Court erred in denying attorney's fee award because claimant prevailed on statute of limitations defense rather than merits.  [Added 7/28/10]

    Plaintiff sued Defendants to recover wages.  Defendants' motion for summary judgment based on a statute of limitations defense was granted.  Defendants then moved for prevailing party attorney's fees under Fla.Stat. sec. 448.08 (2007).  The trial court denied the fee motion.  The court "determined that attorney’s fees should not be assessed because '[t]ermination of a case based on the statute of limitations while final, and appropriate, is different from a termination on the merits.'”  Defendants appealed.

    The Fourth DCA reversed and remanded for further proceedings.  The appellate court acknowledged that the trial court has discretion in deciding whether to award fees under section. 448.08, but was concerned that the lower court "misconstrue[d] the scope of its discretion" in making its ruling.  The appeals court cited cases supporting an award of attorney's fees when an employer prevails on a statute of limitations defense in a suit of this type.  The court concluded:  "Here, the trial court’s order suggests that the court based its decision on the mistaken belief that it could not award section. 448.08 attorney’s fees to defendants because they prevailed on a statute of limitations defense rather than on the merits.  This was an incorrect standard that stymied the court’s exercise of discretion."  Ultimate Makeover Salon & Spa, Inc. v. DiFrancesco, __ So.3d ___ (Fla. 4th DCA, No. 4D09-891, 7/21/2010).

Fourth DCA questions but upholds requirement of independent expert witness testimony in charging lien case.  [Added 7/21/10]

    Law Firm represented Client in a dissolution of marriage case.  The retainer agreement required the client to notify Law Firm in writing within 30 days if Client objected to fees charged.  Law Firm was owed unpaid fees.  Law Firm moved to withdraw and filed a Notice of Charging Lien.  The trial court granted the motion to withdraw and held a hearing on the Firm's motion to enforce its charging lien.  The lawyer in the Firm who was responsible for the case "testified to the firm’s engagement and the client’s failure to object to the bills in writing as provided for in the retainer agreement.  In addition, the court received into evidence the retainer agreement, the complete billing history, and the Notice of Charging Lien.  The court denied the firm’s motion based upon its failure to call an independent expert witness to testify concerning the reasonableness of the fees."  Law Firm appealed, arguing that the trial court erred in requiring independent expert witness testimony regarding the fees.

    Reluctantly, the Fourth DCA affirmed.  Although the appellate court "previously questioned the judicially-created requirement of independent expert witness testimony establishing the reasonableness of attorney's fees" (citations omitted), the court conceded that  this requirement "remains etched in our case law.  This is because attorneys have an ethical duty, pursuant to the Florida Rules Regulating the Florida Bar, to charge fair and reasonable fees, regardless of the terms of the fee agreement."  Because the court questioned the viability of the independent expert witness requirement, especially in a case involving a dispute between a law firm and its client.  The court affirmed but certified the following question to the Florida Supreme Court:  "Is expert witness testimony necessary to establish attorney’s fees due under a charging lien against a client, who has entered into a retainer agreement that requires all fee disputes to be made in writing within thirty days of the bill’s receipt and has failed to object?"  Robin Roshkind, P.A. v. Machiela, __ So.3d ___ (Fla. 4th DCA, No. 4D10-203, 7/14/2010).

Attorney's charging lien filed after dismissal of underlying case was untimely and thus unenforceable.  [Added 7/19/10]

    Attorney Elam represented Naftzger and her husband on a contingent fee basis in a premises liability action.  The clients replaced Elam with another lawyer.  The case settled and a dismissal with prejudice was entered on April 6, 2009.  On April 16 attorney Elam "filed a petition in the same action seeking to enforce a charging lien for $12,000 in attorney's fees for work he performed on Naftzger's case prior to his discharge.  Naftzger objected to the fee request and argued that the trial court no longer had jurisdiction to award fees because the underlying case had been dismissed."  The trial court, however, ruled that Elam was entitled to enforcement of his charging lien.  Naftzger appealed.

    The Second DCA reversed.  Timely notice is one requirement when a lawyer wishes to enforce a charging lien for fees allegedly owed.  See Daniel Mones, P.A. v. Smith, 486 So. 2d 559, 561 (Fla. 1986).  Therefore, "notice of the charging lien must be filed or the lien pursued in the action before entry of a final judgment or dismissal of the case.  Weiland v. Weiland, 814 So.2d 1252, 1253 (Fla. 2d DCA 2002); Levine v. Gonzalez, 901 So.2d 969, 974 (Fla. 4th DCA 2005); Hannah v. Elder, 545 So.2d 503, 504 (Fla. 4th DCA 1989)."  The court concluded:  "Attorney Elam did not meet the timely notice requirement because he did not file a notice of charging lien or pursue a lien in the pending premises liability action before the trial court entered its order dismissing the action pursuant to the stipulation for dismissal.  Because attorney Elam did not comply with the timely notice requirement for a charging lien, the charging lien was not perfected and the trial court was without jurisdiction to enforce it."  Naftzger v. Elam, __ So.3d ___ (Fla. 2d DCA, No. 2D09-2997, 7/16/2010).

