1/30/2019), 2019 WL 384554.

Court properly denied fees to wife in a dissolution case where her fees were paid by family members and there was no evidence that wife had an obligation to repay them.  [Added 2/15/19]

          In a dissolution case Wife sought an award of attorney’s fees.  The court denied her request, “finding ‘it is not appropriate to order the Husband to pay the Wife’s attorney’s fees that have already been paid by her family due to the lack of proof that she needs to repay them.’” 

          Wife appealed, and the First DCA affirmed.  Under F.S. 61.16, the primary considerations for a fee award are the party’s need and the other party’s ability to pay.  Here, the trial court’s finding of lack of need was supported by competent, substantial evidence.  “The wife did not need assistance from her former husband to secure quality counsel.”  Sarazin v. Sarazin, __ So.3d __ (Fla. 1st DCA, No. 1D17-5237, 2/5/2019), 2019 WL 436606.

Supreme Court resolves conflict and decides that proposals for settlement made under F.S. 768.79 need not comply with email service provisions of Fla.R.Jud.Admin. 2.516.  [Added 2/11/19]

          Plaintiff sued Defendant for unlawful detainer.  Defendant served a proposal for settlement on Plaintiff by email.  Plaintiff did not accept the proposal.  After the trial court granted Defendant’s motion for summary judgment, Defendant moved for fees pursuant to the unaccepted proposal for settlement.  The trial court denied the motion, ruling that the proposal did not strictly comply with the requirements of rule 2.516.

          On appeal, the Third DCA affirmed.  The court relied on subdivision (b) of rule 2.516, which states in 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.)  Reasoning that Defendant’s proposal for settlement was “permitted to be served,” the Third DCA concluded that email service in compliance with rule 2.516 was required.  Wheaton v. Wheaton, 217 So.3d 125 (Fla. 3d DCA 2017).

          Defendant’s moved for rehearing on the ground that the Third DCA’s decision was inconsistent with Kuhajada v. Borden Dairy Co. of Alabama, LLC, 202 So.3d 391 (Fla. 2016), which was published after briefing was finished in Wheaton.  The rehearing motion was denied.

          Defendant then petitioned for Supreme Court review, asserting that the Third DCA’s decision expressly and directly conflicted with Boatright v. Phillip Morris USA, Inc., 218 So.3d 962 (Fla. 2d DCA 2017), McCoy v. R.J. Reynolds Tobacco Co., 229 So.3d 827 (Fla. 4th DCA 2017), and Oldcastle Southern Group, Inc. v. Railworks Track Systems, Inc., 235 So.3d 993 (Fla. 1st DCA 2017).  Exercising its conflict jurisdiction, the Supreme Court quashed the Third DCA’s decision.

          The Court pointed out that both F.S. 768.79 and Fla.R.Civ.P. 1.442 state that a proposal for settlement shall be served on the party to whom it is made, but not filed unless filing is necessary to enforce the statute and rule.  Service by email is not required by the plain language of either the statute or the rule.  Rule 1.442 does required that a proposal for settlement “include a certificate of service in the form required by [Fla.R.Civ.P.] 1.080.”  Rule 1.080, however, does not specify the form of the certificate of service:  “(a) Every pleading subsequent to the initial pleading, all orders, and every other document filed in the action must be served in conformity with the requirements of [Fla. R.Jud.Admin.] 2.516.”  (Emphasis by court.)  The Court concluded that rule 1.080(a) “does not apply to proposals for settlement because a settlement offer is neither a pleading subsequent to the initial pleading, an order, or a document filed with the court.  Accordingly, based on rule 1.080’s plain language, rule 2.516 would not apply to proposals for settlement made pursuant to section 768.79 and rule 1.442.”

          The Court went on to comment that “even the plain language of rule 2.516” did not support the conclusion reached by the Third DCA.  “[A] proposal for settlement is a document that must be served on the party to whom it is made but must not be filed with the court.  By its plain language, a proposal for settlement is not a required document as contemplated by rule 2.516.  Accordingly, the Third District erred in finding that a proposal for settlement is subject to the requirements of rule 2.516.”

          Additionally, the Court observed that, even if rule 2.516 did apply, Defendant’s failure to comply with that rule did not affect the enforceability of the proposal because the proposal “complied with the substantive requirements set forth by” F.S. 768.79.  Wheaton v. Wheaton, __ So.3d __ (Fla., No. SC17-716, 1/4/2019), 2019 WL 99109.

Court erred in not awarding fees under F.S. 57.105 to party who was forced to litigate frivolous interpleader action.  [Added 2/5/19]

          Husband and Wife had jointly owned rental property that was managed by a management company.  When they were divorced, the court awarded the rental property to Wife.  Husband and Wife each made a demand on the management company for rent proceeds entered after the divorce judgment.  Instead of paying Wife, the management company filed an interpleader.  Wife moved for summary judgment and for fees under F.S. 57.105, arguing that the interpleader action was frivolous.

          The court granted summary judgment to Wife on the interpleader but denied her motion for sanctions.  She appealed.

          The First DCA reversed.  Management company or its counsel “knew or should have known that there was no legal basis for an interpleader action because the final order of dissolution, which had not been stayed pending appeal, awarded the rental property to [Wife].”  Rawson v. Gulf Coast Property Management Co., Inc., __ So.3d __ (Fla. 1st DCA, No. 1D17-3945, 12/14/2018), 2018 WL 6579549.

Claims of lawyer and law firm to $500,000 “participation fee” in contingent fee case denied because rules governing division of fees were not followed.  [Added 1/31/19]

         Lawyer Katz was an associate at the Frank Weinberg & Black law firm.  While at the firm, Katz was contacted by a family friend (Taylor) who wanted to pursue a qui tam/whistleblower action.  The firm’s managing partner informed Katz that the case was outside of the firm’s area of expertise and the firm would not take it.  Katz then sent Taylor to another lawyer, Vitale.  Taylor hired Vitale.  The retainer agreement between them did not mention Katz or the law firm, nor did either of them sign the agreement.  In 2008 Vitale sent an email to Katz stating that “your participation fee is 25% of all attorney’s fees, including percentage of attorney portion of the settlement award realized” in Taylor’s case.

          Katz was terminated from the firm in 2013.  Katz claimed he had an oral agreement with the firm allowing him to take all clients he originated while at the firm (except certain associations).  The law firm, however, “had a different view of the separation.”

          Katz checked with Vitale “about once a year” regarding Taylor’s case, until the case settled in 2016.  At that time Vitale contacted Katz about paying the “participation fee,” which amounted to more than $500,000.  Vitale wanted Katz to provide a release from the law firm.  The firm refused to sign a release, claiming that it was entitled to the participation fee.  Vitale then filed an interpleader complaint.  Both Katz and the law firm responded claiming entitlement to the fee.  Each moved for summary judgment.  The trial court granted summary judgment for the law firm.  Katz appealed.

          After oral argument, Katz and the law firm filed a stipulation of dismissal of the appeal.  The Fourth DCA, however, issued an opinion “because the situation here (1) is capable of repetition yet evading review and (2) is of great public importance.”  The court stated that “mootness does not destroy an appellate court’s jurisdiction . . . when the questions raised are of great public importance or are likely to recur.”  (Citation omitted.)  The court observed:  “The conduct here at issue – the failure to follow rules mandated by the Supreme Court for participation fees – typically occurs in the shadows and rarely emerges in the light of day.”

          The parties' appellate arguments were based on contract and agency law, but the court refused to view the case as a “garden variety commercial dispute.”  Rather, both parties were seeking “to enforce a contract that is void because it violates the Rules Regulating The Florida Bar.

          Rule 4-1.5(f)(2) specifies certain requirements that must be met if a lawyer is to ethically share in the another firm’s contingent fee.  These requirements include having a written contract signed by the client and all lawyers who will participate in the fee, and in which all participating lawyers agree to assume joint legal responsibility to the client.  None of these requirements were met by Katz or the law firm.  The Supreme Court’s decision in Chandris v. Yanakakis, 668 So.2d 180 (Fla. 1995), “leaves no doubt that a lawyer’s failure to comply with Rule 4-1.5(f)(2) precludes the lawyer from enforcing a contingent fee agreement, including a participation agreement, because such a failure violates public policy.”

          The Fourth DCA stated its position very plainly:  “Neither Katz nor the law firm entered into a written contract called for by the rule.  Neither may enforce the 25% contingent participation fee agreement contained in Vitale’s email.  The agreement is void.  Period.”

          The court further explained that the settlement statement signed by Taylor at the conclusion of the case did not satisfy the requirement of the fee rule.  “The rules contemplate that the client’s consent will be secured at the outset of the case, not when the case is 99.9% over.”

          Relying on Chandris, the court commented that on remand Katz and the firm could argue for a recovery in quantum meruit – while adding “it appears such recoveries will be negligible” and noting that neither the Katz, the law firm, nor Vitale “are without sin.”

          (In a footnote, the court expressed the view that the underlying qui tam action fell within Rule 4-1.5(f)(4) (setting out the mandatory maximum fee schedule and requiring a statement of client’s rights) because it is an action “involving fraudulent appropriation of federal funds, which involved 'property damages' within the meaning of Rule 4-1.5(f)(4)” and Rule 4-1.5(g).)

“Technically admitted” admission does not equate to determination on merits for purposes of awarding prevailing party fees under F.S. 57.105(7).  [Added 1/30/19]

          Plaintiff Venture filed a foreclosure suit against Borrower.  Borrower asserted affirmative defenses including lack of standing.  Venture then moved to substitute Wilmington Savings Fund (“WSF”) as the plaintiff.  After the substitution was granted, WSF voluntarily dismissed the suit.  Borrower then sought prevailing party fees pursuant to F.S. 57.105(7).  The trial court granted the fees motion.

          WSF then sought reconsideration, arguing that Borrower was precluded from recovering fees because it had argued that the original plaintiff, Venture, lacked standing to sue under the same note and mortgage.  The court then struck its prior order and denied Borrower’s motion for fees.  Borrower appealed.

          The Fourth DCA reversed.  WSF relied on Nationstar Mortg. LLC v. Glass, 219 So.3d 896 (Fla. 4th DCA 2017), rev. granted, Glass v. Nationstar Mortg., LLC, 2018 WL 2069328 (Fla. Feb. 13, 2018), which held that a party that obtained a dismissal based on the plaintiff’s lack of standing to sue on the contract cannot recover fees based on a provision in that same contract.  The appeals court found Glass, where lack of standing had been decided on the merits, distinguishable from the case before it.  Original plaintiff Venture had failed to responds to Borrower’s requests for admissions regarding standing, and so those admissions were “deemed technically admitted.”  That was not sufficient for purposes of awarding prevailing party fees.  “Our courts have held that such ‘conclusively established’ admissions do not equate to determinations ‘on the merits.’  . . .  WSF’s voluntary dismissal rendered Glass inapplicable because the parties never litigated the merits of Venture’s or WSF’s standing below, and the trial court never made a finding that the Borrower was not a party to the note or mortgage.  . . .  Consequently, the fact that certain unanswered admissions became established facts in the underlying suit does not equate to a legal determination regarding Venture’s standing to bring this foreclosure action or WSF’s ability to maintain it.  . . .  Because WSF voluntarily dismissed the action, Borrower did not prevail on the merits in her argument that the lender lacked standing to sue on the contract.”  (Citations omitted.)  Rodriguez v. Wilmington Savings Fund Society, FSB, __ So.3d __ (Fla. 4th DCA, No. 4D18-310, 12/12/2018), 2018 WL 6528491.

Court did not err in denying fees following unaccepted nominal proposals for settlement, where proposals not made in good faith.  [Added 1/28/19]

          A driver with a blood alcohol level of twice the legal limit hit 2 mopeds from being, killing one person and severely injuring 3 others.  Suits were filed against the driver, the owner of the vehicle, and the restaurant (“Hayes Robertson”) that allegedly served the alcohol to the driver.  Hayes Robertson served proposals for settlement on the 3 individual plaintiffs at 3 different points during pretrial proceedings.  The first 2 sets offered $500 per plaintiff, with the third offering $100 per plaintiff.  None were accepted.

          The defense prevailed at trial and moved for fees based on the unaccepted proposals for settlement and F.S. 768.79.  The trial court denied the motion, ruling that the offers were not made in good faith.  Defendant appealed.

          The Third DCA affirmed.  The magnitude of the claimed damages, if the jury had found liability, was obvious from the record and would have been “far from nominal.”  The appeals court concluded:  “Here, as in Event Services America, Inc. v. Ragusa, 917 So.2d 882, 884 (Fla. 3d DCA 2005), we find no abuse of discretion in the trial court’s assessment of the nominal offers and the prospect that, at the time of the offers, the defendant ‘had at least some exposure.’”

          Thhe trial court had also found the offers ambiguous, but the appeals court ruled that it was unnecessary to address that issue.)   Hayes Robertson Group, Inc. v. Cherry, __ So.3d __ (Fla. 3d DCA, Nos. 3D17-2704, 3D18-106, 12/12/2018), 2018 WL 6518137.

Supreme Court rules that court-appointed lawyer is entitled to have Justice Administrative Commission determine qualifications and request for fees under statute in effect at time of his appointment rather than under current statute.  [Added 1/24/19]

          Upon being appointed to represent a death defendant in 2012, lawyer Calzon designed Cartenuto as her “designated attorney” to assist her with the case.  In 2017 Calzon sought fees from the Justice Administrative Commission (“JAC”).  JAC objected.  At the hearing, Cartenuto admitted that he did not meet the requirements for a designated attorney under the current statute (F.S. 27.704(2)).  The circuit court orally denied fees to Cartenuto.  Its written order awarded fees to Calzon but not Cartenuto.  They moved for reconsideration, arguing that Cartenuto satisfied the designated attorney requirements as found in the 2012 version of the statute.  Applying the current statutory requirements, the court denied the motion for reconsideration.  Cartenuto appealed to the Florida Supreme Court.

          The Supreme Court concluded that the statute in force when Cartenuto was appointed in 2012 was the applicable standard.  Accordingly, the Court reversed and remanded for reconsideration of the proper qualifications and a determination of reasonable fees.  Cartenuto v. Justice Administrative Comm’n, __ So.3d __ (Fla., No. SC18-322, 12/20/2018), 2018 WL 6695925.

Defendant borrower entitled to prevailing party fees in mortgage foreclosure case despite successful defense that plaintiff lacked standing at time it filed suit.  [Added 1/20/19]

          A Trust brought a mortgage foreclosure suit against Borrower.  Borrower moved to involuntarily dismiss the case on the ground that the Trust failed to prove standing – that is, it did not prove that it was the holder of the note and mortgage at the inception of the case as alleged in its complaint.  The trial court granted the motion and dismissed the case.  Borrower moved for prevailing party fees.  The Trust argued that Borrower “could not recoup prevailing party attorney's fees because the order of dismissal based upon lack of standing proved there was no contract between the parties and therefore Harris could not avail himself of the contractual fee provision or section 57.105(7).  The trial court agreed and denied the motion for fees.”  Borrower appealed.

          The Second DCA reversed.  Borrower was required to prove 3 things to be entitled to fees:  “(1) that the contract provides for prevailing party fees, (2) that both the movant and opponent are parties to that contract, and (3) that the movant prevailed.”  Although the Trust could not prove that it possessed the note and mortgage at the time the suit was filed nin 2014, that lack of standing did not necessarily mean that the Trust was not a party to the contract.  In fact, the Trust was a party to the contract by virtue of an assignment in 2012.

          The court further noted what it termed the “inequity of denying a prevailing party attorney’s fees required by contract simply because the opposing party could not prove its standing to prosecute the claim.”

          The Second DCA certified conflict with decisions of the Third DCA (Bank of N.Y. Mellon Trust Co., N.A. v. Fitzgerald, 215 So.3d 116 (Fla. 3d DCA 2017)) and Fourth DCA (Nationstar Mortgage LLC v. Glass, 219 So.3d 896 (Fla. 4th DCA 2017)) “to the extent that these opinions hold that a party’s failure to establish standing in a mortgage foreclosure case necessarily means that no contract existed between the parties.”  (Footnote omitted.)   Harris v. Bank of New York, Mellon, __ So.3d __ (Fla. 2d DCA, No. 2D17-2555, 12/28/2018), 2018 WL 6816177.

Lawyer suing former client for unpaid fees in breach of contract action not required to present expert testimony as to reasonableness of fees, per Fourth DCA.  [Added 1/7/19]

          Attorney and Client entered into a retainer agreement for a federal mail and securities fraud case.  The agreement called for a $50,000 initial non-refundable retainer and a $50,000 flat fee for a trial lasting 4 days or less.  If the trial went longer than 4 days, there would be an additional per-day fee.  After the case concluded, Attorney billed Client.  After payments and adjustments, Client still owed almost $84,000.  Client signed a promissory note for the unpaid balance.  When Client failed to make payments, Attorney sued for breach of contract.  “Client responded to the complaint, but did not challenge the reasonableness of the flat fees charged by Attorney.”

          At the breach of contract trial, Attorney introduced the retainer agreement, invoice, and promissory note.  Client raised no substantive objections.  Attorney testified as to his training and experience, the work he did for Client, and the balance due.  Client moved for a directed verdict on the ground that Attorney “failed to present independent expert testimony to establish the reasonableness of the attorney’s fees.”  Attorney responded that expert testimony was not required in a breach of contract suit over a flat fee and that the record evidence justified his fees.  The trial court granted Client’s motion for directed verdict “on the grounds that Attorney was required to present independent expert testimony to establish the reasonableness of the fees.”  Attorney appealed.

          The Fourth DCA reversed.  A party seeking recovery of fees from an opposing party in the same action is required to present expert testimony as to reasonableness.  “If, however, a party is seeking to recover previously incurred attorney’s fees as an element of compensatory damages in a separate breach of contract action, that party is not required to provide an independent expert witness to corroborate the reasonableness of the fees.”  The court went on to state that “because Attorney sought to recover flat fees and Client not only acknowledged the obligation when he executed the promissory note but also failed to raise any substantive objections to the evidence at trial, Attorney was not required to establish the overall reasonableness of the fees in his breach of contract action.”  (Citations omitted.)   Valentin Rodriguez, P.A. v. Altomare, __ So.3d __ (Fla. 4th DCA, No. 4D18-0785, 12/19/2018), 2018 WL 6681734.

First DCA rules that action for account stated will not support award of reciprocal fees based on underlying credit card contract, and certifies conflict with Second DCA.  [Added 1/2/19]

          Plaintiff Portfolio sued two Defendants in county court for unpaid credit card debt on a theory of account stated.  Plaintiff did not attach a credit card contract nor plead entitlement to attorney’s fees in the event that it prevailed.  Defendants answered, asserted affirmative defenses, and requested reciprocal fees pursuant to F.S. 57.105(7).

          Defendants prevailed at trial.  They moved for fees, which the court initially granted.  Portfolio moved for a new trial based on an intervening appellate decision from the circuit court holding that the reciprocal fees statute does not apply “in a case in which a creditor proceeds under an account stated cause of action independent of any written credit card agreement the creditor has with a debtor.”  Accordingly, the county court granted Plaintiff’s motions for new trial and denied fees to Defendants.  The county court certified the issue to the First DCA as a matter of great public importance.