Trial court erred in finding defendant's proposal for settlement ambiguous and thus unenforceable.  [Added 7/14/10]

    Defendant (one of 2 defendants in a defamation case) served a joint proposal for settlement pursuant to Fla.Stat. sec. 768.79 and Fla.R.Civ.P. 1.442, offering to settle with Plaintiff for $20,000.  The proposal required Plaintiff to dismiss the case with prejudice and also required that "'[t]he writing evidencing acceptance of this proposal must include the explicit acknowledgement by the plaintiff that by making this proposal, defendants are not admitting that they have said or done anything improper referable to the plaintiff, and that the defendants are attempting to purchase their peace from this plaintiff.'"  (Emphasis supplied.)  Plaintiff rejected the offer, but later settled with the other defendant (an employee of Defendant).

    The jury found in favor of Defendant.  Defendant then moved for an award of attorney's fees as a result of the rejected proposal for settlement.  The trial court denied the motion, finding that the certain language in the proposal (in italics, above) was ambiguous.  Defendant appealed.

    The Fourth DCA reversed, concluding that there was nothing ambiguous about the proposal.  "Rather than be ambiguous, the defendants specifically directed the language to be contained within the written acceptance.  Reading the paragraph as a whole, the last phrase merely explains why the defendants were willing to pay $20,000."

    The appeals court also rejected Plaintiff's contention that the proposal was void due to its joint nature.  "[T]he plaintiff maintained the ability to independently evaluate and act upon the proposal.  The plaintiff’s decision was not dependent upon the evaluation and acceptance of another offeree.  For this reason, the joint proposal did not run afoul of Gorka [Attorneys' Title Ins. Fund, Inc. v. Gorka, ___ So.3d ___, 35 Fla.L.Weekly S196 (Fla., No. SC08-1899, 4/1/2010), 2010 WL 1235268]."  Donovan Marine, Inc. v. Delmonico, __ So.3d ___ (Fla. 4th DCA, No. 4D09-897, 7/7/2010).

Trial court abused discretion in ordering one former spouse to pay 75% of other spouse's attorney's fee.  [Added 7/8/10]

    Under Fla.Stat. sec. 61.16, a trial court ordered a former spouse to reimburse the other former spouse's attorney's fees.  The recipient spouse had demonstrated no need for reimbursement.  On appeal the Fourth DCA reversed and remanded.  "Because the record reflects that the parties have the same approximate disposable income, we conclude that the trial court’s finding is not supported by the record.  See Satter v. Satter, 709 So.2d 617 (Fla. 4th DCA 1998).  We are mindful of the narrow scope of our review for abuse of discretion; however, we are compelled to reverse the fee award because while the record may support an award for a slight percentage of fees in her favor, it clearly does not support an award of 75%.  See Rosen v. Rosen, 696 So.2d 697 (Fla. 1997)."  Herbst v. Herbst, __ So.3d ___ (Fla. 4th DCA, No. 4D09-1383, 6/30/2010).

Revisions to F.S. 57.105, concerning attorney's fees awards as sanctions, effective July 1, 2010.  [Added 7/6/10]

    Fla.Stat. sec. 57.105, which authorizes the award of attorney's fees as sanctions for raising unsupported claims or defenses, was amended effective July 1, 2010.  The Florida House of Representatives "Session Summary 2010" describes the revisions this way:  "CS/HB 449 amends s. 57.105, F.S., to provide an exception to the imposition of sanctions against a represented party, and to limit the authority of the court to impose sanctions on its own motion.  Under the bill, represented parties are not subject to monetary sanctions for claims or defenses that would not be supported by the application of then-existing law to the material facts.  CS/HB 449 also reduces the court’s ability to impose sanctions by providing that a court may only award monetary sanctions on its own initiative if the sanction is ordered before a voluntary dismissal or settlement of the claims by the party to be sanctioned."  The amendments to Fla.Stat. 57.105 appear below.

    The Florida Supreme Court also amended the Florida Rules of Appellate Procedure to "harmonize the rules with section 57.105."  The Court's action was based on the prior version of the statute, but the statutory revisions do not appear to be inconsistent with the rules revisions.  In re: Amendments to the Florida Rules of Appellate Procedure, __ So.3d ___ (Fla., No. SC09-2062, 6/24/2010).

Attorney's fee award may include contingency risk multiplier for paralegal fees included in award.  [Added 6/30/10]

    In 3 county court suits involving payment for personal injury protection ("PIP") benefits, the plaintiffs prevailed at trial in one case and obtained favorable settlements in the other 2 cases.  Pursuant to Fla.Stat. sec. 627.428 the county court awarded attorney's fees, which included paralegal time.  The court applied a contingency risk multiplier to the entire award, including the paralegal time.  The insurer appealed to the circuit court, which affirmed.  The insurer then petitioned the First DCA for a writ of certiorari.

    The First DCA denied the petition.  The court noted that the question of whether a multiplier may be applied to paralegal fees appeared to be "an issue of first impression."  The court concluded that the application of the contingency risk multiplier to the paralegal fees was permissible.  The court viewed this decision as providing encouragement for lawyers to use lower-cost paralegal time in providing legal services to their clients.

    The court discussed Fla.Stat. sec. 57.104, which was adopted in response to the decision in Bill Rivers Trailers, Inc. v. Miller, 489 So.2d 1139 (Fla. 1st DCA 1986), and provides:  "In any action in which attorney’s fees are to be determined or awarded by the court, the court shall consider, among other things, time and labor of any legal assistants who contributed nonclerical, meaningful legal support to the matter involved and who are working under the supervision of an attorney."  The First DCA also discussed 2 U.S. Supreme Court cases, Missouri v. Jenkins, 491 U.S. 274 (1989), and Richlin Security Service Co. v. Chertoff, 128 S.Ct. 2007 (2008).  The court commented:  "Judge Joanos’ observations [in his dissenting opinion in Bill Rivers Trailers] and section 57.104 are consistent with the prevailing view that an attorney’s fee award may include paralegal fees because the paralegal’s work is a component of the attorney’s work product."

    The court stated:  "Although none of these cases involved the application of a multiplier to paralegal fees, the cases (and section 57.104) clearly establish the principle that the paralegal’s work is a component of the attorney’s ultimate work product.  This, in turn, provides support for the application of the multiplier to paralegal fees because the purpose of the multiplier is to enhance the fee calculated under the lodestar methodology to take into account the fact that an attorney working on a contingent fee contract is generally not compensated for any of the services provided to a client when the client does not prevail.  [Citations omitted.]  Because the potentially uncompensated legal services provided to the client include not only the attorney’s work, but also the paralegal’s work, it is appropriate to apply the multiplier to the paralegal fees included in the award.  Stated  another way, because the paralegal’s work is part of the legal services provided to the client, there is no principled reason to treat paralegal fees any different from attorney’s fees in regards to the application of the multiplier."  State Farm Mutual Auto. Ins. Co. v. Edge Family Chiropractic, P.A., __ So.3d ___ (Fla. 1st DCA, No. 1D10-0565, 6/25/2010), 2010 WL 2541260.

Trial court abused discretion in amount of appellate attorneys' fees award and in failing to award fee for fee expert's testimony.  [Added 6/12/10]

    D'Alusio prevailed in an appeal by Gould & Lamb concerning a noncompete agreement.  D'Alusio moved for appellate attorneys' fees.  At the hearing, D'Alusio presented expert testimony regarding the number of hours and a reasonable hourly rate.  D'Alusio's expert concluded that $23,520 would be a reasonable fee.  The expert presented by Gould & Lamb did not have much disagreement with the opposing expert's conclusions and opined that a reasonable fee would be $22,000.  The court, however, awarded $6875.  The court also did not enter a cost award for fee expert presented by D'Alusio.  D'Alusio appealed.

    The First DCA concluded that the trial court abused its discretion in the amount of the fee award.  "We find that the circuit court abused its discretion in drastically reducing the number of hours that was reasonable for this appeal, in contravention of the amount agreed to by both experts, without any specific findings.  Although the judge was not bound by the expert opinions or attorney affidavits in setting the award, the record is totally devoid of any evidence to support a conclusion that the award was reasonable."

    The trial court also erred in not awarding a fee for D'Alusio's fee expert.  "We also disapprove the omission in the circuit court's order of any finding that D'Alusio was entitled to a cost award for his expert witness's fees.  A party who seeks an award of appellate attorneys' fees must present expert testimony concerning the reasonable time and hourly rate or the resulting order will be overturned as an abuse of discretion.  . . .  Our court has held that '[e]xpert witness fees paid to the testifying expert are not discretionary if the attorney expects to be compensated for his testimony.'"  (Citations omitted.)  D'Alusio v. Gould & Lamb, LLC, __ So.3d ___, 35 Fla.L.Weekly D1226 (Fla. 2d DCA, No. 2D07-4426, 6/2/2010), 2010 WL 2178577.

Error to award attorney's fees against insurance agent under F.S. 627.428 because agent was not an "insurer."  [Added 6/12/10]

    Insured Restaurant suffered a loss and filed a flood insurance claim.  Insurer paid the policy limits of $150,000, but Insured thought it was covered for the full amount of the loss of $275,600.  Insured then sued its insurance Agent for negligent procurement of coverage.  The jury found Agent 90% negligent in reducing Insured's flood coverage and awarded damages to Insured.  Insured moved for attorney's fees against Agent under Fla.Stat. sec. 768.79 (2004) (offer of judgment statute) and Fla.Stat. sec. 627.428(1) (2004) (fee awards "against an insurer" when insured prevails on suit regarding policy).  The trial court awarded fees of $48,037 under section 768.79 and $102,945 under section 627.428.  Agent appealed the fee awarded under section 627.428.

    The First DCA reversed.  Agent was not "an insurer" as required by the statute.  The court stated:  "Under the facts of this case, it is undisputed that the agent merely facilitated the contract to which the restaurant and [the insurer] were parties and that the restaurant has not claimed that the agent was actually a party to the insurance contract.  (Hence, the restaurant sued [the insurer] for breach of contract and sued the agent for negligent procurement.)  Accordingly, a strict construction of section 627.428 excludes the agent from liability for attorney’s fees.  This is consistent with what the courts have often stated to be the purpose of the attorney’s fee statute, which is to encourage insurance companies to pay when they are presented with valid claims and, failing that, to compensate insureds that are forced to litigate their contracts with improperly recalcitrant insurance companies.  . . .  An agent who is not a party to an insurance contract has no authority to pay on the policy; thus, the purpose of the statute is not served by making agents liable for fees incurred in enforcing the policy."  Underwood Anderson & Associates, Inc., v. Lillo's Italian Restaurant, Inc., __ So.3d ___, 35 Fla.L.Weekly D1269 (Fla. 1st DCA, No. 1D09-4373, 6/4/2010), 2010 WL 2219727.

    NOTE:  The Fifth DCA held that "section 627.428(1) does authorize an award of attorney's fees against a surety that has issued a bond pursuant to section 320.27(1)."  Snow v. Jim Rathman Chevrolet, Inc., __ So.3d ___, 35 Fla.L.Weekly D1348 (Fla. 5th DCA, No. 5D08-3328, 6/18/2010), 2010 WL 2425946.