          The First DCA affirmed.  The court explained that “an action for account stated is based on a new promise to pay that is separately enforceable without regard to any written contract from which the debt may have originated.”  In this case, Portfolio chose to proceed under an account stated cause of action.  “Because the action framed by Portfolio in these cases did not rely on the credit contracts containing the unilateral fee provision, we conclude that the debtors are not entitled to reciprocal fees under section 57.105(7) by virtue of those contracts.  To rule otherwise would undermine Portfolio’s ability to choose its cause of action.”

          The First DCA certified conflict with the Second DCA (Bushnell v. Portfolio Recovery Associates, LLC, __ So.2d __ (Fla. 2d DCA, No. 2D17-429, 9/14/2018), 2018 WL 4374251).  Ham v. Portfolio Recovery Associates, LLC, __ So.3d __ (Fla. 1st DCA, Nos. 1D17-3112, 1D17-3113, 11/30/2018), 2018 WL 6253294.

A “notice of intention” to file a charging lien that was filed by a discharged lawyer after the final judgment was entered was untimely and thus not enforceable.  [Added 12/31/18]

          Lawyer represented Wife in a dissolution case.  Lawyer was replaced after the trial court entered a final judgment of dissolution and while the direct appeal of that judgment was pending.  Lawyer “then filed a notice of intention to impose and enforce a charging lien [emphasis by court].  The trial court issued a post-dissolution support and fee order, and that led to a second appeal.  Once that appeal was resolved, [Lawyer] moved to adjudicate and impose his charging lien for work performed prior to the entry of the original final judgment.  The trial court determined that it was timely.”

          Husband petitioned for a writ of prohibition.  The Fourth DCA granted the petition and quashed the trial court’s order, for two reasons.  “First, [Lawyer] failed to file the notice of charging lien before the trial court issued the final judgment.  . . .  Second, the judgment denied both parties’ fee requests and therefore did not reserve jurisdiction to adjudicate fees.”  Reidy v. Reidy, __ So.3d __ (Fla. 4th DCA, No. 4D18-2525, 11/28/2018), 2018 WL 6204116.

Court erred in imposing fees as sanction under F.S. 57.105(1) because amount of sanction was determined by argument of counsel, with no billing records admitted into evidence.  [Added 12/27/18]

          Wife moved for sanctions under F.S. 57.105(1) based on Husband’s third motion to vacate.  The trial court found it meritless and ordered fees as a sanction under the statute.  Husband appealed, contending that the court erred in determining the amount of fees to award the Wife’s counsel “without receiving any testimony or other evidence.”  The Fourth DCA agreed and reversed in part.

          It was error to determine the fee award solely on the argument of counsel.  “Although counsel provided a copy of certain billing records, those records were not admitted into evidence.  As a result, the billing records were not competent evidence to support the court’s determination of the amount of sanctions.”  The appellate court remanded for an evidentiary hearing on the amount of fees to be awarded.

          In a footnote, the appeals court expressed sympathy with Husband’s contention that the issue was not properly persevered because Husband failed to object to the court’s reliance on unsworn testimony, but cited Brown v. School Board of Palm Beach County, 855 So.2d 1267 (Fla. 4th DCA 2003) in rejecting the argument.  Pansky v. Pansky, __ So.3d __ (Fla. 4th DCA, No. 4D15-3940, 11/28/2018), 2018 WL 6204105.

Defendant who prevailed at trial is denied fees under F.S. 768.79 because proposal for settlement was conditioned on plaintiff releasing all claims, including non-monetary claim for specific performance.  [Added 12/19/18]

          Defendant operated a jewelry concession on a cruise ship.  Plaintiff, a passenger, obtained a quote on a 15 to 20 carat loose diamond.  Defendant quoted a price for the diamond, and Plaintiff accepted.  The problem was that the price was supposed to be per carat, not the entire diamond – a difference of about $4.6 million.  When Defendant would not go through with the transaction, Plaintiff filed suit for specific performance (count I), breach of contract (count II), and conversion (count III).

          Defendant served Plaintiff with an offer to settle counts II and III.  “However, the proposal required a release and dismissal with prejudice as to all of [Plaintiff’s] claims.”  (Emphasis by court.)  After the jury returned a verdict for Defendant, it moved for fees under F.S. 768.79 based on the unaccepted proposed for settlement.  The trial court denied the motion, finding that:  (1) it was unambiguous; (2) it was conditioned on a release and dismissal of all claim, monetary and non-monetary; and (3) as a result, the proposal was invalid under Diamond Aircraft Industries, Inc. v. Horowitch, 107 So.3d 362 (Fla. 2013).

          Defendant appealed.  The Third DCA affirmed.  “Although [Defendant]’s proposal for settlement offered to settle only the breach of contract and conversion claims for $75,000, the offer was contingent upon [Plaintiff] executing a release and dismissing with prejudice all of his claims.”  (Emphasis by court.)  The proposal was intended to resolve all claims, both monetary and non-monetary.  F.S. 768.79 applies to civil actions in which the party seeks only monetary damages.  As it is in derogation of the common law rule that each party pays its own attorney’s fees, F.S. 768.79 is strictly construed.  In Horowitch, “the Florida Supreme Court found that section 768.79 does not apply to cases that seek both equitable relief and damages” (such as specific performance).  Starboard Cruise Services, Inc. v. DePrince, __ So.3d __ (Fla. 3d DCA, No. 3D16-2009, 11/21/2018), 2018 WL 6071456.

Party that succeeds in having mortgage foreclosure dismissed because lender is not entitled to enforce contract cannot recover fees based on provision in that contract.  [Added 12/7/18]

          Bank sued Borrowers on a mortgage.  Trying to avoid foreclosure, Borrowers accepted an offer to enter a Deed Agreement to tender the property to Bank.  The Deed Agreement, unlike the original mortgage agreement, did not mention attorney’s fees.  When Borrowers did not comply with the terms of the Deed Agreement, Bank sued to foreclose.  At trial Borrowers argued that Bank was estopped to foreclose.  The trial court dismissed the suit “based on its finding that the Bank ‘entered into a settlement agreement for a Deed in Lieu of Foreclosure prior to commencement of this action.’”

          Borrowers moved for prevailing party fees under a provision in the mortgage and F.S. 57.105(7).  Bank objected, asserting that because the Deed Agreement controlled the parties’ relationship, it constituted a novation of the mortgage.  Bank also argued that Borrowers were not entitled to fees under the mortgage because Bank failed to establish entitlement to enforce it.  The trial court awarded fees to Borrowers.

          The Fourth DCA reversed.  “[A] party that prevails on its argument that dismissal is required because the plaintiff bank is not entitled to enforce the contract containing the fee provision cannot recover fees based upon a provision in that same contract.”  See Nationstar Mortgage LLC v. Glass, 219 So.3d 896, 899 (Fla. 4th DCA 2017), review granted, No. SC17-1387, 2018 WL 2069328 (Fla. Feb. 13, 2018).

          Even absent its decision in Glass, the appeals court noted that it “would reach the same conclusion for two reasons.  First, by dismissing the Bank’s foreclosure action based on the existence of the Deed Agreement and subsequently enforcing that agreement, the trial court effectively extinguished the mortgage along with the provisions contained therein.”   A provision in that extinguished contract would not support a fee award.  Additionally, the court concluded that Borrowers “are not the prevailing party.”  Borrowers succeeded in having the foreclosure action involuntarily dismissed, but Bank was successful in having the Deed Agreement enforced against Borrowers.  “In other words, the litigation essentially ended in a proverbial tie with each party prevailing in part and losing in part.”   Wells Fargo, N.A. v. Moccia, __ So.3d __ (Fla. 4th DCA, No. 4D18-0479, 11/7/2018), 2018 WL 5822167.

Supreme Court again cautions lower courts about “nitpicking” proposals for settlement to find ambiguities.  [Added 11/1/18]

          Gabriel Nunez was driving a vehicle owned by his father (Jairo Nunez) when he struck Allen’s vehicle, which was legally parked in the street.  Allen sued Gabriel and Jairo for the damages.  Allen served separate proposals for settlement on each defendant.  The proposals were identical except for substitution of the defendant’s first name.  Neither defendant accepted Allen’s proposal.

          Allen prevailed at trial, obtaining a judgment for almost $30,000.  He then moved for attorney’s fees based on the unaccepted proposals for settlement.  The defendants moved to strike the motion, alleging that paragraph 5 of each proposal was ambiguous and thus unenforceable because it stated that the proposed settlement was “inclusive of all damages claimed by Allen.”  The specific language of paragraph 5 was:  “5. This Proposal for Settlement is inclusive of all damages claimed by Plaintiff, W. RILEY ALLEN, including all claims for interest, costs, and expenses and any claims for attorney’s fees.”  The trial court rejected this claim and granted the motion, finding that the proposals were “sufficiently clear and unambiguous.”  The Fifth DCA, however, reversed on the ground that the language in paragraph 5 rendered the proposals ambiguous.  Nunez v. Allen, 194 So.3d 554 (Fla. 5th DCA 2016).

          Exercising its conflict jurisdiction, a 4-3 majority of the Florida Supreme Court reversed the Fifth DCA decision.  The Court noted that it “has not required the elimination of every ambiguity – only reasonable ambiguities,” State Farm Mutual Auto. Ins. Co. v. Nichols, 932 So.2d 1067 (Fla. 2006), and that trial courts are “discouraged from ‘nitpicking’ proposals for settlement to search for ambiguity,” Carey-All Transp., Inc. v. Newby, 989 So.2d 1201 (Fla. 2008).  After reviewing a number of DCA decisions, the Court stated:  “The reading of Allen’s offers as espoused by [defendants] and the Fifth District was unreasonable under these circumstances and in contravention of this Court’s direction in Nichols.  Each proposal clearly and consistently used the singular term ‘PLAINTIFF,’ which was defined as W. Riley Allen in paragraph 2.  Moreover, paragraph 3 indicated that each proposal was designed to settle ‘any and all claims of PLAINTIFF against [DEFENDANT],’ which by its clear terms suggested that the only parties to be affected by the proposal would be Allen and the designated [defendant].  In reading the entirety of this proposal, the only reasonable interpretation is that Allen offered to settle his claims with only the [defendant] specified in each respective proposal.”

               The Court concluded:  “Reading the plain language of Allen’s offers, we hold that these offers to settle his claims against the Respondents were unambiguous.  The ‘nitpicking’ of these offers by the district court below to find otherwise unnecessarily injected ambiguity into these proceedings and created more judicial labor, not less.”

          A concurring opinion “highlight[ed] the proliferation of litigation surrounding proposals to settle, which runs counter to the entire purpose of these proposals – to reduce litigation” and urged trial courts “to refrain ‘from ‘nitpicking,’’ and find a proposal unenforceable only when there is a reasonable ambiguity as to its meaning.”  (Emphasis in original.)

          dissenting opinion joined by 3 justices would have decided that the Court lacked jurisdiction because the Fifth DCA’s decision did not expressly and directly conflict with the decisions cited by Allen.   Allen v. Nunez, __ So.3d __ (Fla., No. SC16-1164, 10/4/2018), 2018 WL 4784606.

On rehearing, Third DCA concludes that proposal for settlement served on 2 parties was invalid and unenforceable because it did not permit both offerees to independently evaluate or settle their respective claims.  [Added 10/19/18]

          Atlantic sued Swift and Key Haven for conversion.  Atlantic served a proposal for settlement, including a proposed release, on each defendant.  Neither defendant accepted.  After the court entered judgment in its favor, Atlantic moved for fees pursuant to F.S. 768.79.  The court denied the fee motion, agreeing with defendants that the offer was invalid because, among other reasons, it was conditioned on acceptance by both offerees.

          The Third DCA affirmed.  In Attorneys’ Title Insurance Fund, Inc. v. Gorka, 36 So.3d 646 (Fla. 2010), the Supreme Court invalidated a joint proposal for settlement that one defendant presented to two plaintiffs that was conditioned upon acceptance by both plaintiffs.  The proposal was invalid because it was “conditioned such that neither offeree can independently evaluate or settle his or her respective claim by accepting the proposal.”  (Citation omitted.)  The Gorka rule that a joint proposal for settlement must be structured so offeree can independently evaluate and settle it own respective claim, irrespective of any other offeree’s decision, “has been applied in the absence of language expressly requiring mutual acceptance.”

          In this case, the Proposal sought the single sum of $50,000.  Although it apportioned the total sum as payments of $25,000 from each offeree, “it does not state how much either party would be required to pay to settle Civil Atlantic’s claim on his or its own.”  Further, the proposal required the offerees to execute a general release and provided that the proposal “shall be deemed rejected unless Defendants accept it,” thereby conditioning settlement on Swift and Key Haven’s “mutual acceptance of the offer and joint action in accordance with its terms.”  (Citation omitted.)  The court concluded:  “Because the Proposal deprived Swift and Key Haven of the ability to independently evaluate and accept Atlantic Civil’s offer to settle its claims, we hold that the Proposal is invalid under the dictates of Gorka.”  Atlantic Civil, Inc. v. Swift, __ So.3d __ (Fla. 3d DCA, No. 3D15-1594, 10/3/2018) (on rehearing), 2018 WL 4762408.

Court erred in denying motions for fees against indispensable party added to  suit against its will and rejected proposals for settlement made under F.S. 768.79 and Fla.R.Civ.P. 1.442.  [Added 10/9/18]

          Medex filed a suit.  The court determined that Policlinica was an indispensable party.  Medex added Policlinica as an additional plaintiff, and ultimately Premium, Corvaia, and Ruiz were added as defendants.  Ruiz, Corvaia, and Premium served Policlinica with separate proposals for settlement that were not accepted.  At trial, the court found in favor of Ruiz against Medex and Policlinica.  The court found for Medex and Policlinica against Corvaia and Premium, but “awarded all of the damages to Medex and none to Policlinica.”

          Ruiz, Corvaia, and Premium moved for fees against Policlinica pursuant to F.S. 768.79 and Fla.R.Civ.P. 1.442 based on the rejected proposal for settlement.  Corvaia and Premium also moved for fees against Policlinica based on their rejected proposals for settlement.  Despite finding that that motions were not ambiguous and were made in good faith, the trial court denied the motions.  The movants appealed, and the Third DCA reversed.

          The trial court denied Ruiz’s motion for fees based on the fact that Policlinica “was forced into this litigation against its will” based on the court’s order and that the purposes of the offer of judgment statute “Policlinica given that settling Policlinica’s claims would not have resulted in eliminating any of the claims to be considered by the Court and therefore would not have resulted in any of the efficiencies the offer of judgment statutes are designed to promote.”

          The trial court denied the motions of Corvaia and Premium against Policlinica because “the only reason the final judgment, ‘as a technical matter, does not award damages to Policlinica is to avoid a double recovery and because the [predecessor judge] found that as between the two of them, Medex suffered the damages more directly.’  The trial court concluded that ‘[a]bsent Medex, however, Policlinica would have been awarded all of the damages awarded to Medex.’”

          Both of the rulings were erroneous and were reversed.  The offer of judgment statute “creates an entitlement to attorney’s fees when the statutory and procedural requirements have been satisfied.”  The reasonableness of an offeree’s rejection of an offer is irrelevant.  “Here, all of the requirements of both the statute and the rule governing proposals for settlement were met.  The only basis for denying entitlement to attorney’s fees is a finding by the trial court that Ruiz, Premium, or Corvaia did not make their offers in good faith or that they made them in bad faith.  Because the trial court made neither a finding of bad faith nor a finding that the offers were not made in good faith, its denial of attorney’s fees to Ruiz, Premium, and Corvaia was error.”   Ruiz v. Policlinica Metropolitana, C.A., __ So.3d __ (Fla. 3d DCA, Nos. 3D17-1535, 3D17-1523, 9/26/2018), 2018 WL 4608786.

Answering certified question arising from county court order, Second DCA rules that reciprocity provision of F.S. 57.105 applies to action for account stated brought to collect amount due under credit card agreement.  [Added 10/1/18]

          A county court denied defendant Bushnell’s motion for prevailing party fees in after the plaintiff voluntarily dismissed its action against her for account stated.  The defendant was successor in interest to the original creditor on Bushnell’s credit card account.  Bushnell’s motion was based on a provision in the credit card agreement for prevailing party fees to the creditor and the reciprocity provision in F.S. 57.105(7).  In denying Bushnell’s motion the court certified a question of great public importance to the Second DCA.

          The Second DCA rephrased the certified question and reversed.  Relying on the “inextricably intertwined” test in Caufield v. Cantele, 837 So.2d 371 (Fla. 2002), the Second DCA concluded:  “[I]n an action for account stated brought to collect the amount due under a credit card agreement, the reciprocity provision in section 57.105(7) applies to a properly pleaded request for attorney’s fees made pursuant to the terms of the agreement.  As a result, we reverse the order that denied Bushnell’s motion for attorney’s fees and remand for the trial court to determine the reasonable amount of attorney’s fees to be awarded to Bushnell.”   Bushnell v. Portfolio Recovery Associates, __ So.2d __ (Fla. 2d DCA, No. 2D17-429, 9/14/2018), 2018 WL 4374251.

Fourth DCA upholds prevailing party fee award to borrower whose argument that foreclosing bank lacked standing was not adjudicated on merits because bank voluntarily dismissed suit.   [Added 9/28/19]

          Bank filed a foreclosure suit against Borrower.  Borrower raised defenses including the Bank’s alleged lack of standing.  Bank voluntarily dismissed the suit.  Borrower moved for prevailing party fees under F.S. 57.105.  The trial court granted fees to Borrower.

          Bank appealed.  Relying on Nationstar Mortgage LLC v. Glass, 219 So. 3d 896, 899 (Fla. 4th DCA 2017), Bank argued that the fee award was error “because the borrower failed to demonstrate that both he and the bank were entitled to enforce the note and mortgage, emphasizing that the borrower argued to the contrary below by raising the affirmative defense that the bank lacked standing.”

          The Fourth DCA affirmed.  “[T]here is a difference between prevailing on the merits on a standing issue and an undifferentiated voluntary dismissal of a lawsuit prior to any merits determination.  The bank’s voluntary dismissal took this case out of Glass.  Standing was never litigated below and the trial court never made a finding that the bank or the borrower were not parties to the contract.  Because the borrower did not prevail on his argument that dismissal was required because the bank lacked standing to sue on the contract, he is not precluded from recovering fees based on a provision in the same contract.”   Wells Fargo Bank, N.A. v. Elkind, __ So.3d __ (Fla. 4th DCA, No. 4D17-1213, 9/5/2018), 2018 WL 4212149.

Fourth DCA addresses proper method of handling F.S. 768.79 fee award in insurance case where execution on large part of judgment stayed pending outcome of bad faith claim.  [Added 9/20/18]

          Insured sued Insurer seeking damages under an uninsured motorist (UM) policy that had a limit of $20,000 per accident.  Insured’s claim was for 2 separate auto accidents.  Insured moved to amend to add a bad faith claim, but that motion was denied without prejudice.  Insurer did not accept Insured’s proposal for settlement of $40,000 per claim.  The jury rendered a verdict for Insured in the amount of $170,598 for one accident and $84,564 for the other.

          Various additional appellate and trial court proceedings ensued.  Insured’s motion to add a bad faith claim was granted and the trial court entered a judgment for Insured in the full amount of the jury verdict, but stayed execution on all but $20,000 per accident (the UM policy limits).  Insured’s motion for fees pursuant to F.S. 768.79 was granted.  The parties agreed to a $200,000 fee award, with Insurer reserving the right to appeal entitlement to those fees.