A party may be the "prevailing party" for attorney's fee award purposes even before underlying litigation is concluded.  [Added 6/3/10]

    Plaintiff sued Defendant alleging misleading advertising, deceptive and unfair trade practices, and conversion.  Plaintiff later voluntarily dismissed all of his claims pursuant to Fla.R.Civ.P. 1.420(a)(1).  Defendant moved for an award of prevailing party attorney's fees (and costs).  The trial court denied the motion.  Defendant appealed.

    The Fifth DCA affirmed in part and reversed in part.  "Our court has held that a defendant is a prevailing party when the plaintiff voluntarily dismisses an action pursuant to rule 1.420(a)(1) and, therefore, the defendant is entitled to recover attorney's fees under a prevailing party attorney's fee statute.  Vidibor v. Adams, 509 So.2d 973 (Fla. 5th DCA 1987)."  Defendant was entitled to prevailing party fees on its misleading advertising claim (see Fla.Stat. sec. 817.41(6)), but not on its deceptive trade practices act claim because that statute requires an entry of "judgment" before fees can be awarded (see Fla.Stat. sec. 501.2105(1)), and no judgment is entered after a voluntary dismissal.

    Plaintiff argued that Defendant cannot be a "prevailing party" because the underlying litigation had not yet been concluded when the fee award was entered.  The appeals court rejected that argument, citing Long v. Martin, 410 So.2d 607 (Fla. 5th DCA 1982).  (In Long, one plaintiff among several voluntarily dismissed the claim against the defendant while the other plaintiffs continued in the case.  While the case was still ongoing, the trial court awarded costs to the defendant against the dismissing plaintiff based on that dismissal.  The Fifth DCA upheld that decision.)  Black Diamond Properties, Inc. v. Haines, __ So.3d ___, 35 Fla.L.Weekly D1197 (Fla. 5th DCA, No. 5D09-894, 5/28/2010), 2010 WL 2131712.

First voluntary dismissal without prejudice of suit does not support fee award under offer of judgment statute.  [Added 5/27/10]

    Plaintiff sued Defendant, pleading negligent infliction of emotional distress.  Defendant served Plaintiff with a proposal for settlement.  Plaintiff did not respond.  Almost a year later Defendant moved for summary judgment.  Before the hearing Plaintiff filed and served a notice of voluntary dismissal without prejudice.  Defendant moved for attorney's fees and costs on the basis of its proposal for settlement and Fla.Stat. sec. 768.79.  The trial court granted the motion.  Plaintiff appealed.

    The Third DCA reversed.  After concluding that Plaintiff had timely objected on the ground that the voluntary dismissal was not a disposition on the merits of the case, the court summarized its decision:  "[A] involuntary dismissal, a dismissal with prejudice, and a second voluntary dismissal (which serves as adjudication on the merits pursuant to [Fla.R.Civ.P.] 1.420(a)(1)) all qualify as a basis of an award of attorney’s fees under section 768.79.  The Florida Supreme Court in MX [Investments, Inc. v. Crawford, 700 So.2d 640 (Fla. 1997)] found that the defendant-hotel was not entitled to an award of attorney’s fees where the plaintiff rejected a proposal of settlement and then voluntarily dismissed his complaint without prejudice.  Similarly, in the instant case, [Defendant] is not entitled to an award of attorney’s fees and costs because [Plaintiff]’s voluntary dismissal was her first notice of dismissal, her voluntary dismissal was without prejudice, and her voluntary dismissal did not operate as an adjudication on the merits."  (Emphasis by court.)  Smith v. Loews Miami Beach Hotel Operating Co., Inc., __ So.3d ___ (Fla. 3d DCA, No. 3D09-1244, 5/12/2010), 2010 WL 1875614.

    NOTE:  In reversing a trial court's denial of attorney's fees, the Fifth DCA stated:  "We have rejected the view that a party taking a voluntary dismissal can do so for strategic reasons and thereby prevent the other party from being determined the 'prevailing party.'  Vidibor v. Adams, 509 So.2d 973, 974 (Fla. 5th DCA 1987)."  Shepheard v. Deutsche Bank Trust Co. Americas, __ So.3d ___, 35 Fla.L.Weekly D1350 (Fla. 5th DCA, No. 5D07-2598, 6/18/2010), 2010 WL 2425921.

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]

    Law Firm, a two-lawyer firm, represented an Estate in a wrongful death suit on a contingent fee basis.  The suit became a major undertaking for the firm.  Law Firm retained a trial and jury consultant ("TSI") to assist with preparation of the case.  (The trial consultant's work "look[ed] like the product of a paralegal or young associate attorney.")  Neither Law Firm nor the Estate had a written contract with TSI.  Although for a while Law Firm paid TSI a monthly retainer, at some point it stopped paying.  TSI sued the Estate, alleging that it was owed more than $1.2 million in unpaid fees.  Law Firm, along with co-counsel, defended the Estate in the suit.  The trial court "found that 'there is no dispute that the parties through their agents entered into an oral agreement for [TSI] to provide jury consulting and other services'" and entered judgment for TSI in the amount of approximately $73,000.  The Estate appealed.

    The Second DCA affirmed, but in doing so stated:  "Our affirmance, however, should not prevent the Estate from seeking other remedies, including reimbursement of this amount from [Law Firm] under the contingency fee agreement between them."

    The appellate court was compelled to reject an argument that was "improperly presented" to it -- the argument that an oral contract did not exist between the Estate and TSI, but rather between Law Firm (or one of its lawyers) and TSI.  The court commented that there was "considerable merit to this argument."  The court stated:  "[Law Firm], in its capacity as attorneys for the Estate, never pleaded that the oral contract was a contract only between the law firm and TSI.  The conflict that has existed at all times between the Estate and its lawyers in this adversary proceeding is palpable, but we cannot conclude that the conflict creates fundamental error as to the judgment in favor of TSI."

    The court went on to discuss the nature of the conflict and the potential remedy available to the Estate.  If the amount and appropriateness of TSI's fee was raised by the Estate in a fee dispute with Law Firm under Rule 4-1.5 of the Rules of Professional Conduct, "the Estate could have made many arguments that have not been made in this case.  The most obvious argument available for the Estate would be that the 'trial consultant' services were little or nothing more than the type of work that [Law Firm] had agreed to perform on a contingency and that the services of TSI merely shifted work the law firm should have performed under its contingency agreement into 'costs' over and above those fees.  This is an argument that would involve not merely the $72,926.06 judgment, but the entire $232,926.06 paid to TSI."  Liebreich v. Trial Strategies, Inc., __ So.3d ___, 35 Fla.L.Weekly D1094 (Fla. 2d DCA, No. 2D08-2866, 5/14/2010), 2010 WL 1927138.

Party in divorce case may be awarded appellate attorney's fees for litigating amount of temporary fees to be paid by other party.  [Added 5/19/20]

    In a divorce case Wife sought an award of temporary fees.  The trial court awarded $7500 in temporary fees to Wife.  Husband appealed.  He did not dispute Wife's need and his ability to contribute to her attorney's fees, but did "challenge the lack of evidence to support the trial court's determination as to the amount of temporary fees and the court's failure to make findings as to the reasonableness of any hourly rate, the number of hours expended or to be expended, or the amount of the fees sought."

    The Second DCA reversed on the ground that Wife "failed to present competent, substantial evidence as to the reasonableness of the amount" of the temporary fees and remanded for further proceedings.

    The appeals court also addressed Wife's motion for appellate attorney's fees pursuant to Fla.Stat. sec. 61.16 (2009).  Husband contended that "a litigant cannot obtain attorney's fees for litigating the amount of fees."  The court disagreed, distinguishing State Farm Fire & Casualty Co. v. Palma, 629 So.2d 830, 833 (Fla. 1993), and Wight v. Wight, 880 So.2d 692 (Fla. 2d DCA 2004).  Wight applied Palma to a post-dissolution proceeding, and the court declined to extend Wight to temporary fees awards.  Section 61.16 is to be liberally construed, and it helps assure the needy party that he or she will not be disadvantaged in the litigation due to an inferior financial position.  "Preventing a needy party from recovering fees for litigating the amount of fees that the 'monied party' is required to pay may undermine the purpose of section 61.16."  (Citation omitted.)

    The court concluded:  "Wife points out that a determination of the amount of temporary fees does not inure solely to the attorney's benefit but inures to the litigant's benefit.  The needy party may be unable to undertake litigation of the amount of fees, and in a case regarding temporary fees, like the present one, it may affect the needy party's ability to litigate the remainder of the case. Therefore, we distinguish Wight, which did not involve a temporary fee order, and conclude that a party may seek appellate attorney's fees in an appeal concerning the amount of temporary attorney's fees that the trial court awarded."  Baker v. Baker, __ So.3d ___, 35 Fla.L.Weekly D1045 (Fla. 2d DCA, No. 2D09-3907, 5/12/2010), 2010 WL 1874402.

Award of appellate attorney's fees must be supported by expert testimony, per Second DCA.  [Added 5/12/10]

    Appellants appealed an award of appellate attorney's fees, contending inter alia that "the trial court erred because it did not require the appellees to present any expert testimony concerning the reasonable and necessary attorney's fees for the defense of this appeal."  The trial court had relied on earlier expert testimony concerning reasonable fees for trial work.

    The Second DCA reversed.  "There is currently some debate about whether trial judges should be given greater latitude to award attorney's fees without always receiving expert testimony from attorneys uninvolved in the case.  See, e.g., Sea World of Fla., Inc. v. Ace Am. Ins. Cos., Inc., 35 Fla. L. Weekly D361, D362 (Fla. 5th DCA Feb. 12, 2010); In re Amendments to Fla. Rules of Civil Procedure, 966 So.2d 943, 944 (Fla. 2007).  This court, however, continues to require such testimony.  See Snow v. Harlan Bakeries, Inc., 932 So.2d 411, 412 (Fla. 2d DCA 2006) (reversing attorney's fee award because the defendant failed to present expert testimony as to the reasonableness of the amount of fees); Yakubik v. Bd. of County Comm'rs of Lee County, 656 So.2d 591, 591 (Fla. 2d DCA 1995) ('The testimony of an expert witness concerning reasonable attorney's fees is necessary to support the establishment of the fees.')."