          The Fourth DCA reversed.  The appeals court observed that Fridman v. SafeCo Ins. Co. of Illinois, 185 So.3d 1214 (Fla. 2016), “established the appropriate protocol to follow if a plaintiff prevails in a UM action and then elects to pursue a bad faith claim,” as happened in this case.  The trial court should enter judgment for the full amount of the insured’s damages, even though the insured must later pursue a bad faith action to recover any amount in excess of policy limits, and limit execution of the judgment to the policy amount.  The trial court did that in this case, which meant that “the only enforceable judgment against the insurer at this time, or what is effectively the ‘net judgment’ as section 768.79(6)(b) describes, is for the amount representing the policy limits of $20,000 per accident.”  Thus, Fridman compels us to adopt another ‘preferable approach’ in the context of first-party bad faith litigation:  waiting until a determination is made on whether the plaintiff proved bad faith claims against an insurer before determining entitlement to an award of attorney’s fees and costs against an insurer under section 768.79.  Therefore, we reverse the trial court’s awards of trial and appellate fees and costs, and remand for further proceedings to consider an award pursuant to section 768.79 at the end of the parties’ bad faith litigation.”   21st Century Centennial Ins. Co. v. Walker, __ So.3d __ (Fla. 4th DCA, No. 4D17-2937, 8/29/2018), 2018 WL 4151289.

Not abuse of discretion to award 2.0 multiplier in a first-party, late notice insurance claim case where “minimal” evidence supported finding that relevant market required  multiplier.  [Added 9/17/18]

          Insured filed a claim with Insurer for damage to her home from Hurricane Wilma.  Insurer paid $8400 in 2005.  Five years later Insured retained a law firm, which filed suit alleging that Insurer breached the contract by not participating in the appraisal process under the policy.  During the litigation Insurer filed a proposal for settlement of $2000, which was not accepted.  Ultimately Insured’s motion to compel arbitration was granted and the appraisal umpire awarded $27,367 for the claim.

          Insured was entitled to fees under F.S. 627.428.  At the fee hearing, Insured’s expert testified that these types of first-party, late notice cases have become “very, very difficult” and that insureds “have a difficult time finding qualified and capable lawyers because of the risk that’s involved” in taking these kinds of cases on a contingent fee basis (e.g., lengthy litigation against well-funded adversaries).  The expert testified that a multiplier of 1.6 or 1.7 was appropriate.  Insured did not attack the expert’s multiplier opinion on cross-examination.  The trial court found that a reasonable fee based on hourly rate and time expended was $60,125, then applied a 2.0 multiplier.  Insurer appealed.

          The Third DCA affirmed.  The court rejected Insurer’s contention that contingency fee multipliers are available only in “rare” and “exceptional” cases, explaining at length that the Florida Supreme Court had rejected that position in Joyce v. Federated National Ins. Co., 228 So.3d 1122 (Fla. 2017).

          The appeals court further concluded that the trial court’s determination that the relevant market required a multiplier was not an abuse of discretion, despite characterizing the testimony supporting this conclusion as “minimal.”  Additionally, it upheld the trial court’s finding that the results obtained warranted a multiplier – Insurer had offered $2000, while the umpire awarded over $27,000.  Finally, it also upheld the finding that the complexity of the case warranted a multiplier, noting that “a contingency fee multiplier analysis ‘is properly analyzed through the same lens as the attorney when making the decision to take the case.’”  Citizens Property Ins. Corp. v. Laguerre, __ So.3d __ (Fla. 3d DCA, No. 3D15-2411, 8/22/2018), 2018 WL 3999132.

Court has broad discretion to award temporary fees in family matters under F.S. Chapter 61, as well as in “matters which are intricately intertwined with those matters.”  [Added 9/14/18]

          In a dissolution of marriage action, Husband and Wife entered into a mediated temporary agreement.  But shortly after that, Husband amended his dissolution petition to include a civil theft claim alleging that Wife forged his signature on checks from his business account while she was the bookkeeper.  Wife then sought additional fees and costs.  The court awarded $138,000 in fees and costs, which included $30,000 in fees to defend against the civil theft claim.  The court found that the civil theft count “necessarily involves the same and overlapping issues involved in the dissolution action” and so an award of temporary fees for the civil theft claim was proper.

          Husband appealed, arguing that there was no statutory basis to award fees for the civil theft claim.  The Fourth DCA affirmed.

          F.S. 61.16 authorizes an award of fees for actions brought under Chapter 61.  In addition, the Fourth DCA “has held that an award of fees is appropriate when the separate action is ‘so intertwined with the dissolution litigation’ that it is “part and parcel of the domestic strife.’”  This was such a case.  “The civil theft claim involves a business wholly owned and controlled by the husband and concerns the wife’s involvement as the bookkeeper of the business.  Additionally, the husband’s accountant testified that the parties used the business account as a personal ‘piggy bank’ and that the husband paid his attorney’s fees and costs out of this account.  We also note that the husband raised the litigation stakes by injecting the civil theft claim into the Chapter 61 action, placing treble damages at issue in this dissolution war.”   Stein v. Stein, __ So.3d __ (Fla. 4th DCA, No. 4D18-493, 9/12/2018), 2018 WL 4356091.

Orders imposing F.S. 57.105 sanctions against party and counsel reversed due to lack of required factual findings, failure to properly apportion award, and lack of proper notice to those sought to be sanctioned.  [Added 9/7/18]

          Plaintiffs sued Defendants, alleging fraud in connection with a transportation brokerage agreement.  Defendants sent Plaintiffs’ counsel a proposed motion for sanctions, along with a “safe harbor” letter under F.S. 57.105.  A few days later Plaintiffs’ counsel filed an emergency motion to withdraw, which was granted shortly thereafter.  After successor counsel entered an appearance, Defendants filed a motion for sanctions against Plaintiffs and successor counsel, as well as a motion for summary judgment.  Summary judgment was granted for Defendants.  Ultimately the trial court granted the motion for F.S. 57.105 sanctions against Defendants and successor counsel.

          The Third DCA reversed on several grounds.  First, the trial court failed to make the required findings that the action was “frivolous or so devoid of merit both on the facts and the law as to be completely untenable.”  (Citation omitted.)  Second, the trial court’s orders “appear to improperly impose ‘joint and several liability’ for the full amount upon” Defendants and successor counsel.  This was improper under F.S. 57.105(1), which requires apportionment of sanction awards (awards are “to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney”).

          Third, Defendants did not give notice in compliance with the statute, which requires that the motion be served on the parties against whom sanctions are sought – here, Defendants and successor counsel.  The motion against them was filed with the court, but never served on them.  The fact that a notice letter was sent to Defendants’ prior counsel was irrelevant.  F.S. 57.105 is in derogation of common law and is strictly construed, and its procedural requirements were not followed.  The Third DCA previously held that “providing actual notice, by way of a letter, wasinsufficient to comport with the statutory requirement that a proposed motion be served twenty-one days prior to it being filed with the court.”  (Citation omitted.)   MC Liberty Express, Inc. v. All Points Services, Inc., __ So.3d __ (Fla. 3d DCA, No. 3D17-0961, 8/8/2018), 2018 WL 3747999.

Court erred in denying motion for fees pursuant to unaccepted proposal for settlement solely because certificate of service was not signed by counsel.  [Added 8/31/18]

          Flory served a proposal for settlement under F.S. 7.68.79 and Fla.R.Civ.P. 1.442 that was not accepted.  The certificate of service was not signed by Flory’s counsel.  After a favorable jury verdict, Flory moved for fees pursuant to the unaccepted proposal.  The trial court denied the fee motion “solely on the ground that the proposal was invalid because the certificate of service that accompanied it was not signed, which the court found rendered the proposal noncompliant with the requirements of rule 1.442(c)(2)(g).”  (Emphasis by court.)  Flory appealed.

          he Second DCA reversed.  The omission of the signature did not render the proposal invalid.  “[N]othing in the the plain language of the applicable rules actually required the certificate of service accompanying the proposal for settlement to be signed.”  Further, citing Boatright v. Philip Morris USA, 218 So.3d 962 (Fla. 2d DCA 2017), the court noted that the only portion of Fla.R.Jud.Admin. 2.516 (which is referenced in rule 1.442(c)(2)) that is relevant to proposals for settlement “is the form of certificate of service identified in rule 2.516(f).”  (Emphasis by court.)  Nor is Fla.R.Jud.Admin. 2.515 (requiring “that ‘[e]very document of a party represented by an attorney shall be signed by at least 1 attorney of record’”) relevant; it “is not referenced at all in rule 1.442.”

          The appeals court stated that its decision “should not be viewed as an imprimatur of approval of the failure of an attorney to sign a document.  However, we cannot impose signature requirements on the parties that are not placed there by the applicable statute and rules, and we cannot find a proposal for settlement invalid for the lack of a signature on the certificate of service when no signature is expressly required.  Any such requirement will require an amendment to the applicable rules.”   Valle v. Flory, __ So.3d __ (Fla. 2d DCA, No. 2D16-2848, 8/15/2018), 2018 WL 3862655.

Court’s award of "equitable lien” that indirectly awarded attorney’s fees to unsuccessful party is reversed.  [Added 8/27/18]

          Father and Mother executed a Special Warranty Deed that deed retained a life estate for the grantors and passed the remainder to their 2 children, Son and Daughter.  Mother predeceased Father, who died in 2011.  Daughter had died in 2009.  Daughter’s husband found the deed and obtained an order of summary administration awarding him Daughter’s interest in the property.  Son, as personal representative of Father’s estate, sued to nullify the deed based on Mother’s alleged mental infirmity.  The trial court agreed with Son’s position and ordered the deed vacated.

          Despite the fact that he was the losing party, Daughter’s husband sought an award of fees.  The fee request was denied.  The court, however, awarded him an “equitable lien” in the amount of the more than $76,000 he spent on attorney’s fees in the matter.  Son, as personal representative of Father’s estate, appealed.

          The Fifth DCA reversed.  “It is a natural corollary that a court may not utilize general, amorphous notions of equity to circumvent such a well-established rule.  Neither [Daughter’s husband] nor this Court’s own research has revealed a case approving an equitable lien awarding attorney fees to a non-prevailing party.  We decline Appellee’s invitation to create another avenue for courts to award attorney fees.”  Simon v. Waters, __ So.3d __ (Fla. 5th DCA, No. 5D17-3355, 8/10/2018), 2018 WL 3795476.

Court erred in entering judgment for fees in favor of party’s lawyer rather than party.  [Added 8/9/18]
          Plaintiff prevailed at trial and was awarded fees based on a proposal for settlement that was not accepted by Defendant.  The trial court awarded fees, but entered judgment in favor of Plaintiff’s lawyer rather than Plaintiff.  Defendant appealed on several grounds, including that “the fee judgment was void because it was entered in favor of [Plaintiff’s] attorney, who was not a party to the proceedings.”
          The Fourth DCA agreed.  The court noted that the offer of judgment statute, F.S. 768.79(6)(a), provides in pertinent part that, “If a plaintiff serves an offer which is not accepted by the defendant, and if the judgment obtained by the plaintiff is at least 25 percent more than the amount of the offer, the plaintiff shall be awarded . . .” (emphasis by court).  “[Plaintiff] was the plaintiff in the case, not his attorney.  Therefore, a plain reading of the statute compels us to conclude that [Plaintiff]’s attorney cannot personally be awarded fees under section 768.79(6)(a).”
          The case was remanded so the trial court could amend the fee judgment.   Fournier v. Calvo, __ So.3d __ (Fla. 4th DCA, Nos. 4D13-2611, 4D13-3900, 4D13-3902, 4D13-3903, 7/25/2018), 2018 WL 3569970.

Court erred in awarding law firm expenses incurred in prosecuting charging lien against former client.  [Added 8/7/18]

          Law Firm represented Client in her personal injury case on a contingent fee basis.  Client discharged Law Firm before the contingency occurred.  Law Firm filed a charging lien.  The trial court found for Law Firm and awarded it an amount that included $21,079 “incurred in prosecuting the lien.”  Client appealed, arguing that the court erred in awarding Law Firm amounts incurred in prosecuting the lien.

          The Fourth DCA reversed.  Noting that its prior decision in Tucker v. Tucker, 165 So.3d 798 (Fla. 4th DCA 2015) “resolved this exact issue,” the appeals court reversed and remanded with directions that the trial court “eliminate the amounts incurred in the prosecution of the charging lien from the judgment.”  Abt v. Metro Motors Ventures, Inc., __ So.3d __ (Fla. 4th DCA, No. 4D17-1960, 7/25/2018), 2018 WL 3569390.

Certifying conflict, Fifth DCA rules that motion for sanctions served under section 57.105 must be served in compliance with Fla.R.Jud.Admin. 2.516 even though motion may not be filed until after safe harbor period expires.  [Added 8/6/18]

          In the trial court, Appellants filed a motion for sanctions pursuant to F.S. 57.105(4).  The email service of the motion on Appellees did not comply with Fla.R.Jud.Admin. 2.516.  Following expiration of the 21-day safe harbor period, Appellants filed the motion and served it again.  The second service complied with rule 2.516.  Relying on Matte v. Caplan, 140 So.3d 686 (Fla. 4th DCA 2014), the trial court denied fees to Appellants because the initial service did not comply with the rule.

          The Fifth DCA affirmed, holding that “a section 57.105 motion must be served in strict compliance with rule 2.516.”  The court explained:  “The plain language of rule 2.516 leads us to the inescapable conclusion that the timing of the ‘filing’ is of no consequence to the requirement of service under the rule.  The rule says ‘filed,’ not immediately filed or contemporaneously filed.  The motion at issue here was ultimately ‘filed,’ albeit much later than when it was initially served.  Had it not been filed at some point the document would have been inconsequential and this entire dispute avoided.  Our conclusion on this point is buttressed by rule 2.516(d), which governs the timing of the filing of the document.  It requires that all documents ‘must be filed with the court either before service or immediately thereafter, unless otherwise provided for by general law or other rules.’  Fla. R. Jud. Admin. 2.516(d).  Accordingly, rule 2.516 contemplates two temporal categories of filed documents – those that are filed immediately and those that are filed at some other time.  No distinction is made in the rule regarding service of these two distinct categories of documents.”  (Emphasis by court.)

          The appeals court certified conflict with the Second DCA (Isla Blue Development, LLC v. Moore, 223 So.3d 1097 (Fla. 2d DCA 2017)) and aligned itself with the Third DCA (Wheaton v. Wheaton, 217 So.3d 125 (Fla. 3d DCA 2017), rev. granted, 2017 WL 4785810 (Fla. October 24, 2017)).  Goersch v. City of Satellite Beach, __ So.3d __ (Fla. 5th DCA, No. 5D17-386, 7/20/2018), 2018 WL 3479249.

In reversing order granting motion to strike charging lien, appeals court addresses which court is proper forum on remand and whether evidentiary hearing is required.  [Added 8/2/18]

          Lawyers who had formerly represented Wife in a family law case filed a charging lien.  Wife filed a motion to strike the charging lien.  The trial court granted Wife’s motion. 

          The Fourth DCA reversed.  Wife’s motion was directed at Lawyers’ original charging lien, but Lawyers had filed an amended charging lien before the court ruled on Wife’s motion.  The court erred in striking the original lien, because the amended lien had rendered Wife’s motion moot.

          The appeals court stated that, on remand, any proceedings regarding the charging lien would be in the family division from which the appeal rose.  “[T]he proper forum for adjudicating the validity, enforceability and amount of a charging lien is with the trial judge before whom the underlying action is pending . . .” (citation omitted).

          Further, the court pointed out that “based on the arguments raised in the parties’ briefs, any hearings on any such proceedings shall be evidentiary in nature, unless the circuit court determines that the amended charging lien is insufficient as a matter of law.”  D’Anna v. Ackerman, __ So.3d __ (Fla. 4th DCA, No. 4D17-2791, 7/11/2018), 2018 WL 3385639.

Fourth DCA reaffirms that prevailing party fee provision in contract can be broad enough to include entitlement to fees related to execution on judgment.  [Added 7/31/18]

          Borrower pledged stock to secure a loan.  Borrower failed to repay the loan and transferred the stock to a friend.  Lender obtained a judgment and sought to collect.  Borrower appealed.  After litigation maneuvers and the filing of suggestions of bankruptcy, Borrower ultimately paid Lender in full.  The appeals court affirmed and also awarded appellate fees to Lender.  The trial court then heard and ruled on Lender’s motion for fees, awarding fees for work done in both state court and bankruptcy court.  Borrower’s Chapter 7 bankruptcy Trustee appealed.

          The Fourth DCA affirmed.  Trustee’s argument that the merger doctrine precluded a fee award because the note containing the prevailing party fee provision was merged into the final judgment was rejected by the appeals court.  The court noted that it “previously held that a contract providing for a prevailing-party’s entitlement to ‘all reasonable attorney’s fees and costs’ was ‘broad enough to encompass fees for execution on the judgment.’”  (Citation omitted.)  The language in prevailing party fee provision in the instant case was “broad enough to encompass the extended litigation pursued by the borrower and trustee after payment of the judgment.  Thus, the merger doctrine does not prevent the note from serving as a basis for the fee award.”

          Trustee also argued that the trial court erred in not considering whether Borrower had attempted to avoid or evade paying the judgment.  This was immaterial, however, because “whether the borrower attempted to avoid or evade paying the judgment is a consideration for the court as to the amount of fees and costs – not entitlement.”  Regardless, the appellate court pointed out that the trial court actually had considered this factor.  Webber v. D’Agostino, __ So.3d __ (Fla. 4th DCA, No. 4D17-3007, 7/5/2018), 2018 WL 3301892.

Single order granting one party entitlement to fees and denying fee entitlement to other party is appealable final order.  [Added 7/24/18]

          A suit between Yampol and Turnberry Isle South Condominium Ass’n (Turnberry) was dismissed for lack of prosecution.  Both parties filed motions seeking entitlement to fees.  An order was entered.  Turnberry moved for reconsideration, and the court entered a Second Order finding that Turnberry was the prevailing party and so was entitled to fees, and denying Yampol’s entitlement to fees.

          Yampol appealed.  Turnberry moved to dismiss, arguing that the Second Order “is a non-final, non-appealable order because the trial court has not set the amount of attorney’s fees awarded to Turnberry.  In his response, Yampol argued that dismissal is not warranted as his ‘appeal does not arise from an order granting entitlement to attorneys’ fees to Turnberry, but rather an order denying Yampol’s entitlement to attorneys’ fees against Turnberry.’”

          The Third DCA framed the issue on appeal as “whether an order that grants one party’s entitlement to fees and denies the other party’s entitlement to fees is an appealable final order.”  Because the Second Order denied Yampol’s entitlement to fees, it was a final, appealable order.  “[I]n its Second Order, ruled on the entire issue of Yampol’s entitlement to attorneys’ fees. In denying Yampol such entitlement, no further judicial labor on the issue of the amount of attorneys’ fees owed to Yampol was required.  Because that portion of the Second Order denying Yampol’s entitlement to attorneys’ fees is an appealable order, we deny Turnberry’s motion to dismiss.”   Yampol v. Turnberry Isle South Condominium Ass’n, Inc., __ So.3d __ (Fla. 3d DCA, No. 3D17-2752, 7/5/2018), 2018 WL 3286318.

Court erred in denying prevailing party fees on ground that fee provision was in same paragraph as invalid provision regarding injunctive relief without posting  bond.  [Added 7/19/18]

          Plaintiff obtained an injunction against a former employee for violation of a non-compete agreement contained in their employment agreement.  Plaintiff moved for fees, but the trial court denied the motion because the fee provision was in the same paragraph in the employment agreement as an impermissible provision purporting to permit injunctive relief without the posting of a bond.  Plaintiff appealed.

          The Fourth DCA reversed.  The agreement contained a severability clause.  The court noted that the “essence” of the paragraph containing the fee provision and the “injunctive relief without a bond” provision “is the employer’s entitlement to seek an injunction to prevent the employee from breaching the non-compete clause of the contract” and that, “[a]lthough the paragraph specifies that the ‘Employer shall be entitled to seek and obtain injunctive relief without the posting of a bond to restrain the Employee,’ the words ‘without the posting of a bond’ can be eliminated, and valid legal obligations remain.”   Premier Compounding Pharmacy, Inc. v. Larson, __ So.3d __ (Fla. 4th DCA, No. 4D17-1318, 6/13/2018), 2018 WL 2974515.

Fee award based on F.S. 57.105(7) reversed because entity against whom fees were awarded was not party to contract containing fee provision.  [Added 7/17/18]  --  Azalea Trace, Inc. v. Matos, __ So.3d __ (Fla. 1st DCA, No. 1D17-753, 6/4/2018), 2018 WL 2472351.

Proposal for settlement invalid under Attorneys’ Title Ins. Fund v. Gorka because it did not permit each offeree to independently evaluate and accept it.  [Added 6/22/18]  --   Pacheco v. Gonzalez, __ So.3d __ (Fla. 3d DCA, No. 3D16-355, 5/16/2018), 2018 WL 2224163.

Court erred in not awarding prevailing party fees to party who succeeded in obtaining injunction but failed to recover on claim for money damages.  [Added 6/4/18]  -- Coconut Key Homeowner’s Ass’n, Inc. v. Gonzalez, __ So.3d __ (Fla. 4th DCA, Nos. 4D17-739, 4D17-1749, 5/9/2018), 2018 WL 2126726.

Supreme Court holds that filing of motion to enlarge time under Fla.R.Civ.P. 1.090 does not toll 30-day deadline for accepting proposal for settlement.  [Added 6/1/18]  --  Koppel v. Ochoa, __ So.3d __ (Fla., No. SC16-1474, 5/17/2018), 2018 WL 2251709.

ingle, joint proposal for settlement was invalid because it did not apportion amount attributable to each offeror in situation where offerors’ liability was not exclusively derivative in nature.  [Added 4/30/18]   --  Peltz v. Trust Hospitality International, LLC, __ So.3d __ (Fla. 3d DCA, No. 3D17-428, 4/11/2018), 2018 WL 1733924.

Offer of judgment not ambiguous because it included settlement of fee claims when complaint did not seek fee award.  [Added 4/23/18]  --  Castillo v. Costco Wholesale Corp., __ So.3d __ (Fla. 3d DCA, No. 3D16-2185, 2/21/2018), 2018 WL 988346.

Judgment awarding fees that included contingent fee multiplier reversed despite lack of transcript of fee hearing because there was no finding whether relevant market required multiplier.  [Added 4/15/18]  --  Citizens Property Ins. Corp. v. Anderson, __ So.3d __ (Fla. 2d DCA, No. 2D16-616, 2/14/2018), 2018 WL 844568.

Fees properly denied to borrowers who persuaded court that foreclosing bank was not  signatory to note or mortgage and thus was not entitled to enforce them.  [Added 4/10/18]  --  Sabido v. Bank of New York Mellon, __ So.3d __ (Fla. 4th DCA, No. 4D16-2944, 2/7/2018), 2018 WL 735950.

Law firm denied fees under contingent fee agreement that did not comply with Bar rules, but may pursue recovery in quantum meruit.  [Added 4/5/18]  --  O’Malley v. Freeman, __ So.3d __ (Fla. 4th DCA, No. 4D17-1500, 4/4/2018), 2018 WL 1617704.

Release served with proposal for settlement was not ambiguous even though, due to typographical error, release contained names of non-parties.  [Added 4/2/18]  --  Sanchez v. Cinque, __ So.3d __ (Fla. 4th DCA, No. 4D16-2530, 2/14/2018), 2018 WL 851366.

Court erred in awarding prevailing party fees under F.S. 57.105(7) to party that purchased subject property from bankruptcy trustee after borrowers filed for bankruptcy.  [Added 3/21/18]  --  PNC Bank N.A. v. MDTR, LLC, __ So.3d __ (Fla. 5th DCA, No. 5D16-2887, 2/2/2018), 2018 WL 663792.

Dismissal of mortgage foreclosure action without prejudice will support award of prevailing party fees under F.S. 57.105(7).  [Added 3/14/18]  --  Romaguera v. Trust Mortgage, LLC, __ So.3d __ (Fla. 3d DCA, No. 3D16-1482, 1/17/2018), 2018 WL 443150.

Law firm that did not file notice of charging lien with court before action was voluntarily dismissed failed to timely perfect lien.  [Added 3/1/18]  --  Greenberg Traurig, P.A. v. Starling, __ So.3d __ (Fla. 2d DCA, No. 2D17-772, 1/5/2018), 2018 WL 300894.

Where underlying contract was void due to forged signatures, attorney’s fee provision will not support fee award under F.S. 57.105(7).  [Added 2/27/18]  --  Wells Fargo Bank N.A. v. Bird, __ So.3d __ (Fla. 5th DCA, No. 5D16-669, 1/5/2018), 2018 WL 300655.

Law firm’s assignment of client’s debt for legal fees to third party violates Rules of Professional Conduct and is unenforceable, per U.S. District Court.  [Added 2/23/18]  -- Collectarius Financial, LLC v. Statebridge Co., LLC, __ F.Supp.3d __ (M.D. Fla., No. 8:18-cv-137-T-24 AEP, 2/9/2018), 2018 WL 807041.

Fifth DCA recedes from its prior decision and rules that appellate attorney’s fees may be awarded in paternity actions.  [Added 2/21/18]  --  McNulty v. Bowser, __ So.3d __ (Fla. 5th DCA, No. 5D16-3330, 1/5/2018), 2018 WL 300230.

Resolving conflict among DCAs, Supreme Court holds that 57.105 fee award is permissible in dating, repeat, and sexual violence injunction actions filed under F.S. 784.046.  [Added 2/13/18]  --  Lopez v. Hall, __ So.3d __ (Fla., No. SC16-1921, 1/11/2018), 2018 WL 369123.

Where "true relief sought” is money damages, party cannot escape fee award under offer of judgment rule merely by adding declaratory judgment count to complaint.  [Added 2/8/18]  --  Tower Hill Signature Ins. Co. v. Javellana, __ So.3d __ (Fla. 3d DCA, Nos. 3D16-2526, 3D16-2492, 12/13/2017), 2017 WL 6347070.

Aligning with Second and Fourth DCAs, First DCA rules that  proposal for settlement need not be served in compliance with Fla.R.Jud.Admin. 2.516.  [Added 2/5/18]  --  Oldcastle Southern Group, Inc. v. Railworks Track Systems, Inc., __ So.3d __ (Fla. 1st DCA, No. 1D17-48, 12/21/2017), 2017 WL 6521324.

Law firm and client may not be held jointly and severally liable for fee award ordered as sanction under F.S. 57.105(1).  [Added 1/17/18]  --  Austin & Laurato, P.A. v. State Farm Florida Ins. Co., __ So.3d __ (Fla. 5th DCA, No. 5D15-3616, 11/17/2017), 2017 WL 5503837.

Rejecting federal courts’ approach, Supreme Court reaffirms that under Florida law there is not a “rare” and “exceptional” circumstances exception to application of contingency fee multiplier to prevailing party fee award.  [Added 1/9/18]  --   Joyce v. Federated National Ins. Co., 228 So.3d 1122 (Fla. 2017).

Retaining lien was not enforceable against funds deposited in lawyer's trust account for undifferentiated alimony and child support arrearages.  [Added 12/10/17]  --  Lisa Marie Macci, P.A. v. Jaeger, __ So.3d __ (Fla. 4th DCA, No. 4D16-2828, 12/6/2017), 2017 WL 6029665.

Hours that lawyer worked while at his former law firm must be considered when court awards fees under F.S. 627.428, even though firm withdrew from client’s case and thus forfeited right to fee.   [Added 11/19/17]  --  Forthuber v. First Liberty Ins. Corp., __ So.3d __ (Fla. 5th DCA, No. 5D16-2599, 11/17/2017), 2017 WL 5503828.

If the contract so provides, a prevailing party may be awarded fees for litigating the amount of fees to be recovered.  [Added 10/30/17]  --  Trial Practices, Inc. v. Hahn Loeser & Parks, LLP, __ So.3d __ (Fla. 2d DCA, Nos. 2D13-6051, 2D14-86, 10/25/2017) (on clarification), 2017 WL 4798944.

Court may consider party’s litigation conduct in awarding fees in domestic case under F.S. 61.16, even if party that benefits has superior financial position.  [Added 9/27/17]  --  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]  --  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]  --  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]  --  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 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]  --  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]  --  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]  --  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]  --  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]  --  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]  --  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]  --  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]  --  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]  --  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]  --  Paul v. Avrahami, __ So.3d __ (Fla. 4th DCA, No. 4D16-1456, 4/12/2107), 2017 WL 1363963.

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]  --  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]  --  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]  --  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 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 between parties.  [Added 4/15/17]  --  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]  --  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]  --  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]  --  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]  --  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.  --    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]  --  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]  --  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]  --  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]  -- 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 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]  --  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]  --  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 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 v. Pickett Downs Unit IV Homeowner’s Ass’n, __ So.3d __ (Fla. 5th DCA, No. 5D15-4043, 12/2/2016), 2016 WL 7176752.

Not necessary to be prevailing party in order to obtain fee award in Florida Birth-Related Neurological Injury Compensation Association dispute.  [Added 12/31/16]     Lampert v. Florida Birth-Related Neurological Injury Compensation Ass’n, __ So.3d __ (Fla 1st DCA, No. 1D-4815, 11/14/2016), 2016 WL 6684172.

Party seeking appellate fees as sanction pursuant to F.S. 57.105 must comply with Fla.R.App.P. 9.410(b), not rule 9.400.  [Added 12/21/16]     Jarrette Bay Investments Corp. v. BankUnited, N.A., __ So.3d __ (Fla. 3d DCA, No. 3D15-1283, 11/30/2016), 2016 WL 6992220.

Florida guardianship law authorizes fee award to a lawyer for emergency temporary guardian, even where ultimately there is no judicial determination of incapacity.  [Added 12/12/16]    In re Guardianship of Beck, __ So.3d __ (Fla. 2d DCA, No. 2D15-239, 11/18/2016) (on rehearing), 2016 WL 6834145.

Third DCA affirms denial of fees based on proposal for settlement determined to be ambiguous when read together with an attached general release.   [Added 12/9/16]    South Florida Pool and Spa Corp. v. Sharpe Investment Land Trust Number J, __ So.3d __ (Fla. 3d DCA, No. 3D15-102, 11/16/2016), 2016 WL 6778649.

Court erred by applying wrong standard in ruling on motion for fees under F.S. 57.105.  [Added 12/2/16]     Infiniti Employment Solutions, Inc. v. MS Liquidators of Arizona, LLC, __ So.3d __ (Fla. 5th DCA, No. 5D14-583, 11/4/2016), 2016 WL 6664075.

Supreme Court decides that offers of settlement made to 3 related defendant entities may not be aggregated before being compared to final judgment for purposes of fee award under F.S. 768.79.   [Added 11/28/16]    Anderson v. Hilton Hotels Corp., __ So.3d __ (Fla., SC15-124, 11/3/2016), 2016 WL 6538663.

Supreme Court rules that, if fees are not sought in pleadings, offer of settlement is not invalid for not stating whether offer includes fees.  [Added 11/10/1]    Kuhajda v. Borden Dairy Co. of Alabama, LLC, __ So.3d __  (Fla., No. SC15-1682, 10/20/2016), 2016 WL 6137289,

Employer/carrier not liable for workers comp fees if it accepts responsibility for medical expenses within 30 days after claimant files petition, even if those expenses are not paid within 30-day period[Added 11/8/16]    Sansone  v. Frank Crum / Frank Winston Crum Ins., Inc., __ So.3d __ (Fla. 1st DCA, No. 1D15-5116, 11/2/2016), 2016 WL 6496630

Clause in arbitration agreements requiring each party to pay own fees violates public policy because it negates statutory fee-shifting provision.  [Added 11/4/16]    Hochbaum v. Palm Garden of Winter Haven, LLC, __ So.3d __ (Fla. 2d DCA, No. 2D16-89, 10/5/2016), 2016 WL 5806210.

Claimant’s lawyer cannot be required to file verified motion for fees and costs after JCC has dismissed all of claimant’s pending petitions for benefits.  [Added 9/27/16]  Law Offices of William F. Souza v. Truly Nolen, Inc., __ So.3d __ (Fla. 1st DCA, No. 1D16-118, 9/9/2016), 2016 WL 4723678.

“Passing reference” to equitable relief in complaint does not render offer of judgment in case invalid.  [Added 9/13/16]     Faith Freight Forwarding Corp. v. Anias, __ So.3d __ (Fla. 3d DCA, No. 3D14-2653, 9/28/2016) (on rehearing), 2016 WL _______.

In child custody action, court improperly awarded fees to father based on mother’s “selfish”  attempt to change custody where mother did not have ability to pay.   [Added 9/7/16]    Rogers v. Wiggins, __ So.3d __ (Fla. 2d DCA, No. 2D15-991, 8/24/2016), 2016 WL 4468093.

On rehearing, Fourth DCA denies appellate fees to defendants under FDUTPA where they did not prevail on all pleaded legal theories in case.  [Added 9/3/16]   Banner v. Law Office of David J. Stern, P.A., __ So.3d __ (Fla. 4th DCA, No. 4D14-1440, 8/24/2016) (on rehearing), 2016 WL 4493351.

First DCA reverses denial of stipulated quantum meruit attorney’s fee in worker’s compensation case.  [Added 9/2/16]  Salzman v. Reyes, __ So.3d __ (Fla. 1st DCA, No. 1D16-593, 8/18/2016), 2016 WL 4396040.

Appellate fees may be conditionally granted to policyholders under F.S. 627.428, regardless of whether proceeding is appeal or petition for writ of certiorari.  [Added 8/19/16]     Allen v. State Farm Florida Ins. Co., __ So.3d __ (Fla. 2d DCA, No. 2D15-3114, 8/17/2016), 2016 WL 4375612.

Court erred in denying fees to former wife in dissolution case that accrued after her “unreasonable” rejection of settlement offer.  [Added 8/12/16]    Palmer v. Palmer, __ So.3d __ (Fla. 1st DCA, No. 1D15-3325, 8/9/2016), 2016 WL _______.

Court erred in denying fees to devisee of real property under will, because by successfully defending action concerning the property he effectuated testator’s intent.   [Added 8/8/16]    Hampton v. Estate of Allen, __ So.3d __ (Fla. 5th DCA, No. 5D15-2250, 8/5/2016), 2016 WL _______.

Certifying conflicts with other Districts, First DCA holds that trial court erred in ruling that section 57.105 fee award could not be entered in action for injunction for protection against violence.   [Added 8/5/16]    Hall v. Lopez, __ So.3d __ (Fla. 1st DCA, No. 1D15-0531, 7.28.2016), 2016 WL 4036093.

On its own initiative, court may order party to pay 57.105(1) fees when motion is filed by another party but moving party did not comply with safe harbor requirements, provided court is not “simply adopting the moving party’s defective motion.”   [Added 7/11/16]    Watson v. Stewart Tilghman Fox & Bianchi, P.A., __ So.3d __ (Fla. 4th DCA, No. 4D14-4599, 6/29/2016), 2016 WL 3540959.

Fifth DCA reverses fee award, ruling that proposals for settlement served on 2 defendants were ambiguous as to whether acceptance would resolve claims against both or only one defendant.   [Added 7/7/16]     Nunez v. Allen, __ So.3d __ (Fla. 5th DCA, No. 5D14-4386, 6/24/2016), 2016 WL 3452511.

Prevailing party fees under F.S. 57.105(7) may be awarded only when party seeking fees both prevails and is party to contract containing fee provision.  [Added 7/1/16]     Florida Community Bank, N.A. v. Red Road Residential, LLC, __ So.3d __ (Fla. 3d DCA, No. 3D15-2039, 6.8.2016), 2016 WL 3176813.

Court erred in applying multiplier to fee award in insurance litigation, where there was no showing that clients were unable to find counsel to represent them through trial absent multiplier.   [Added 6/30/16]    Florida Peninsula Ins. Co. v. Wagner, __ So.3d __ (Fla. 2d DCA, Nos. 2D15-1152, 2D15-1790, 6/1/2016), 2016 WL 306065.

Fourth DCA discusses standard to be used when court considers awarding fees under F.S. 57.105 for allegedly frivolous claim.  [Added 6/28/16]  Trust Mortgage, LLC. v. Ferlanti, __ So.3d __ (Fla. 4th DCA, No. 4D15-1437, 6/1/2016), 2016 WL 3065669

Proposal for settlement did not support motion for fees because it required party’s counsel to extinguish all third-party claims, even though there was no signature block for counsel.  [Added 6/15/16]    Florida Peninsula Ins. Co. v. Brunner, __ So.3d __ (Fla. 3d DCA, No. 3D15-1677, 6/8/2016), 2016 WL 3181908.

Per Second DCA, filing Fla.R.Civ.P. 1.090 motion to enlarge time to accept proposal for settlement does not automatically toll 30-day period for accepting proposal.   [Added 6/4/16]    Ochoa v. Koppel, __ So.3d __ (Fla. 2d DCA, No. 2D14-1866, 5/20/2016), 2016 WL 2941099.

Proposal for settlement under F.S. 768.79 and Fla.R.Civ.P. 1.442 that did not mention form of release or dismissal was not ambiguous and thus was enforceable.  [Added 5/13/16]    Manuel Diaz Farms, Inc. v. Delgado, __ So.3d __ (Fla. 3d DCA, No. 3D15-86, 5/11/2016), 2016 WL _______.

Insurer whose policy gave it the right to control insured’s defense is liable for fees imposed under F.S. 768.79 after insurer rejected proposal for settlement.  [Added 5/12/16]    Government Employees Ins. Co. v. Macedo, __ So.3d __ (Fla. 1st DCA, No. 1D15-2896, 5/6/2016), 2016 WL 2610605.

Fee award under F.S. 768.79 and Fla.R.Civ.P. 1.442 based on unaccepted proposals for settlement reversed because offeror failed to strictly comply with rule 1.442, which requires that proposal expressly state “whether attorney’s fees are part of the legal claim.”   [Added 5/7/16]    Deer Valley Realty, Inc. v. SB Hotel Associates LLC, __ So.3d __ (Fla. 4th DCA, Nos. 4D14-2051, 4D15-830, 4/27/2016), 2016 WL 1660619. 