    The court further pointed out that the fees paid to the out-of-state lawyers who appeared pro hac vice should be based on rates of local Florida lawyers:  "We note that the appellees retained out-of-state attorneys who have been allowed to appear in these proceedings pro hac vice.  They appear to have charged hourly rates in excess of those charged by competent attorneys residing within this district.  See, e.g., Fla. Patient's Compensation Fund v. Rowe, 472 So.2d 1145, 1150 (Fla. 1985).  The appellees were certainly free to retain the attorneys of their choice.  But the appellants should not have to bear liability for additional fees absent some showing that these attorneys had a special expertise that required their participation at hourly rates above those normally charged by local attorneys handling comparable cases, or a showing of some alternative basis warranting fees above the market rate in this district."  Sourcetrack, LLC v. Ariba, Inc., __ So.3d ___, 35 Fla.L.Weekly D1032 (Fla. 2d DCA, No. 2D05-4908, 5/7/2010), 2010 WL 1816438.

Second DCA discusses when attorney's fees may be awarded to "force" insurer back to bargaining table in dispute with insured.  [Added 5/12/10]

    Insured and Insurer were embroiled in a dispute arising from fire damage to Insured's home.  Insured filed suit for breach of contract.  Ultimately the underlying dispute was resolved through the appraisal process.  The trial court granted summary judgment for Insurer on Insured's claim for attorney's fees under Fla.Stat. sec. 627.428.  Insured appealed.

    The Second DCA reversed and remanded for a determination of "whether [Insured] filed her lawsuit in good faith in order to force [Insurer] to adjust the claim or whether she filed suit merely as an effort to seek attorneys' fees for the normal process of adjusting the claim."  The court stated the operative issue as:  "If she filed her lawsuit in good faith in order to force [Insurer] to adjust the claim, then she is entitled to attorney's fees.  If not, then [Insurer] is not liable for the attorney's fees she incurred as a result of filing suit."

    The court went on to explain the scope of the fee award that may be available on remand.  "[I]f if the trial court determines that [Insured] is entitled to an award of attorneys' fees, we observe that the scope of the remedy we envisioned in Goff [v. State Farm Florida Ins. Co., 999 So.2d 684 (Fla. 2d DCA 2008)] has clearly been misconstrued by [Insured]'s attorneys in this case.  The fees we envisioned in Goff were the fees necessary to force [Insurer] back to the negotiations table to resolve the dispute within the terms of the insurance contract.  The appraisal process, for example, is not legal work arising from an insurance company's denial of coverage or breach of contract; it is simply work done within the terms of the contract to resolve the claim.  Thus, except under the most extraordinary of circumstances, we do not envision fees for such work to be recoverable under the rule announced in Goff.  Instead, the fees should normally be limited to the work associated with filing the lawsuit after the insurance carrier has ceased to negotiate or has breached the contract and the additional legal work necessary and reasonable to resolve the breach of contract."  Hill v. State Farm Florida Ins. Co., __ So.3d ___, 35 Fla.L.Weekly D1041 (Fla. 2d DCA, No. 2D07-2311, 5/7/2010), 2010 WL 1816253.

Florida law does not provide for court-appointed counsel, or fee payment, in parental rights termination cases where parent has voluntarily surrendered rights to child.  [Added 5/10/10]

    A trial court appointed Lawyer to represent Mother at the beginning of dependency proceedings.  Sixteen months later Mother signed a written surrender of the child and filed a petition for termination of parental rights.  The court then appointed Lawyer to represent Mother through the termination proceedings.  When the case concluded Lawyer sought payment from the Justice Administration Commission ("JAC") for his work in both cases.  JAC paid him for the dependency case but not for the termination case.  Lawyer filed a motion for compensation in the trial court.  The court ordered JAC to pay Lawyer for the termination proceeding as well.  JAC appealed.

    The Second DCA reversed.  "Section 29.007, Florida Statutes (2008), authorizes payment for an attorney's services only when the client has a right to court-appointed counsel.  At issue is whether the mother had a right to court-appointed counsel during these proceedings.  We hold that she did not.  Florida law does not provide for court-appointed counsel in termination proceedings when the parent has voluntarily surrendered her rights to the child."  Justice Administration Comm'n v. Goettel, 32 So.3d 786 (Fla. 2d DCA 2010).

Trial court correctly applied prevailing party standard, rather than F.S. 61.16, in awarding fees in family law case.  [Added 4/16/10]

    Husband and Wife entered into a mediated marital settlement agreement in their divorce case.  The agreement contained a prevailing party attorney's fee provision that stated:  "In the event of a breach of this Agreement by either party, the prevailing party shall be entitled to reasonable attorney's fees and court costs."  Husband filed an Amended Supplemental Petition for Modification seeking to change the provisions regarding custody or visitation.  Husband also filed an Emergency Motion for Christmas Visitation.

    The trial court denied the Emergency Motion for Christmas Visitation.  Subsequently Husband voluntarily dismissed his Amended Supplemental Petition for Modification.  Wife sought attorney's fees relating to both of Husband's filings pursuant to the prevailing party provision in the marital settlement agreement.  The trial court ruled that Wife was entitled to fees and costs in both matters, and entered orders awarding them.

    Husband appealed both orders, contending that "the award of attorney fees in family law proceedings must be based on the principles set forth in section 61.16, Florida Statutes (2008), and Rosen v. Rosen, 696 So.2d 697 (Fla. 1997).  These require that an award of attorney fees be based on a showing of need and ability to pay after consideration of the parties’ relative financial positions.  In this case, he argues, there was no evidence presented as to the parties’ financial positions and ability to pay."  The Fourth DCA affirmed the award of fees relating to the Amended Supplemental Petition for Modification, but reversed the fee award relating to the Emergency Motion for Christmas Visitation.