          [See also Maines v. Fox, __ So.3d – (Fla. 1st DCA, Nos. 1D-14-5917, 1D15-0739, 5/3/2016), 2016 WL 1741950 (proposals unenforceable because ambiguities “prevented the proposals from strictly comporting with the requirements of rule 1.442 that proposals for settlement ‘state whether the proposal includes attorneys’ fees and whether attorneys’ fees are part of the legal claim’”).]

Defendant first sued as  corporation, then as LLC when plaintiff amended complaint, entitled to recover fees under F.S. 768.79 based on proposal for settlement made by corporation defendant despite fact that defendant actually prevailed as LLC.  [Added 5/6/16]    Vanguard Car Rental USA, LLC v. Suttles, __ So.3d __ (Fla. 3d DCA, No. 3D15-723, 4/27/2016), 2016 WL 1658764.

Supreme Court holds that workers’ compensation fee statute is unconstitutional.  [Added 4/28/16]    Castellanos v. Next Door Co., __ So.3d __ (Fla., No. SC13-2082, 4/28/2016), 2016 WL _______.

Offer of judgment was valid and enforceable where offeror made claims for both monetary and non-monetary relief, but did not actually pursue non-monetary damages in litigation.   [Added 4/28/16]    MYD Marine Distributor, Inc. v. International Paint Ltd., __ So.3d __ (Fla. 4th DCA, Nos. 4D13-2496, 4D13-2671, 4D13-3685, 4D13-4530, 4D13-4779, 4/13/2016), 2016 WL 1445590.

Court properly awarded fees as sanction for party’s misconduct that resulted in mistrial but erred in including time spent for subsequent trials.  [Added 4/27/16]    Public Health Trust of Miami-Dade County v. Denson, __ So.3d __ (Fla. 3d DCA, No. 3D14-2953, 4/13/2016), 2016 WL 1445421.

Defendant who successfully defeated claim on ground that she had no contract with plaintiff cannot claim fees based on contract.  [Added 4/26/16]     HFC Collection Center, Inc. v. Alexander, __ So.3d __ (Fla. 5th DCA, No. 5D15-1177, 4/22/2016) (on rehearing), 2016 WL 1600324.

First DCA declares fee provisions in workers’ compensation law unconstitutional on First Amendment grounds.  [Added 4/22/16]     Miles v. City of Edgewater Police Department, __ So.3d __ (Fla. 1st DCA, No. 1D-15-0165, 4/20/2016), 2016 WL _______.

Contingency multiplier not permissible when court awarded fees against insurer, where attorney-client contract was nota true contingency agreement.   [Added 4/21/16]   Citizens Property Ins. Co. v. River Oaks Condominium II Association, Inc., __ So.3d __ (Fla. 2d DCA, No. 2D13-4331, 3/30/2016), 2016 WL 1234706.

Court improperly imposed section 57.105 sanctions on party for making claims without factual support, after allowing claim to survive  summary judgment motion and motion for involuntary dismissal.   [Added 4/19/16]   --  Casey v. Jensen, __ So.3d __ (Fla. 2d DCA, No. 2D14-3491, 3/23/2016), 2016 WL 1125180.

In dispute over fee award under F.S. 627.428, insurer had no standing to advance construction of contingent fee agreement to which it was neither party nor intended beneficiary.  [Added 4/16/16]     Companion Property & Casualty Ins. Co. v. Category 5 Management Group, LLC, __ So.3d __ (Fla. 1st DCA, No. 1D14-583, 3/17/2016), 2016 WL 1051790.

Second DCA upholds denial of a petition seeking approval of continent fee contract in excess of Bar’s maximum fee schedule.  [Added 4/8/16]     Mahany v. Wright’s Healthcare & Rehabilitation Center, __ So.3d __ (Fla. 2d DCA, No. 2D15-1553, 4/1/2016), 2016 WL 1273256.

Supreme Court denies appellate attorney’s fees to prevailing parties in legislative redistricting case.  [Added 4/8/16]     League of Women Voters of Florida v. Detzner  (Fla., No. SC14-1905, 3/31/2016) (order denying fee motion).

First DCA denies prevailing parties fees in legislative redistricting case, applying “American Rule” and declining to adopt private attorney general doctrine.   [Added 4/5/16]     League of Women Voters of Florida v. Detzner, __ So.3d __ (Fla. 1st DCA, No. 1D14-5614, 3/24/2016), 2016 WL 1165421.

Court erred in not awarding prejudgment interest as part of an award of appellate attorney’s fees under F.S. 57.105.  [Added 3/14/16]    Wells v. Halmac Development, Inc., __ So.3d __ (Fla. 3d DCA, No. 3D12-3039, 2/3/2016), 2016 WL 403181.

First DCA constrained to strictly construe offer of judgment rule despite alleged “absurd, unjust result,” and certifies conflict to Supreme Court.  [Added 2/14/16]    Colvin v. Clements and Ashmore, P.A.,__ So.3d __ (Fla. 1st DCA, No. 1D15-1966, 1/15/2016), 2016 WL 167010.

In workers' compensation case, claimant was entitled to appellate fees after E/C filed an appeal, obtained extension to file initial brief, then dismissed appeal without filing brief.   [Added 1/4/16]    Thyssenkrupp Elevator Corp. v. Blackmon, __ So.3d __ (Fla. 1st DCA, No. 1D15-2515, 12/31/15), 2015 WL _______.

Charging lien does not apply to award of past due undifferentiated support accruing during pendency of divorce proceedings.  [Added 12/29/15]     Jaeger v. Jaeger, __ So.3d __ (Fla. 4th DCA, No. 4D15-1243, 12/16/2015), 2015 WL 8950258.

Court erred in granting former client’s motion to strike law firm’s charging and retaining lien without holding evidentiary hearing.  [Added 12/28/15]    Parrish & Yarnell, P.A. v. Spruce River Ventures, LLC, __ So.3d __ (Fla. 2d DCA, No. 2D14-3239, 12/11/2015), 2015 WL 8519438.

Litigation between condo association and unit owner is not subject to “only one prevailing party” rule for purposes of fee awards, per  Fourth DCA.  [Added 12/22/15]  Environ Towers I Condominium Ass’n, Inc. v. Hokenstrom, __ So.3d __ (Fla. 4th DCA, No. 4D14-3376, 11/18/2015), 2015 WL 7273418.

Court erred in awarding guardian’s attorney less than full fee on gross recovery as specified in contingent fee contract.  [Added 12/22/15]    Hensley Chalfant, P.A. v. Guardianship of Flannigan, __ So.3d __ (Fla. 2d DCA, No. 2D13-3077, 11/18/2015), 2015 WL 7273373.

Court properly awarded fees to insured under F.S. 627.428 after auto insurer voluntarily dismissed dec action, but erred in awarding fees to insured’s passenger who sustained injuries and was treated.  [Added 12/11/15]     Explorer Ins. Co. v. Cajusma, __ So.3d __ (Fla. 5th DCA, Nos. 5D14-2608, 5D14-2934, 11/6/2015), 2015 WL 6757633.

Lawyer added as co-counsel in contingent fee case fails in claim for portion of fee, which is awarded in full to first lawyer because  first lawyer’s contract with client was never modified.  [Added 12/10/15]     Anderson v. 50 State Security Service, Inc., __ So.3d __ (Fla. 3d DCA, No. 3D14-2540, 11/4/22015), 2015 WL 6735852.

Supreme Court addresses calculation of fees in eminent domain cases where condemning authority causes excessive litigation, ruling that application of formula in F.S. 73.092(1) is constitutionally deficient.   [Added 12/2/15]    Joseph B. Doerr Trust v. Central Florida Expressway Authority, __ So.3d __ (Fla., No. SC14-1007, 11/5/2015), 2015 WL 6748858.

Offer made by DOT under “Early Acquisition Program” was offer made outside  eminent domain power and thus cannot be used as basis for calculating fees under F.S. 73.092.  [Added 11/25/15]   General Commercial Properties, Inc. v. Florida Dept. of Transportation, __ So.3d __ (Fla. 4th DCA, No. 4D14-0699, 10/14/2015), 2015 WL 5948530.

Court did not err in awarding fees to insureds who prevailed against insurer’s counterclaim despite losing on their breach of contract claim.  [Added 11/25/15]    Citizens Property Ins. Corp. v. Bascuas, __ So.3d __ (Fla. 3d DCA, Nos. 3D14-2434, 3D1-1549, 10/14/2015), 2015 WL 5964909.

Court erred in denying fees in dissolution case on ground that party seeking fees did not introduce testimony from lawyer who actually performed services.  [Added 11/12/15]     Cozzo v. Cozzo, __ So.3d __ (Fla. 3d DCA, No. 3D15-133, 10/7/2015), 2015 WL 5829812.

Fourth DCA addresses the definition of “contingency fee” in rejecting argument that no fee was due law firm under agreement for payment of earned fees.  [Added 11/11/15]    Wright v. Guy Yudin & Foster, LLP, __ So.3d __ (Fla. 4th DCA, No. 4D14-103, 10/7/2015), 2015 WL 5827944.

Defendant who successfully defeated claim on ground that she had no contract with plaintiff cannot claim attorney’s fees based on the contract.  [Added 11/9/15]     HFC Collection Center, Inc. v. Alexander, __ So.3d __ (Fla. 5th DCA, No. 5D15-1177, 10/30/2015), 2015 WL 6554404.

Judge of Compensation Claims erred in denying motion to strike employer/carrier’s response to claimant’s motion fees and thus had no basis on which to reduce amount of fees awarded.  [Added 11/2/15]   Nelson v. Pharmerica, __ So.3d __ (Fla. 1st DCA, No. 1D15-1582, 10/29/2015), 2015 WL 6388023.

Twice-served motion for F.S. 57.105 sanctions complied with 21-day safe harbor provision, despite certificate of service facially indicating non-compliance.  [Added 10/14/15]    Lopez v. Department of Revenue, __ So.3d __ (Fla. 3d DCA, No. 3D14-399, 9/30/2015), 2015 WL 5714695.

Proposal for settlement was not ambiguous just because it recited that offeror was willing to consider suggested changes to release attached to proposal.  [Added 9/9/15]   Wallen v. Tyson, __ So.3d __ (Fla. 5th DCA, No. 5D14-1564, 9/4/2015), 2015 WL 5165528.

Court erred in denying fees under offer of judgment statute one ground that another party actually paid  offeror’s attorney’s fees.  [Added 9/7/15]     Key West Seaside, LLC v. Certified Lower Keys Plumbing, Inc., __ So.3d __ (Fla. 3d DCA, No. 3D13-2589, 9/2/2015), 2015 WL 5132383.

In dissolution case, trial court erred in not awarding fees to husband based on wife’s unsuccessful challenge of prenuptial agreement that provided for fees if party sought to have agreement voided.  [Added 9/4/15]     Berg v. Young, __ So.3d __ (Fla. 4th DCA, No. 4D13-2364, 9/2/2015), 2015 WL 5125418.

Offer of judgment is ambiguous because mutual releases contain names of individual lawyers who are members of law firms that are parties to action.  [Added 8/22/15]      Michele K. Feinzig, P.A. v. Deehl & Carlson, P.A., __ So.3d __ (Fla. 3d DCA, Nos. 3D14-2539, 3D14-904, 8/12/2015), 2015 WL 4747876.

Certifying conflict, First DCA rules that offer of judgment was ambiguous because it failed to state whether it included fees, even though fees were not sought in complaint.  [Added 8/20/15]     Borden Dairy Co. of Alabama, LLC v. Kuhajda, __ So.3d __ (Fla. 1st DCA, No. 1D14-4706, 8/14/2015), 2015 WL 4774629.

Court departed from essential requirements of law in ordering law firm to give former client immediate access to firm’s files, despite firm’s assertion of retaining liens on files.  [Added 8/6/15]     Conde & Cohen, P.L. v. Grandview Palace Condominium Ass’n, Inc., __ So.3d __ (Fla. 3d DCA, No. 3D15-1109, 8/5/2015.

Court abused its discretion in ordering former husband to pay former wife’s fees after equitably distributing parties’ property and equalizing income through alimony award.  [Added 8/5/15]     Hutchinson v. Hutchinson, __ So.3d __ (Fla. 1st DCA, No. 1D15-232, 7/29/2015), 2015 WL 4557045.

Third DCA sanctions lawyer and her client under F.S. 57.105 and Fla.R.App.P. 9.140 for making baseless assertions in brief.   [Added 7/28/15]      Aspen Air Conditioning, Inc. v. Safeco Ins. Co. of America, __ So.3d __ (Fla. 3d DCA, No. 3D14-1592, 7/22/2015), 2015 WL 4464404.

Motion for extension of time to accept settlement proposal that was never set for hearing did not toll time for acceptance of proposal.  [Added 7/27/15]    Three Lions Construction, Inc. v. the Namm Group, Inc., __ So.3d __ (Fla. 3d DCA, No. 3D14-880, 7/22/2015), 2015 WL 4464494.

Fourth DCA rejects law firm’s contention that $100,000 fee in $10 million claims bill for its client was an unconstitutional impairment of the attorney-client contract.   [Added 7/22/15]     Searcy Denney Scarola Barnhart & Shipley, P.A. v. State, __ So.3d __ (Fla. 4th DCA, No. 4D13-3497, 7/15/2015), 2015 WL 4269031.

Court erred in granting prevailing party fees to party who secured voluntary dismissal of complaint against them by paying amount in dispute.  [Added 7/21/15]     Blue Infiniti, LLC v. Wilson, __ So.3d __ (Fla. 4th DCA, Nos. 4D14-813, 4D14-887, 7/8/2015), 2015 WL 4098895

Proposal for settlement under F.S. 768.79 not deficient because it failed to address loss of consortium claim maintained by offeree’s spouse or failed to apportion amount attributable to party who was solely vicariously liable.  [Added 7/17/15]      Miley v. Nash, __ So.3d __ (Fla. 2d DCA, No. 2D14-930, 7/10/2015).

Payment of attorney’s fees alone will not extend the statute of limitations applicable to workers’ compensation claims.  [Added 7/15/15]    Sanchez v. American Airlines, __ So.3d __ (Fla. 1st DCA, No. 1D14-4907, 7/14/2015).

Order imposing charging lien reversed and remanded because court failed to make necessary findings as to amount and reasonableness of fees.  [Added 7/14/15]   San Pedro v. Law Office of Paul Burkhart, __ So.3d __ (Fla. 4th DCA, No. 4D14-1849, 7/1/2015).

Requirement that court make express findings of bad faith when awarding fees as sanction under inherent authority applies regardless of whether award is against party or party’s lawyer.  [Added 6/23/15]     Goldman v. Estate of Goldman, __ So.3d __ (Fla. 3d DCA, No. 3D14-98, 6/17/2015), 2015 WL 3759598.

Lawyer’s charging lien cannot include expenses incurred in prosecuting lien, and may not enforced against alimony award if doing so would deprive former spouse of daily sustenance or minimal necessities of life.  [Added 6/17/15]     Tucker v. Tucker, __ So.3d __ (Fla. 4th DCA, No. 4D14-105, 5/27/2015), 2015 WL 3396664.

Law firm’s charging lien does not take priority over attorney’s fee indemnification provision in spousal agreement entered into before law firm was hired.  [Added 6/8/15]   Christopher N. Link, P.A. v. Rut, __ So.3d __ (Fla. 4th DCA, No. 4D12-4320, 5/20/2015), 2015 WL 2405650.

Fee award under F.S. 61.16 requires specific factual findings regarding financial need and ability to pay.  [Added 5/9/15]    Beckstrom v. Beckstrom, __ So.3d __ (Fla. 4th DCA, No. 4D14-929, 4/29/2015), 2015 WL 1934558.

Proposal for settlement under F.S. 768.79 not deficient because it failed to address loss of consortium claim maintained by offeree’s spouse.  [Added 5/8/15]   Miley v. Nash, __ So.3d __ (Fla. 2d DCA, No. 2D14-930, 4/29/2015), 2015 WL 1930290.

Fifth DCA addresses meaning of term “settled” in aee division agreement among law firms.  [Added 4/25/15]   Burlington & Rockenbach, P.A. v. Law Offices of E. Clay Parker, __ So.3d __ (Fla. 5th DCA, No. 5D13-2341, 4/17/2015), 2015 WL 1736915.

Supreme Court holds that settlement proposal by a single offeror toa single offeree that resolves claims of or against other parties is joint proposal subject to apportionment requirement of Fla.R.Civ.P. 1.442.  [Added 4/25/15]     Audiffred v. Arnold, __ So.3d __ (Fla., No. SC12-2377, 4/16/2015), 2015 WL 1724250. 


Supreme Court holds that apportionment of settlement amount is required where offer of judgment is made by or to multiple parties.  [Added 4/25/15]  Pratt v. Weiss, __ So.3d __ (Fla., No. SC12-1783, 4/16/2015), 2015 WL 1724574.

Defendants entitled to prevailing party fees for successfully defending plaintiff’s contract claim, despite not prevailing on counterclaim.  [Added 4/20/15]   Padgett v. Kessinger, __ So.3d __ (Fla. 4th DCA, No. 4D14-229, 4/8/2015).

Statutory worker’s comp sliding scale fee formula applies separately to each lawyer involved in case.  [Added 4/18/15]    Urguelles v. El Oasis Cafe and Technology Ins. Co., __ So.3d __ (Fla. 1st DCA, No. 1D14-5333, 4/15/2015).

Law firm hit with section 57.105 sanctions for trying to collect fee against homestead property of client’s former spouse.  [Added 41/3/15]    Law v. Law, __ So.3d __ (Fla. 3d DCA, No. 3D14-911, 4/1/2015), 2015 WL 1449763.

Prevailing party attorney’s fees may not be awarded when a party successfully argues that the contract was void and unenforceable as a result of forged signatures.  [Added 4/12/15]   Bank of New York Mellon v. Mestre, __ So.3d __ (Fla. 5th DCA, No. 5D14-1649, 3/13/2015), 2015 WL 1071113.

Third DCA affirms that enforcement of charging lien in contingent fee case should take place in court where the underlying action is pending, but not until contingency has occurred.  [Added 4/12/15]   CK Regalis, LLC v. Thornton, __ So.3d __ (Fla. 3d DCA, No. 3D14-2289, 3/11/2015), 2015 WL 104400.

Fees may not be assessed against non-prevailing obligee ina Title IV-D child support enforcement action.  [Added 4/6/15]   Fla. Dept. of Revenue v. James, __ So.3d __ (Fla. 3d DCA, No. 3D13-211, 3/18/2015).

Insured entitled to statutory fees after insurer first disputed, then later paid, full claim under “stacked” uninsured motorist coverage.  [Added 4/3/15]   Shirtcliffe v. State Farm Mutual Auto. Ins. Co., __ So.3d __ (Fla. 5th DCA, No. 5D13-4553, 4/2/2105).

Current version of F.S. 57.105 does not require express finding of lawyer’s bad faith before fees can be assessed as sanction.  [Added 3/21/15]   Pronman v. Styles, __ So.3d __ (Fla. 4th DCA, No. 4D12-2279, 3/4/2015) (en banc).