    The court stated:  "'[I]n cases involving a marital settlement agreement with a prevailing party provision, section 61.16, Florida Statutes, cannot be used as a basis for an award of attorney’s fees.'  Ulbrich v. Coolidge, 935 So.2d 607, 608 (Fla. 4th DCA 2006) (citing Zakian v. Zakian, 837 So.2d 549, 551 (Fla. 4th DCA 2003); Dean v. Dean, 655 So.2d 243, 244 (Fla. 3d DCA 1995)).  Instead, the provisions in the marital settlement agreement awarding attorney’s fees are generally enforced.  Id.  In this case, under the terms of the attorney’s fee provisions incorporated into the final judgment, the prevailing party standard applies, and it is applicable only to actions brought in the event of a breach of the agreement."  Accordingly, the trial court correctly awarded fees to Wife following Husband's voluntary dismissal of the Amended Supplemental Petition for Modification, because that petition sought relief based on claims of default and breach of the marital settlement agreement.  The order awarding fees relating to the Emergency Motion for Christmas Visitation was reversed, however, because that motion was not based on alleged default or breach of the agreement.  Vitale v. Vitale, 31 So.3d 970 (Fla. 4th DCA 2010).

Charging lien cannot be enforced on recovery for insurance proceeds on hurricane-damaged homestead property.  [Added 4/9/10]

    Law Firm represented Client on a contingent fee basis in a case seeking to secure homeowner's insurance proceeds for damages caused by 2 hurricanes.  Client's house was homestead property under Florida law.  See Art. X, Sec. 4(a), Fla. Constit.  "[Law Firm] secured the proceeds for the benefit of its client and policy insured, [], in appreciation for which [Client] not only terminated the law firm’s contingent fee representation of him, but also sought to shield himself from any responsibility to compensate his counsel by claiming the insurance proceeds are exempt homestead property, not subject to attachment by means of a charging lien."  The trial court denied Law Firm's motion to impose a charging lien on the proceeds.  Law Firm appealed.

    Reluctantly, the Third DCA affirmed.  "Because [Client] did not and, as a matter of public policy in this State, cannot through an unsecured agreement, such as the contingent fee agreement in this case, enter into an enforceable contract to divest himself from the exemptions afforded him through Article X, section 4(a), see Chames v. DeMayo, 972 So.2d 850, 853 (Fla. 2007), this Court is compelled to affirm the order under review, the equities of the matter notwithstanding."  (Citations omitted.)  Quiroga v. Citizens Property Ins. Corp., 34 So.3d 101 (Fla. 3d DCA 2010).

Filing improper motion for rehearing results in imposition of F.S. 57.105 fees on court's own motion.  [Added 4/6/10]

    Appellant filed a "motion for rehearing or clarification and rehearing en banc."  Appellee filed a motion seeking attorney's fees under F.S.. 57.105(4) (2009).  The appeals court viewed Appellee's motion as being improperly filed due to timing requirements, but nevertheless awarded attorney's fees on its own motion under F.S.. 57.105(1).

    Appellant improperly reargued points raised in its brief and addressed during oral argument.  Additionally, "Appellant compounded its error by including in its motion new arguments related to an issue already addressed in its briefs and at oral argument."  Finally, "[i]n its motion for rehearing, Appellant also requested a written opinion, arguing that this court’s per curiam affirmance conflicts with an opinion issued by the Third District Court of Appeal and that clarification 'would provide a legitimate basis for Supreme Court review.'  It is meritless to argue that an opinion which says nothing more than 'Affirmed' conflicts with a written opinion issued by another district court."  Unifirst Corp. v. City of Jacksonville, unpublished disposition (Fla. 1st DCA, No. 1D09-0820, 3/25/2010), 2009 WL 4263860.

JCC erred in awarding fees based on customary hourly rate in area rather than statutory fee schedule.  [Added 4/6/10]

    Claimant in a workers' compensation case sought an award of attorney's fees under F.S. sec. 440.34(1) (1999).  The Judge of Compensation Claims ("JCC")  "determined that a fee based on the statutory fee schedule would amount to $35,367.55, or roughly $643.00 per hour.  Solely because such a fee would result in an hourly rate 'higher than is typically awarded in the district,' the judge concluded that the presumptive statutory fee would be inappropriate.  Instead, she awarded $200.00 per hour for 35 hours, resulting in a fee of only $7,000.00."  Claimant appealed.

    Relying on Alderman v. Florida Plastering, 805 So.2d 1097 (Fla. 1st DCA 2002), the First DCA reversed.  The JCC abused her discretion by placing undue reliance on one of the factors listed in the statute, the fee customarily charged in the locality.  Smith v. Gulf Coast Hospital, 31 So.3d 297 (Fla. 1st DCA 2010).

Florida Supreme Court clarifies that joint offer of settlement or judgment conditioned on acceptance of all offerees is invalid and unenforceable.  [Added 4/2/10]

    To resolve a conflict among DCAs, the Florida Supreme Court addressed the issue of "whether a joint offer of settlement or judgment that is conditioned on the mutual acceptance of all of the joint offerees is valid and enforceable."  The Court held that such a joint offer "is invalid and unenforceable because it is conditioned such that neither offeree can independently evaluate or settle his or her respective claim by accepting the proposal.  The conditional nature of the offer divests each party of independent control of the decision to settle, thereby rendering the offer of judgment invalid and unenforceable."

    Defendant, a title insurer, was sued by 2 Plaintiffs.  Defendant served a proposal for settlement on Plaintiffs pursuant to F.S. 768.79 (2004) and Fla.R.Civ.P. 1.442.  The offer proposed payment of a specified amount to each plaintiff and stated that the offer could be accepted only if both Plaintiffs accepted; neither Plaintiff could independently accept the offer.  Plaintiffs did not accept the offer.