Guardianship statute does not authorize court to order payment of fees from alleged incapacitated person when  guardianships not established.  [Added 3/20/15]    Steiner v. Guardianship of Steiner, __ So.3d __ (Fla. 2d DCA, No. 2D13-5083, 3/4/2015), 2015 WL 894259.

If words and numerals in rejected proposal for settlement do not match, proposal is ambiguous and will not support  fee award.  [Added 3/19/15]   Government Employees Ins. Co. v. Ryan, __ So.3d __ (Fla. 4th DCA, No. 4D13-2615, 3/11/2015).

Fifth DCA reverses fee award resulting from rejected offer for settlement, wheree offer was ambiguous as to whether it applied to potential contract claims related to tort claim at issue.  [Added 3/18/15]   Vogan v. Cruz, __ So.3d ___ (Fla. 5th DCA, No. 5D14-213, 3/6/2015).

Statutory formula for computing attorney’s fees in workers’ compensation cases can apply separately to more than one “claim” handled in a claimant’s case.  [Added 3/16/15]   Cortes-Martinez v. Palmetto Vegetable Co., LLC, __ So.3d __ (Fla. 1st DCA, No. 1D14-1825, 3/10/2015).

Order denying motion to cancel lawyer’s charging lien was not final order and thus may not be appealed.  [Added 12/31/14]   Bloomgarden v. Mandel, __ So.3d __ (Fla.3d DCA, No. 3D14-556, 12/31/2014).

Third DCA strikes motion for F.S. 57.105 fees as premature, when it was filed before opposing party filed any papers in case.  [Added 12/31/14]   Reznek v. Chase Home Finance, LLC, __ So.3d __ (Fla.3d DCA, No. 3D14-1499, 12/10/2014), 2014 WL 6990570.

Whether offer of judgment was made in good faith is based on objective criteria, and claim for fees based on offer does not waive attorney-client privilege or work product protection. [Added 12/29/14]  --  Butler v. Harter, __ So.3d __ (Fla. 1st DCA, No. 1D14-1342, 12/2/2014), 2014 WL 6755985.

“All or nothing” proposal for settlement made by multiple offerors to single offeree not ambiguous and thus valid.  [Added 12/24/14]  --  Duong v. Ziadie, __ So.3d __ (Fla. 4th DCA, No. 4D11-1492, 12/17/2014).

Fee award based on offer of judgment reversed because offer contained settlement condition beyond the offeree’s control.  [Added 12/24/14]  -- Paduru v. Klinkenberg, __ So.3d __ (Fla. 1st DCA, Nos. 1D5712m 1302562m 1304597, 12/17/2014).

Proposal for settlement made to minor plaintiff and her mother, who was acting as guardian, was not ambiguous and thus would support fee award under offer of judgment statute.  [Added 11/22/14]  --  DFC Tamarac, Inc. v. Jackson, __ So.3d __ (Fla. 4th DCA, No. 4D12-3065, 11/12/2014), 2014 WL 5834778.

Section 57.105 fee awards not available in workers’ compensation proceedings before Judge of Compensation Claims under Chapter 440.  [Added 11/21/14]  --  Lane v. Workforce Business Services, Inc., __ So.3d __ (Fla. 1st DCA, No. 1D14-0959, 11/12/2014), 2014 WL 5836805.

Order reserving jurisdiction to enforce settlement agreement containing attorney’s fees provision does not substitute for compliance with Fla.R.Civ.P. 1.525 (motion seeking fees must be served within 30 days of entry of judgment).  [Added 11/20/14]  --  Finnegan v. Compton, __ So.3d __ (Fla. 4th DCA, No. 4D13-4213, 11/19/2014).

Trial court erred in awarding fees against party under offer of judgment statute after party voluntarily dismissed one of two claims without prejudice.  [Added 11/11/14]  -- Scherer Construction & Engineering of Central Florida, LLC v. Scott Partnership Architecture, Inc., __ So.3d __ (Fla. 5th DCA, Nos. 5D13-1965, 5D13-3641, 11/7/2014).

Once appeals court remanded and directed trial court to fix amount of fees due under offer of judgment statute, it was too late for opposing party to claim proposal was not made in good faith.  [Added 10/15/14]  --  Arce v. Wackenhut Corp., __ So.3d __, 39 Fla.L.Weekly D1932 (Fla. 3d DCA, No. 3D12-2807, 9/10/2014), 2014 WL 4435949.

More than filing suit and obtaining payment of insurance claim is needed to support award of fees under "confession of judgment" doctrine.  [Added 10/9/14]  --  Omega Ins. Co. v. Johnson, __ So.3d __, 39 Fla.L.Weekly D1911 (Fla. 5th DCA, No. 5D13-1701, 9/5/2014), 2014 WL 4375189.

Proposal for settlement made earlier than 90 after a party was added as defendant will not support award of fees to that party under offer of judgment statute and rule.  [Added 9/15/14]  -- Design Home Remodeling Corp. v. Santana, __ So.3d __ (Fla. 3d DCA, No. 3D13-2852, 9/3/2014).

Court erred in awarding appellate fees as  discovery sanction authorization from appellate court.  [Added 9/9/14]  --  Bartow HMA, LLC v. Kirkland, __ So.3d __ (Fla. 2d DCA, No. 2D13-3483, 9/3/2014).

Error to award fees to former wife who had ample means to obtain counsel.  [Added 9/3/14]  -- Eldridge v. Eldridge, __ So.3d __ (Fla. 5th DCA, Nos. 5D12-3730, 5D13-118, 8/29/2014).

Appellate fees awarded under section 57.105 for filing of appeal that appellant (a law firm) “knew or should have known” was frivolous.  [Added 8/26/14]  --  Law Offices of Lynn W. Martin, P.A. v. Madson, __ So.3d __ (Fla. 1st DCA, No. 1D13-3071, 8/22/2104).

Court abused its discretion in ordering divorcing wife to pay fees that would result in “inequitable diminution” of her equitable distribution award.  [Added 8/23/14]  --  Chadbourne v. Chadbourne, __ So.3d __ (Fla. 1st DCA, No. 1D13-0039, 8/18/2014).

Court erred in ordering production of law firm’s file to its former client despite firm’s assertion of retaining lien.  [Added 8/19/14]  --  Heims v. G.M.S. Marine Service Corp., __ So.3d __ (Fla. 4th DCA, No. 4D14-673, 8/13/2014).

Court did not err in denying section 57.105 sanctions sought by defendant in malicious prosecution case who was granted summary judgment on qualified immunity grounds.  [Added 8/17/14]  --  Phillips v. Garcia, __ So.3d __ (Fla. 3d DCA, No. 3D13-262, 8/13/2014).

Court may not award F.S. 57.105 sanctions against party that voluntarily dismissed suit before running of 21-day safe harbor period.  [Added 8/17/14]  --  Pomeranz & Landsman Corp. v. Miami Marlins Baseball Club, L.P., __ So.3d __ (Fla. 4th DCA, No. 4D14-1237, 8/13/2014).

Court erred in denying a motion for attorney’s fees on “failure to plead” grounds.   [Added 8/6/14]  --  Tunison v. Bank of America, N.A., __ So.3d __ (Fla. 2d DCA, No. 2D13-3351, 7/30/2014).

First DCA reverses trial court’s award of costs as sanction under section 57.105.  [Added 7/23/14]  -- Jackmore v. Estate of Jackmore, __ So.3d __ (Fla. 1st DCA, No. 1D11-6680, 7/14/2014), 2014 WL 3407082.

Offer that would settle "any" claims for punitive damages does not meet "particularity" requirement and so will not support fee award under offer of judgment statute and rule.   [Added 7/17/14]  --  R.J. Reynolds Tobacco v. Ward, __ So.3d __ (Fla. 1st DCA, No. 1D13-0869, 6/24/2104).

First DCA declines to reverse unauthorized award of fees under section 57.105, concluding that fundamental error doctrine does not apply.   [Added 6/24/14]  --  Yau v. IWDWarriors, Corp., __ So.3d __ (Fla. 1st DCA, No. 1D13-1698, 6/11/2014).

Fee award under offer of judgment statute reversed because offer was to settle claims for both damages and equitable relief.   [Added 6/17/14]  --  Patel v. Nandigam, __ So.3d __ (Fla. 2d DCA, No. 2D12-5790, 6/11/2014), 2014 WL 2596181.

Strict compliance with e-service of process rules is required in order to obtain sanctions in the form of a fee award under section 57.105.   [Added 6/12/14]  --  Matte v. Caplan, __ So.3d __ (Fla. 4th DCA, No. 4D13-1903, 6/11/2014).

Supreme Court addresses timely filing of attorney’s fees requests in original appellate proceeding under Fla.R.App.P. 9.100.   [Added 6/3/14]  -- Advanced Chiropractic and Rehabilitation Center, Corp. v. United Auto. Ins. Co., __ So.3d __ (Fla., No. SC13-153, 5/29/2014).

Father’s lawyer in paternity action is ordered to disgorge funds held in his trust account as unearned fees. [Added 5/28/14]  --  Baratta v. Costa-Martinez, __ So.3d __ (Fla. 3d DCA, No. 3D14-206, 5/21/2014).

Trial court lacked jurisdiction to reopen case 6 years after final judgment to consider law firm’s charging lien.   [Added 5/20/14]  --  Brody v. Broward County Sheriff’s Office, __ So.3d __ (Fla. 4th DCA, No. 4D13-3733, 5/7/2014).

Section 57.105 fee sanctions against Husband who challenged orally stipulated martial settlement agreement on the basis of the children’s best interests are reversed.   [Added 4/30/14]  --  Puglisi v. Puglisi, __ So.3d __ (Fla. 5th DCA, No. 5D12-2572, 4/17/14).

Sitting en banc, Third DCA recedes from precedent and concludes that, per federal maritime law, fees may not be awarded under offer of judgment statute.   [Added 4/29/14]  --  Royal Caribbean Cruises, Ld. v. Cox, __ So.3d __ (Fla. 3d DCA, No. 3D09-2712, 4/9/2014).

Fourth DCA reaffirms its “nominal exposure” standard for determining whether an offer of judgment was made in good faith.  [Added 4/29/14]  --  Citizens Property Ins. Corp. v. Perez, __ So.3d __ (Fla. 4th DCA, No. 4D12-1412, 4/9/2014).

Error to deny charging lien on ground that successor counsel had to work long and hard before case settled years later.  [Added 3/19/14]  --  Courtney v. Hall-Edwards, 134 So.3d 543 (Fla. 3d DCA, No. 3D13-2662, 3/12/2014). 

Fifth DCA imposes 57.105 sanctions on party and her lawyer, noting that her arguments on appeal were as frivolous as her claim in the underlying case.  [Added 3/19/14] --  Badgley v. SunTrust Mortgage, Inc., 134 So.3d 559 (Fla. 5th DCA 3/14/2014). 

Proposal for settlement for $100 payable within 10 days of entry of dismissal with prejudice is not ambiguous and will support fee award.  [Added 3/10/14]  -- Ekonomides v. Sharaka,  133 So.3d 1174 (Fla. 2d DCA 3/5/2014). 

Payment of disputed insurance claim, “without more,” after insured files suit is sufficient to support fee award under section 627.428.  [Added 3/2/14] -- Do v. GEICO General Ins. Co., __ So.3d __ (Fla. 3d DCA, No. 3D12-1655, 2/26/2014). 

Fifth DCA observes that spouse’s offensive conduct during litigation, not during the marriage, may support section 57.105 sanctions.  [Added 2/20/14]  --   Shadwick v. Shadwick, __ So.3d __ (Fla. 2d DCA, No. 2D12-6235, 2/14/2014). 

Order granting an attorney’s charging lien is reversed as premature.  [Added 2/18/14]  --  Higdon v. Higdon, __ So.3d __ (Fla. 5th DCA, No. 5D13-1924, 2/14/2014), 2014 WL 560833. 

30-day requirement for fee and cost motions under Fla.R.Civ.P. 1.525 does not apply in adversary probate proceedings.  [Added 2/14/14]  --  Stone v. Stone, __ So.3d __ (Fla. 4th DCA, No. 4D12-2642, 2/12/2014), 2014 WL 537547. 

Although party failed to meet 21-day safe harbor provision for F.S. 57.105 sanctions, appellate court nevertheless imposed sanctions on its own motion.  [Added 2/14/14]  -- Albelo v. Southern Oak Ins. Co., __ So.3d __ (Fla. 3d DCA, No. 3D11-3012, 2/5/2014) (on rehearing). 

Court erred by considering court’s overall budgetary situation in determining reasonable fee in individual court-appointed criminal defense case.  [Added 1/27/14]  -- O’Donnell v. Justice Administrative Comm’n, __ So.3d __ (Fla. 4th DCA, No. 4D13-2926, 1/8/2014) (on reconsideration), 2014 WL 51469. 

Fees for travel time and time spent litigating entitlement to fees may be awarded under offer of judgment statute.  [Added 1/16/14]  -- Palm Beach Polo Holdings, Inc. v. Stewart Title Guaranty Co., __ So.3d __ (Fla. 4th DCA, No. 4D12-2640, 1/8/2014), 2014 WL 51697. 

Court erred in dissolution case by awarding fees that included counsel’s travel time.  [Added 1/10/14]  --  Hahamovitch v. Hahamovitch, __ So.3d __ (Fla. 4th DCA, No. 4D10-1077, 1/8/2014), 2014 WL 52761. 

Alleged incapacitated person may not be required to pay fees and costs where guardianship is not established.  [Added 1/10/14]  --  In re Guardianship of Klatthaar,129 So.3d 482 (Fla. 2d DCA 2014). 

          See also In re Guardianship of Steiner, __ So.3d __ (Fla. 2d DCA, No. 2D13-5083, 3/4/2015).

Third DCA affirms fee award of $62,000 in FDUTPA arbitration where plaintiff was awarded less than $6000.  [Added 1/3/14]  --  Bull Motors, LLC v. Borders, __ So.3d __ (Fla. 3d DCA, No. 3D12-2223, 12/26/2013), 2013 WL 6818377. 

Court abused discretion in ordering husband to make temporary support and fee payments consuming more than 80% of his net monthly income.  [Added 12/11/13]  --  Hoffman v. Hoffman, 127 So.3d 863 (Fla. 2d DCA 12/4/2013). 

Fee award to receiver’s lawyer is reversed because lawyer lacked standing to pursue receiver’s claim for fees and costs.  [Added 12/2/13]  --  Saga Bay Gardens Condominium Ass’n, Inc. v. For the Appointment of Blanket Receiver, 127 So.3d 800 (Fla. 3d DCA 11/27/2013). 

Supreme Court amends offer of judgment rule to clarify that partial proposals for settlement are not authorized.  [Added 11/27/13]  --  In re: Amendments to the Florida Rules of Civil Procedure, __ So.3d __, 38 Fla.L.Weekly S836 (Fla., No. SC13-74, 11/14/2013), 2013 WL 6164572. 

Contingent fee caps in Rule of Professional Conduct 4-1.5 do not limit what court can award under fee-shifting statute in inverse condemnation case.  [Added 11/25/13]  --  Fla. Dept. of Agriculture and Consumer Services v. Bogorff, __ So.3d __, 38 Fla.L.Weekly D2413 (Fla. 4th DCA, No. 4D12-1550, 11/20/2013), 2013 WL 6082242. 

Offer of judgment made less than 90 days after action commenced is invalid, regardless of whether made by plaintiff or defendant.  [Added 11/25/13]  --  Regions Bank v. Rhodes, 126 So.3d 1259 (Fla. 4th DCA 11/20/2013). 

Third DCA supports lawyers’ claim of retaining lien on client papers, rejecting argument that claim should fail because there were other avenues for payment.  [Added 11/14/13]  --  Fox v. Widjaya, __ So.3d __, 38 Fla.L.Weekly D2287 (Fla. 3d DCA, No. 3D13-2548, 11/6/2013), 2013 WL 5927583. 

Court erred in awarding less than amount of fees requested by lawyer who was court-appointed counsel to criminal defendant.  [Added 11/4/13]  --  Watts v. Justice Administrative Commission, __ So.3d __, 38 Fla.L.Weekly D2650 (Fla. 2d DCA, No. 2D13-2138, 12/18/2013) (on rehearing), 2013 WL 6643805. 

First DCA declines to find workers’ compensation fee statute unconstitutional, despite award of $164 for 107 hours of work.  [Added 10/29/13]  --  Castellanos v. Next Door Co., 124 So.3d 392 (Fla. 1st DCA 10/23/2013). 

First DCA reverses denial of petition to approve contingent fee above limits set in Rule 4-1.5.  [Added 10/16/13]  --  In re: Buggs, 122 So.3d 519 (Fla. 1st DCA 10/9/2013).

 Pending post-judgment motion to set aside default judgment does not toll rule 1.525 30-day time limit for serving motion for fees.  [Added 10/14/13]  --  ASAP Services, LLC v. S A Florida International, LLC, 122 So.3d 965 (Fla. 3d DCA 10/9/2013). 

Court properly denied motion filed by former husband’s lawyer seeking to enforce fee award directly against former wife.  [Added 10/2/13]  --  Coppola v. Coppola, 122 So.3d 474 (Fla. 2d DCA 9/25/2013). 

Warning letter does not satisfy requirement of section 57.105 that proposed fee motion be served to start mandatory 21-day safe harbor period.  [Added 9/29/13]  --  Global Xtreme, Inc. v. Advanced Aircraft Center, Inc., 122 So.3d 487 (Fla. 3d DCA 9/25/2013). 

Despite lack of express language, reservation of jurisdiction to determine amount of fees to be awarded reserved jurisdiction to address lawyer’s charging lien.  [Added 9/23/13]  --  Card v. Card, 122 So.3d 436 (Fla. 2d DCA 9/20/2013). 

Court abused discretion in awarding 57.105 fees where there had been issues of material fact regarding applicability of privilege.  [Added 8/31/13]  --  Wapnick v. Veterans Council of Indian River County, Inc., 123 So.3d 622 (Fla. 4th DCA 8/28/2013). 

Court erred in awarding 57.105 appellate fees on its own initiative without complying with 10-day notice provision in Fla.R.App.P. 9.410(a).  [Added 8/31/13]  --  United Automobile Ins. Co. v. Doctor Rehab Center, Inc., 121 So.3d 66 (Fla. 3d DCA 8/28/2013). 

Trial court lacked authority to impose monetary sanctions on party for filing Bar complaints against opponent’s lawyers.  [Added 8/26/13]  --  Kass Shuler, P.A. v. Barchard, 120 So.3d 165 (Fla. 2d DCA 8/23/2013). 

Fee award under offer of judgment statute is reversed because underlying judgment was capped due to sovereign immunity.  [Added 8/21/13]  --  UCF Athletics Ass’n Inc. v. Plancher, 121 So.3d 616 (Fla. 5th DCA 8/16/2013). 
Stockman v. Downs rule of pleading entitlement to fees did not bar fee claim that did not exist at outset of action.  [Added 8/19/13]  --  Ocean Bank v. Caribbean Towers Condominium Ass’n, Inc., 121 So.3d 1087 (Fla. 3d DCA 8/14/2013). 

Court erred in denying fees under offer of judgment statute to insurer who made nominal offer to insured.  [Added 8/8/13]  --  State Farm Florida Ins. Co. v. Laughlin-Alfonso, 118 So.3d 314 (Fla. 3d DCA 7/31/2013). 

Plaintiffs’ voluntary dismissal of some claims did not automatically make defendant the prevailing party for purposes of fee award.  [Added 8/7/13]  --  Tubbs v. Mechanik Nuccio Hearne & Wester, P.A., 125 So.3d 1034 (Fla. 2d DCA 7/26/2013). 

Insurer who is defendant is entitled to fees under offer of judgment statute regardless of policy’s provisions.  [Added 7/29/13]  --  United States Auto Ins. Co. v. Virga, 116 So.3d 1288 (Fla. 3d DCA 7/24/2013). 

Lawyer did not improperly act as “surety” by filing nonresident case bond on behalf of client.  [Added 7/3/13]  --  US Bank, N.A. v. Boyer, 125 So.3d 997 (Fla. 2d DCA 6/28/2013). 

In workers’ comp case, hours billed by claimant’s successor counsel could be relevant to fees awarded to former counsel under charging lien claim.  [Added 7/3/13]  --  Smith v. Schryver, 115 So.3d 450 (Fla. 1st DCA 7/1/2013).

 Court departed from essential requirements of law by awarding fees to appointed counsel without findings regarding reasonable hours worked and reasonably hourly rate.  [Added 6/21/13]  --  Watts v. Justice Administrative Commission, 115 So.3d 431 (Fla. 2d DCA 6/12/2013). 

Defendant in mortgage foreclosure suit entitled to prevailing party fees when suit dismissed for failure to prosecute.  [Added 6/12/13]  --  Vivot v. Bank of America, NA, 115 So.3d 428 (Fla. 2d DCA 6/7/2013). 

First DCA rules that 2 workers’ compensation fee statutes are unconstitutional as applied in claimant’s defense against motion to tax costs.  [Added 6/10/13]  --  Jacobson v. Southeast Personnel Leasing, Inc./Packard Claim Administration, Inc., 113 So.3d 1042 (Fla. 1st DCA 6/5/2013). 

Supreme Court approves use of “alternative fee recovery clauses” (“greater-of-contract-or-court-awarded” clauses) in hourly fee agreements as well as in contingent fee agreements.  [Added 5/20/13] -- First Baptist Church of Cape Coral, Florida v. Compass Construction, Inc., 115 So.3d 978 (Fla. 2013).

Court erred in striking law firm’s charging lien after firm withdrew without cause from part-hourly, part-contingent fee matter.  [Added 5/24/13]  --  Greenspoon Marder, P.A. v. Moscoso, 114 So.3d 327 (Fla. 3d DCA 5/15/2013). 

Court has discretion to deny fees to party who prevailed in trial de novo after arbitration hearing.  [Added 5/24/13]  --  Saltzman v. Hadlock, 112 So.3d 772 (Fla. 5th DCA 5/17/2013). 

Reference to “subsidiaries” in general release attached to proposal for settlement did not render the proposal ambiguous.  [Added 5/2/13]  --  Alamo Financing, L.P. v. Mazoff, 112 So.3d 626 (Fla. 4th DCA 4/24/2013). 

There is no “tenancy by the entireties” exception to apportionment requirement of offer of judgment rule.  [Added 4/21/13]  --  Cobb v. Durando, 111 So.3d 277 (Fla. 2d DCA 4/17/2013). 

Court erred in ruling that both plaintiff and counterclaiming defendant were entitled to prevailing party fees.  [Added 4/21/13]  --  Leon F. Cohn, M.D., P.A. v. Visual Health and Surgical Center, Inc., 125 So.3d 860 (Fla. 4th DCA 4/10/2013). 

Fourth DCA reverses fee award because offer of judgment was “apostrophe-challenged” and thus ambiguous.  [Added 4/14/13]  --  Bradshaw v. Boynton-JCP Associates, Ltd., 125 So.3d 289 (Fla. 4th DCA 4/10/2013). 

JCC erred by not holding evidentiary hearing to allow claimant’s lawyer to build record for constitutional challenge to fee statutes.  [Added 4/8/13]  --  Russ v. Brooksville Health Care Center LLC/Premier Group Ins., 109 So.3d 1266 (Fla. 1st DCA 4/3/2013). 

One insurance company may recover fees from another insurer under section 627.428.  [Added 3/10/13]  --  Indiana Lumbermens Mutual Ins. Co. v. Pennsylvania Lumbermens Mutual Ins. Co., 125 So.3d 263 (Fla. 4th DCA 3/6/2013). 

Per Supreme Court, trial court may not award sanctions under section 57.105 against plaintiff who voluntarily dismissed the suit before sanctions motion was filed. Pino v. Bank of New York, 121 So.3d 23 (Fla. 2013).

Lawyer’s efforts did not produce “tangible fruits” to support imposition of a charging lien where property was “upside down”.  [Added 2/6/13]  --  Joel M. Weissman, P.A. v. Abou-Sayed, 107 So.3d 1163 (Fla. 4th DCA 2/6/2013) (on rehearing). 

Property owner awarded fees on inverse condemnation claim is entitled to fees for all work, even that performed before suit was filed.  [Added 12/4/12]  --  Board of Supervisors of St. John’s Water Control District v. State of Fla. Dept. of Transportation, 103 So.3d 218 (Fla. 4th DCA 2012). 

Applying axiom “what’s sauce for the goose is sauce for the gander,” Fourth DCA reverses fee award.  [Added 11/28/12]  --  Surgical Partners, LLC v. Choi, 100 So.3d 1267 (Fla. 4th DCA 2012). 

Where party is entitled to fees under offer of judgment statute, court errs concluding that zero is a reasonable fee.  [Added 11/2/12]  --  Braaksma v. Pratt, 103 So.3d 913 (Fla. 2d DCA 2012). 

Workers comp claimant's lawyer fired by claimant is entitled to fees on full amount of benefits obtained, not just those paid prior to lawyer's discharge.  [Added 10/28/12]  --  Oliver v. Dunn, 100 So.3d 1187 (Fla. 1st DCA 2012). 

Proposal for settlement under section 768.79 invalid as “joint proposal” that did not apportion proposed amount.  [Added 10/16/12]  --  Arnold v. Audiffred, 98 So.3d 746 (Fla. 1st DCA 2012). 

Court erred in allowing discovery of opposing counsel’s billing records to support claim for fee award.  [Added 8/15/12]  --  Estilien v. Dyda, 93 So.3d 1186 (Fla. 4th DCA 2012). 

First DCA points out that there is no “de minimus” involvement exception concerning entitlement to prevailing party fees.  [Added 6/12/12]  --  First Real Estate, LLC v. Grant, 88 So.3d 1073 (Fla. 1st DCA 2012). 

Law firm’s charging lien did not attach to aircraft obtained for firm’s client in replevin action because lien was not filed with FAA.  [Added 6/6/12]  --  US Acquisition, LLC v. Tabas, Freedman, Soloff, Miller & Brown, P.A., 87 So.3d 1229 (Fla. 4th DCA 2012). 

In reversing application of multiplier in FCCPA case, Second DCA searches for solution to problems generated by fee statutes in cases where client’s damages are small.  [Added 5/3/12]  --  Dish Network Service L.L.C. v. Myers, 87 So.3d 72 (Fla. 2d DCA 2012). 

Concern about state’s economic condition is not basis for judge’s refusal to approve reasonable fee for court-appointed criminal defense lawyer.  [Added 3/21/12]  --  Still v. Justice Administrative Comm’n, 82 So.3d 1168 (Fla. 4th DCA 2012). 

Court erred in not awarding fees pursuant to offer of judgment made by two co-plaintiffs to single defendant.  [Added 3/4/12]  --  Wolfe v. Culpepper Constructors, Inc., __ So.3d ___, 37 Fla.L.Weekly D505 (Fla. 2d DCA, Nos. 2D10-3228, 2D10-3670, 2/29/2012), 2012 WL 638732. 
Citing "textbook example of legal chutzpah," Third DCA affirms denial of disbarred lawyer's charging lien for costs.  [Added 2/15/12]  --  Wingate v. Celebrity Cruises, LTD, 79 So.3d 180 (Fla. 3d DCA 2012). 

Offer of judgment statute does not apply to cases governed by substantive law of another state, per Florida Supreme Court.  [Added 2/8/12]  --  Southeast Floating Docks, Inc. v. Auto-Owners Ins. Co., 82 So.3d 73 (Fla. 2012). 

Attorney's fee award to insured is not a "covered claim" that FIGA is responsible for, per Florida Supreme Court.  [Added 1/23/12]  --  Petty v. Florida Ins. Guaranty Ass'n, 80 So.3d 313 (Fla. 2012). 

Fee award to law firm hired by personal representative is reversed because firm did not show that services were necessary or beneficial to estate.  [Added 11/17/11]  --  Davis v. Estate of Davis, 77 So.3d 703 (Fla. 3d DCA 2011). 

Contingent fee agreement requiring immediate payment at hourly rate if client discharges lawyer is unenforceable as matter of law.  [Added 10/12/11]  --  Guy Bennett Rubin, P.A. v. Guettler, 73 So.3d 809 (Fla. 4th DCA 2011). 

Error to calculate fee award in eminent domain proceeding based on unexecuted contract that did not constitute "first written offer."  [Added 9/20/11]  --  Pompano Beach Community Redevelopment Agency v. Holland, __ So.3d ___, 36 Fla.L.Weekly D2027 (Fla. 4th DCA, No. 4D10-291, 9/14/2011), 2011 WL 4056251. 

Settlement proposal was not ambiguous under offer of judgment statute and rule even though proposed release was not attached.  [Added 9/12/11]  --  Jones v. Publix Supermarkets, Inc., 68 So.3d 422 (Fla. 4th DCA 2011). 

Award under F.S. 57.105 may include not only attorney's fees but also "delay damages" resulting from improper delay.  [Added 6/11/11]  --  Korte v. US Bank National Ass'n, 64 So.3d 134 (Fla. 4th DCA 2011). 

In case of first impression, First DCA rules that valid proposal for settlement under F.S. 768.79 does not cut off prevailing party's fee claim after date of proposal.  [Added 5/25/11]  --  Tierra Holdings, Ltd. v. Mercantile Bank, 78 So.3d 558 (Fla. 1st DCA 2011). 

Court erred by awarding fee that exceeded amount provided for in lawyer-client contract.  [Added 5/23/11]  --  Western and Southern Life Ins. Co. v. Beebe, 61 So.3d 1215 (Fla. 3d DCA, No. 3D10-672, 5/18/2011). 

Order imposing charging lien in contingent fee case is reversed, where lawyer was suspended before occurrence of contingency.  [Added 5/17/11]  --  Santini v. Cleveland Clinic Florida, 65 So.3d 22 (Fla. 4th DCA 2011). 

Court erred in denying law firm fees in quantum meruit because firm did not keep time records.  [Added 5/15/11]  --  Morgan & Morgan, P.A. v. Guardianship of Larry McKean, 60 So.3d 575 (Fla. 2d DCA 2011). 

Fourth DCA reverses award of attorney's fees in insurance case involving FIGA.  [Added 5/9/11]  --  Florida Ins. Guaranty Ass'n v. Ehrlich, __ So.3d ___, 36 Fla.L.Weekly D939 (Fla. 4th DCA, No. 4D09-3886, 5/4/2011), 2011 WL 1661386. 

Court erred in partially denying fees to former wife who did not present evidence showing need for second lawyer.  [Added 4/25/11]  --  Grover v. Grover, 59 So.3d 333 (Fla. 5th DCA 2011). 

Supreme Court rules that law firm hired by survivors in wrongful death case may be entitled to share in contingent fee received by personal representative's law firm.  [Added 4/11/11]  --  Wagner, Vaughn, McLaughlin & Brennan, P.A. v. Kennedy Law Group, 64 So.3d 1187 (Fla. 2011). 

Lawyer who withdrew from matter and filed charging lien 3 years later is awarded fees on quantum meruit basis despite lack of enforceable attorney-client contract.  [Added 4/8/11]  --  Clark v. Estate of Elrod, 61 So.3d 416 (Fla. 2d DCA 2011). 

Court erred in denying motion to compel arbitration in legal malpractice case.  [Added 3/30/11]  --  Mintz & Fraade, P.C. v. Beta Drywall Acquisition, LLC, 59 So.3d 1173 (Fla. 4th DCA 2011). 

First DCA upholds constitutionality of revised workers compensation attorney's fee statute.  [Added 3/24/11]  --  Kauffman v. Community Inclusions, Inc./Guarantee Ins. Co., 57 So.3d 919 (Fla. 1st DCA 2011). 

Court erred in imposing charging lien and retaining lien sought by law firm against its former client.  [Added 2/26/11]  --  LaVere-Alvaro v. Syprett, Meshad, Resnick, Lieb, Dumbaugh, Jones, Krotec & Westheimer, P.A., 54 So.3d 1056 (Fla. 2d DCA 2011). 

Per Third DCA in fee award case, all child support cases administered by Department of Revenue are Title IV-D cases.  [Added 2/26/11]  --  Spano v. Bruce, 62 So.3d 2 (Fla. 3d DCA 2011) (on rehearing). 

Court erred in applying wholly objective standard in determining whether offer of judgment was made in good faith.  [Added 2/21/11]  --  Arrowood Indemnity Co. v. Acosta, Inc., 58 So.3d 286 (Fla. 1st DCA 2011). 

Supreme Court resolves conflict among DCAs regarding application of safe harbor provision in Fla. Stat. 57.105.  [Added 2/11/11]  --  Bionetics Corp. v. Kenniasty, 69 So.3d 943 (Fla. 2011). 

After PIP benefits are exhausted, suit for fees related to reduced or denied benefits may no longer be maintained.  [Added 1/3/11]  --  Sheldon v. United States Auto. Ass'n, 55 So.3d 593 (Fla. 1st DCA 2010). 

"Nominal" offer may still be made in good faith and support fee award under offer of judgment statute.  [Added 1/3/11]  --  Gawtrey v. Hayward, 50 So.3d 739 (Fla. 2d DCA 2010).

 Trial court erred in denying fees under offer of judgment statute on ground that proposal was not made in good faith.  [Added 10/26/10]  --  Sharaby v. KLV Gems Co., Inc., 45 So.3d 560 (Fla. 4th DCA 2010). 

Fee award under Fla.Stat. sec 627.428 is not "covered claim" under FIGA Act, per Second DCA.  [Added 10/7/10]  --  Florida Ins. Guaranty Ass'n v. Petty, 44So.3d 1191 (Fla. 2d DCA 2010). 

Fourth DCA narrowly construes attorney's fee clause in contract and does not apply F.S. 57.107(7) reciprocity.  [Added 9/14/10]  --  Florida Hurricane Protection and Awning, Inc. v. Pastina, 43 So.3d 893 (Fla. 4th DCA 2010) (en banc). 

Supreme Court amends offer of judgment rule as it applies in vicarious liability situations.  [Added 9/10/10]  --  In re: Amendments to the Florida Rules of Civil Procedure, 52 So.3d 579 (Fla. 2010). 

All child support cases eligible for Title IV-D services are Title IV-D cases for attorney's fee purposes, even if Dept. of Revenue is not a party.  [Added 8/12/10]  --  Spano v. Bruce, __ So.3d ___, 35 Fla.L.Weekly D1811(Fla. 3d DCA, No. 3D07-3327, 8/11/2010), 2010 WL 3154873. 

Fourth DCA questions but upholds requirement of independent expert witness testimony in charging lien case.  [Added 7/21/10]  --  Robin Roshkind, P.A. v. Machiela, 45 So.3d 480 (Fla. 4th DCA 2010). 

Attorney's charging lien filed after dismissal of underlying case was untimely and thus unenforceable.  [Added 7/19/10]  --  Naftzger v. Elam, 41 So.3d 944 (Fla. 2d DCA 2010). 

LAW FIRM THAT OUTSOURCED TRIAL PREPARATION WORK THAT CLIENT PAID FOR HAD "palpable" lawyer-client conflict AND COULD BE SUBJECT TO CLIENT'S EXCESSIVE FEE CLAIM under Rule 4-1.5.  [Added 5/25/10]  --  Liebreich v. Trial Strategies, Inc., 40 So.3d 1 (Fla. 2d DCA 2010). 

Charging lien cannot be enforced on recovery for insurance proceeds on hurricane-damaged homestead property.  [Added 4/9/10]  --  Quiroga v. Citizens Property Ins. Corp., 34 So.3d 101 (Fla. 3d DCA 2010). 

Supreme Court clarifies that joint offer of settlement or judgment conditioned on acceptance of all offerees is invalid and unenforceable.  [Added 4/2/10]  --  Attorneys' Title Ins. Fund, Inc. v. Gorka, 36 So.3d 646 (Fla. 2010). 

Law firm could not assert retaining lien over its files in contingent fee cases because contingency had not yet occurred.  [Added 4/1/10]  --  Brickell Place Condo Ass'n, Inc. v. Joseph H. Ganguzza & Associates, P.A., 31 So.3d 287 (Fla. 3d DCA 2010). 

Fifth DCA concurring opinion points out potential conflict when lawyer represents client in arguing for reversal of 57.105 sanctions order against both.  [Added 3/29/10]  --  Geiger v. Spurlock, 30 So.3d 704 (Fla. 5th DCA 2010). 

Trial court erred in imposing charging lien before rendition of final judgment in underlying case.  [Added 3/14/10]  --  Walia v. Hodgson Russ LLP, 28 So.3d 987 (Fla. 4th DCA 2010). 

Lawyer not licensed in Florida may not collect fee in quantum meruit for legal services provided in Florida in probate and trust matter.  [Added 2/23/10]  --  Morrison v. West, 30 So.3d 561 (Fla. 4th DCA 2010). 

Persons who are not named as parties in litigation nevertheless may be "parties" for purpose of having attorney's fees awarded against them.  [Added 12/8/09]  --  Dunkin' Donuts Franchised Restaurants, LLC v. 330545 Donuts, Inc., 27 So.3d 711 (Fla. 4th DCA 2010)  

Lawyer's right to charging lien was not eliminated by the 2003 statutory changes to workers' compensation law, per First DCA.  [9/21/09]  --  Rosenthal, Levy & Simon, P.A. v. Scott, 17 So.3d 872 (Fla. 1st DCA 2009). 

Trial court erred in granting summary judgment for law firm sued on fee-sharing agreement by disciplined attorney.  [Added 8/11/09]  --  Chastain v. Cunningham Law Group, P.A., 16 So.3d 203 (Fla. 2d DCA 2009). 

Trial court correctly declined to add to fee award time that parties allegedly spent working on their own case as "paralegals."  [Added 7/29/09]  --  Lewis v. Nical of Palm Beach, Inc., 24 So.3d 564 (Fla. 4th DCA 2009). 

Trial court erred in imposing lien on homestead property for attorney's fees incurred in estate matter.  [Added 6/9/09]  --  Herrilka v. Yates, 13 So.3d 122 (Fla. 4th DCA 2009). 

JCC did not err in concluding that paralegal time is included in attorney's fees under workers' comp fee statute.  [Added 5/15/09]  --  Demedrano v. Labor Finders of the Treasure Coast, 8 So.3d 498 (Fla. 1st DCA 2009) (on motion for clarification).    NOTE:  In a footnote the court distinguished the situation in this case, where the claimant was paying a fee to his lawyer pursuant to a lump sum settlement, from that in Murray v. Mariner Health, 994 So.2d 1051 (Fla. 2008), where the claimant was entitled to recover fees from an employer/carrier.  

Law firm's charging lien enforceable against opposing party who had notice of lien but paid settlement without protecting firm's claim.  [Added 4/28/09]  --  Hall, Lamb & Hall, P.A. v. Sherlon Investments Corp., 7 So.3d 639 (Fla. 3d DCA 2009) (on rehearing). 

Offer of judgment rules for multiple parties must be strictly complied with even if parties' claims are "indistinguishable."  [Added 3/26/09]  --  Cano v. Hyundai Motor America, Inc., 8 So.3d 408 (Fla. 4th DCA 2009). 

Fifth DCA rules on 57.105 motion for fees filed after effective date of "safe harbor amendment," in case where suit was filed before effective date of amendment.  [Added 1/30/09]  --  Kenniasty v. Bionetics Corp., 10 So.3d 1183 (Fla. 5th DCA 2009) (revised opinion). 

Court's inherent authority to award attorney's fees under "inequitable conduct doctrine" remains intact despite amendment of Fla.Stat. sec. 57.105.  [Added 1/28/09]  --  Rosenberg v. Gaballa, 1 So.2d 1149 (Fla. 4th DCA 2009). 

Public official who defended ethics complaint may recover attorney's fees incurred in proving entitlement to and amount of fees.  [Added 1/5/09]  --  Milanick v. Osborne, 6 So.3d 729 (Fla. 5th DCA 2009). 

Third DCA affirms denial of attorney's fees incurred spent litigating amount of fees to be awarded in insurance litigation.  [Added 12/2/08]  --  Oquendo v. Citizens Property Ins. Corp., 998 So.2d 636 (Fla. 3d DCA 2008). 

Trial court's retention of jurisdiction over issue of attorney's fees also includes jurisdiction to adjudicate law firm's charging lien.  [Added 11/24/08]  --  Baker & Hostetler, LLP v. Swearingen, 998 So.2d 1158 (Fla. 5th DCA 2008).  NOTE:  Although the appeals court questioned the standing of Husband to object to Law Firm's charging lien, it declined to consider the standing issue because it was not raised by the parties. 

Lawyer's services need not have increased value to estate in order to be awarded fees in probate matter.  [Added 10/13/08]  --  Duncombe v. Adderly, 991 So.2d 1013 (Fla. 4th DCA 2008). 

Settlement proposal to multiple plaintiffs invalid under offer of judgment statute unless each plaintiff could independently accept proposal.  [Added 9/9/08]  --  Attorneys' Title Insurance Fund, Inc. v. Gorka, 989 So.2d 1210 (Fla. 2d DCA 2008). 

Waiver of temporary attorney's fees in prenuptial agreement not enforceable in Florida, even if agreement governed by another state's law.  [Added 9/4/08]  --  McNamara v. McNamara, 988 So.2d 1255 (Fla. 5th DCA 2008). 

F.S. 57.105 attorney's fees assessed against lawyer and clients for filing disqualification motion as "litigation tactic."  [Added 8/13/08]  --  Yang Enterprises, Inc. v. Georgalis, 988 So.2d 1180 (Fla. 1st DCA 2008). 

Trial court erred in ordering that attorney's charging lien may be executed against former client's homestead property.  [Added 8/4/08]  --  Sass v. Sass, 988 So.2d 1135 (Fla. 4th DCA 2008). 

Trial court exceeded its authority by granting charging lien and ordering client's assets frozen to pay attorneys' fees.  [Added 8/4/08]  --  Pineiro v. Pineiro, 988 So.2d 686 (Fla. 4th DCA 2008). 

Law firm representing survivor in wrongful death action not entitled to share in contingent fee earned by personal representative's law firm.  [Added 7/12/08]  --  Wagner, Vaughn, McLaughlin & Brennan, P.A., v. Kennedy Law Group, 987 So.2d 741 (Fla. 2d DCA 2008). 

Attorney's charging lien does not attach to money appropriated by Legislature on claims bill.  [Added 7/2/08]  --  Noel v. Sheldon J. Schlesinger, P.A., 984 So.2d 1265 (Fla. 4th DCA 2008).  NOTE:  Compare this case to Richman Greer Weil Brumbaugh Mirabito & Christensen, P.A. v. Chernak, 991 So.2d 875 (Fla. 4th DCA 2008) (attorney's charging lien filed in suit that was later dismissed can attach to proceeds recovered by former client in related arbitration proceeding).

 Claim for contingent fee is denied because contract was signed by person without authority and minor  [Added 6/4/08]  --  Charles v. Klemick and Gampel, P.A., 984 So.2d 563 (Fla. 2d DCA 2008). 

Lawyer-paralegal bonus agreement that violates ethical fee-splitting rule is not void as against public policy and is enforceable by paralegal.  [5/9/08]  --  Patterson v. A Law Office of Lauri J. Goldstein, P.A., 980 So.2d 1234 (Fla. 4th DCA 2008). 

Lawyer is unsuccessful in attempt to set aside client's settlement and continue suit in client's name to pursue lawyer's fee award  [Added 3/26/08]  --  Manzini & Associates, P.A. v. Broward Sheriff's Office, 976 So.2d 688 (Fla. 4th DCA 2008). 

Attorney's charging lien filed in suit that was later dismissed can attach to proceeds recovered by former client in related arbitration proceeding  [Added 3/14/08]  --  Richman Greer Weil Brumbaugh Mirabito & Christensen, P.A. v. Chernak, 991 So.2d 875 (Fla. 4th DCA 2008). 

Fifth DCA refuses to enforce attorney's fee provision in lease agreement because it "clearly makes no sense"  [Added 3/11/08]  --  Islander Beach Club Condominium v. Skylark Sports, L.L.C., 975 So.2d 1208 (Fla. 5th DCA 2008). 

On its own motion First DCA imposes f.s. 57.105 fees against lawyer who appealed his disqualification by administrative Law Judge for "unruly" behavior  [Added 2/27/08]  --  Gopman v. Dept. of Education, 974 So.2d 1208 (Fla. 1st DCA 2008). 

Party that settled pursuant to offer of judgment can be "prevailing party" for purposes of attorney's fee award under Magnuson-Moss warranty Act  [Added 2/12/08]  --  Dufresne v. DaimlerChrysler Corp., 975 So.2d 555 (Fla. 2d DCA 2008).  NOTE:  The Fourth DCA reached a decision contrary to Dufresne and certified conflict.  Mady v. DaimlerChrysler Corp., 976 So.2d 1212 (Fla. 4th DCA 2008). 

Supreme Court resolves conflict among Districts regarding construction of pre-2006 version of Fla.R.Civ.P. 1.525 (attorney's fee motions)  [Added 2/8/08]  --  Barco v. School Board of Pinellas County, 975 So.2d 1116 (Fla. 2008). 

Error to apply contingency risk multiplier to fee award absent evidence that client had difficulty securing competent counsel  [Added 1/6/08]  --  Eckhardt v. 424 Hintze Management, LLC, 969 So.2d 1219 (Fla. 1st DCA 2007). 

Even "nominal" settlement offer may be made in good faith and support award of fees under offer of judgment statute.  [Added 1/6/08]  --  Downs v. Coastal Systems International, Inc., 972 So.2d 258 (Fla. 3d DCA 2008). 

Supreme Court rules that clause in lawyer-client fee contract cannot waive homestead protection that applied to client's property.  [Added 12/27/2007]  --  Chames v. DeMayo, 972 So.2d 850 (Fla. 2007). 

Judgment awarding fees to lawyer is reversed on ground that there was no evidence lawyer had actual or apparent authority to represent purported corporate client.  [Added 12/9/07]  --  Florida State Oriental Medical Ass'n, Inc. v. Slepin, 971 So.2d 141 (Fla. 1st DCA 2007). 

$100,000 statutory cap on damages against state agencies in tort actions includes amounts awarded for attorney's fees.  [Added 11/9/07]  --  Zamora v. Florida Atlantic University Board of Trustees, 969 So.2d 1108 (Fla. 4th DCA 2007). 

Lawyer who withdrew from contingent fee case for health reasons may not have forfeited right to fee.  [Added 11/1/07]  --  Collier v. Bohnet, 966 So.2d 1033 (Fla. 4th DCA 2007). 

Error for trial court to award legal fees and expert witness fees incurred by lawyer in perfecting and enforcing charging lien.  [Added 7/24/07]  --  Rudd v. Rudd, 960 So.2d 885 (Fla. 4th DCA 2007). 

Award of attorney's fees under offer of judgment statute reversed because proposed release was an ambiguous non-monetary term of offer.  [Added 7/24/07]  --  Sparklin v. Southern Industrial Associates, Inc., 960 So.2d 895 (Fla. 5th DCA 2007). 

Supreme Court draws another "bright line" regarding offer of judgment rule, strictly requiring that offer cite applicable statute.  [Added 6/16/07]  --  Campbell v. Goldman, 959 So.2d 223 (Fla. 2007). 

Trial court erred in awarding attorney's fees under F.S. 57.105 in collateral criminal proceeding.  [Added 5/11/07]  --  Ortiz v. McDonough, 957 So.2d 1256 (Fla. 1st DCA 2007). 

Lawyer and client assessed appellate attorney's fees under F.S. 57.105 for pursuing frivolous appeal seeking specific performance of alleged real estate contract.  [Added 4/11/07]  --  de Vaux v. Westwood Baptist Church, 953 So.2d 677 (Fla. 1st DCA 2007). 

Division of contingent fee between co-counsel in different firms governed by fee agreement, not quantum meruit, even though one co-counsel was discharged before contingency occurred.  [Added 4/6/07]  --  Jay v. Trazenfeld, 952 So.2d 635 (Fla. 4th DCA 2007). 

Arbitration award not "judgment" for purposes of Fla.R.Civ.P. 1.525 30-DAY time period for filing motion for attorney's fees.  [Added 3/28/07]  --  Landing Group of Tampa, Inc. v. Kifner, 951 So.2d 1014 (Fla. 5th DCA 2007). 

Computerized legal research expenses are not taxable "costs" to prevailing party, per Fourth DCA  [Added 3/24/07]  --  Wood v. Panton & Co. Realty, Inc., 950 So.2d 534 (Fla. 4th DCA 2007). 

In collection case, trial court directed to enter attorney's fee award without contingency risk multiplier; no evidence that multiplier necessary to attract competent counsel.  [Added 3/12/07]  --  Sumner Group, Inc. v. M.C. Distributec, Inc., 949 So.2d 1205 (Fla. 4th DCA 2007). 

Fifth DCA exercises discretionary jurisdiction to conclude that trial court erred in applying multiplier to fee award in PIP suit.  [Added 3/7/07]  --  Progressive Express Ins. Co. v. Schultz, 948 So.2d 1027 (Fla. 5th DCA 2007). Trial court erred in awarding contingent fee to lawyer discharged by client before contingency occurred.  [Added 1/9/07]  --  Fields v. Klein, 946 So.2d 119 (Fla. 4th DCA 2007). 

Lawyer's charging lien can attach to any positive recovery produced for client by lawyer's efforts, even if client faces net loss due to counterclaims.  [Added 12/22/06]  --  Rebecca J. Covey, P.A. v. American Import Car Sales, 944 So.2d 1202 (Fla. 4th DCA 2006). 

Defendant may be awarded prevailing party attorney's fees after plaintiff voluntarily dismisses case, even through plaintiff later refiled case and prevailed.  [Added 12/14/06]  --  Alhambra Homeowners Ass'n, Inc. v. Asad, 943 So.2d 316 (Fla. 3d DCA 2006).

 In wrongful death case trial, court erred in not awarding fees to all lawyers for survivors in proportion to their efforts.  [Added 12/13/06]  --  Garces v. Montano, 947 So.2d 499 (Fla. 3d DCA 2006). 

Judge erred by enforcing law firm's charging lien in amount less than full contract amount owed to law firm by former client.  [Added 11/18/06]  --  Gossett & Gossett, P.A. v. Mervolion, 941 So.2d 1207 (Fla. 4th DCA 2006). 

Not including specific conditions of release in offer of judgment results in denial of attorney's fee award.  [Added 10/9/06]  --  Papouras v. BellSouth Telecommunications, Inc., 940 So.2d 479 (Fla. 4th DCA 2006). 

Court may award attorney's fees for time spent litigating amount of fee award, where fees awarded as sanction.   [Added 10/6/06]  --  Bates v. Islamorada, Village of Islands, 939 So.2d 171 (Fla. 3d DCA 2006). Florida

Supreme Court approves rule permitting waiver of clients' rights under constitutional amendment regarding attorneys' fees in medical malpractice cases.  [Added 9/28/06]   
The Florida Supreme Court revised the Florida Rules of Professional Conduct (specifically, Rule 4-1.5(f)(4)(B)) by adopting a rule permitting clients in medical malpractice cases to waive the rights granted to them under Article I, Section 26 of the Florida Constitution.  Article I, Section 26 was added to the constitution in 2004 when voters approved an amendment entitled the "Medical Malpractice Claimant's Compensation Amendment," which provided that in medical malpractice cases being handled by a lawyer on a contingent fee basis the client "is entitled to no less than 70% of the first $250,000.00 in all damages received by the claimant, and 90% of damages in excess of $250,000.00, exclusive of reasonable and customary costs and regardless of the number of defendants."   
The Court adopted (with modifications) the proposed rule offered by the Florida Bar, electing to reject a proposal presented by former Chief Justice Stephen Grimes and other bar members.  The Court was of the view that the rights provided by Article I, Section 26 could be waived by an affected client.  The Court, however, declined to require judicial review of the waiver in every waiver.  The Court stated that "[t]he waiver form not only is extremely detailed but, importantly, sets forth the actual language of article I, section 26 and requires the client to specifically acknowledge that he or she (1) has been advised that signing the waiver releases an important constitutional right; (2) has been advised of the opportunity to consult with separate and independent counsel and to have the waiver explained or reviewed by a court; (3) agrees to an increase in the attorney fee that would otherwise be owed if the constitutional provision were not waived; (4) has three business days in which to cancel the waiver; (5) wishes to engage the named lawyer or law firm, but is unable to do so because of the constitutional limitation and therefore knowingly and voluntarily waives the constitutional limitation in consideration of the lawyer or law firm’s agreement to represent him or her; and (6) has selected the named lawyer or law firm as counsel of choice, could not otherwise engage their services without the waiver, and specifically states that the waiver is knowingly and voluntarily made" (footnote omitted).    The Court described its modification of the form proposed by the Bar as follows:  "[W]e modify the form to require the client to acknowledge not only that he or she is agreeing to an increased fee, but also to specifically acknowledge the maximum contingency fee percentages currently set forth in rule 4-1.5(f)(4)(B)(i), up to which the lawyer and client may agree, without prior court approval, if the waiver is executed.  Under the rule as adopted, judicial approval is mandatory only where a client waives his or her rights under article I, section 26 and agrees to a contingent fee in excess of the maximum contingency fee percentages set forth in rule 4-1.5(f)(4)(B)(i).  In such a case, court approval under the process set forth in [existing] rule 4-1.5(f)(4)(B)(ii) is necessary" (emphasis in original).    Two justices dissented "from the rule's failure to provide for judicial review of the client's waiver."    The amendments to Rule 4-1.5(f)(4)(B) as approved by the Court is effective immediately (September 28, 2006).  In re: Amendment to the Rules Regulating The Florida Bar -- Rule 4-1.5(f)(4)(B) of the Rules of Professional Conduct, 939 So.2d 1032 (Fla. 2006). 

Cause of action for breach of fee sharing agreement among lawyers does not accrue until fee in underlying case has been collected.  [Added 9/27/06]  --  Barbara G. Banks, P.A. v. Thomas D. Lardin, P.A., 938 So.2d 571 (Fla. 4th DCA 2006). 

Fourth DCA affirms summary judgment against lawyer who failed to honor letter of protection.  [Added 8/3/06]  --  Koenig v. Charles S. Theofilos, M.D., P.A., 933 So.2d 1293 (Fla. 4th DCA 2006). 

Lawyer who continues to represent multiple clients after conflict arises not entitled to fees for work performed after that time.  [Added 7/8/06]  --  James T. Butler, P.A. v. Walker, 932 So.2d 1218 (Fla. 5th DCA 2006). 

Law firm may maintain retaining lien over files even absent court order or written contract.  [Added 7/8/06]  --  Shelowitz, Shelowitz, Terrell & Coffey, P.A. v. Peters, 931 So.2d 1059 (Fla. 4th DCA 2006). 

First DCA rejects constitutional and other challenges to statutory attorneys' fee limits in workers' compensation cases.  [Added 6/27/06]  --  Lundy v. Four Seasons Ocean Grand Palm Beach, 932 So.2d 506 (Fla. 1st DCA 2006).

Supreme Court rules that "bright-line" 30-day period in Fla.R.Civ.P. 1.525 is not extended by reservation of jurisdiction in final judgment (thus resolving conflict among Districts).  [Added 5/11/2006]  --  Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598 (Fla. 2006). 

Petition for writ of certiorari not "appeal" for purposes of additional contingent fee percentage; contingent fee may be charged in PIP case.  [Added 2/28/06]  --  Steinberg v. Charles T. Becker, P.A., 920 So.2d 1239 (Fla. 5th DCA 2006). 

Retaining lien available to law firm holding client funds in trust account, even though requirements for charging lien not met.  [Added 1/24/06]  --  JLA Investment Corp. v. Colony Ins. Co., 922 So.2d 249 (Fla. 2d DCA 2006). 

Lawyer owed fees could not enforce child support arrearage assignment from former client's estate.  [Added 12/30/05]  --  Robert S. Thurlow, P.A. v. Lafata, 915 So.2d 737 (Fla. 5th DCA 2005). 

No 21-day safe harbor when court awards F.S. 57.105 fees on own initiative, as opposed to on party's motion.   [12/30/05]  --  Schmigel v. Cumbie Concrete Co., 915 So.2d 776 (Fla. 1st DCA 2005). 

Offer of judgment by co-defendants must differentiate between them even when one's liability only vicarious.  [Added 10/25/05]  --  D.A.B. Constructors, Inc. v. Oliver, 914 So.2d 462 (Fla. 5th DCA 2005).  NOTE:  See also Graham v. The Peter K. Yeskel 1996 Irrevocable Trust, 928 So.2d 371 (Fla. 4th DCA 2006) (not error to deny attorney's fees where defendants' joint proposal for settlement did not apportion offer between them, even though defendants were tenants by entireties sued on claim directed at their joint ownership of real property). 

Prenuptial agreement may contract away obligation to pay attorney's fees during marriage by providing for prevailing party fees in actions to enforce agreement.  [Added 7/25/05]  --  Lashkajani v. Lashkajani, 911 So.2d 1154 (Fla. 2005). 

Error to require successor counsel and previously discharged counsel to share contingent fee.  [Added 5/6/05]  --  Lubell v. Martinez, 901 So.2d 951 (Fla. 3d DCA 2005). Contingent fee contract not invalid under Chandris where signed by individual before she was appointed personal representative (and later removed).  [Added 11/23/04]  --  Cooper v. Ford & Sinclair, P.A., 888 So.2d 683 (Fla. 4th DCA 2004). 


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)).