    After trial and judgment in its favor, Defendant sought fees and costs against Plaintiffs based on the unaccepted proposal.  The trial court denied the motion, concluding that the settlement proposal was invalid because, although Defendant apportioned the amounts offered to each of the Plaintiffs and stated the conditions, “neither party was able to independently evaluate or independently accept the offer as the offer required the acceptance of both parties.”  The Second DCA affirmed.  Attorneys' Title Insurance Fund, Inc. v. Gorka, 989 So.2d 1210 (Fla. 2d DCA 2008).  The Second DCA certified conflict with the First DCA's decision in Clements v. Rose, 982 So.2d 731 (Fla. 1st DCA 2008).

    By a 4-3 vote a majority of the Supreme Court approved the "well reasoned" decision of the Second DCA.  "A review of our precedent reveals that this principle inherently requires that an offer of judgment must be structured such that either offeree can independently evaluate and settle his or her respective claim  by accepting the proposal irrespective of the other parties' decisions.  Otherwise, a party's exposure to potential consequences from the litigation would be dependently interlocked with the decision of the other offerees."  The Court cited and discussed its decisions in Allstate Indemnity Co. v. Hingson, 808 So.2d 197 (Fla. 2002), Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276 (Fla. 2003), and Lamb v. Matetzschk, 906 So.2d 1037 (Fla. 2005).

    Justice Polston filed a dissenting opinion, concurred in by two other justices, in which he stated:  "The plain language of Florida Rule of Civil Procedure 1.442 allows an offer of settlement conditioned on joint acceptance."  Attorneys' Title Ins. Fund, Inc. v. Gorka, ___ So.3d ___, 35 Fla.L.Weekly S196 (Fla., No. SC08-1899, 4/1/2010), 2010 WL 1235268.

Law firm could not assert retaining lien over its files in contingent fee cases because contingency had not yet occurred.  [Added 4/1/10]

    Law Firm represented two condominium associations ("the Associations") in matters including collection and foreclosure cases.  When Law Firm's sole shareholder died, the Associations requested that Law Firm transfer all of the files relating to their matters to their new counsel.  Law Firm declined, instead filing a retaining lien and refusing to provide the Associations with a copy of their files "unless the Associations paid the law firm for its services on the pending collection and foreclosure cases even though the delinquent unit owners had not brought their accounts current."  The Associations moved for injunctive relief to obtain a copy of their files.  They argued that the collection and foreclosure matters were handled by Law Firm on a contingent fee basis and that, because the contingency (i.e., collection) had not occurred, Law Firm had no right to a retaining lien.  The trial court denied the Associations' motion.  They appealed.

    The Third DCA reversed.  The appellate court explained the nature of a retaining lien.  "A retaining lien differs from a charging lien.  A charging lien is placed on any monetary recovery due the client at the conclusion of the lawsuit.  Andrew Hall & Assocs. v. Ghanem, 679 So.2d 60, 61 (Fla. 4th  DCA 1996); 7 Am. Jur. 2d Atty’s at Law § 324 (1980).  On the other hand, a retaining lien is a passive lien and rests entirely on the right of an attorney to retain possession of his client’s papers, money, securities, and files as security for payment of the fees and costs earned by the law firm to that point.  Wintter v. Fabber, 618 So.2d 375, 377 (Fla. 4th DCA 1993)."  The Associations recognized that a law firm ordinarily may assert a retaining lien over files until outstanding fees are paid or adequate security for payment has been posted.  There are, however, exceptions to a law firm's right to assert a retaining lien.  "The exceptions are where the client pays the fees due; the client furnishes adequate security for the payment which may be due or which is subsequently found to be due; there is a clear necessity in a criminal case and a defendant cannot post security; or a lawyer’s misconduct caused his withdrawal.  [Wintter, 618 So.2d at 377.]  An additional exception is in contingency fee cases where the contingency has not occurred.  See Fla. Bar Ethics Dep’t, Opinion 88-11 (Reconsideration) (1993) (holding that an attorney may not ethically assert a retaining lien for fees allegedly owed in a contingency fee case unless and until the contingency has occurred); Fla. Bar v. Doe, 550 So.2d 1111, 1112 (Fla. 1989)."

    Law Firm's fee agreement with the Associations was contingent:  it "did not bill for nor get paid for its services in collecting these delinquent fees unless and until it was successful in collecting the amount due from the unit owner."  Consequently, because the contingency had not occurred, Law Firm could not legally or ethically assert a retaining lien over the files.

    The court did note that "[i]f the law firm believes it is owed money for services it rendered in the collection of delinquent unit owner fees, it may file a charging lien and is entitled to the reasonable value  of its services on the basis of quantum meruit, limited by the contract flat fee the parties agreed to."  (Emphasis in original; citations omitted.)  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]

    A trial court entered an order awarding attorney's fees and costs against a carty and her lawyer pursuant to F.S. 57.105 (2005).  Lawyer and Client, represented by Lawyer, appealed.  The Fifth DCA affirmed per curiam.

    One judge wrote a concurring opinion that pointed out a potential conflict of interest problem.  "I write to express my concern regarding the conflict of interest issues created by the fact that [Lawyer]'s law firm is representing both [Client] and [Lawyer] in this appeal.  In the initial brief filed in this matter [Lawyer] argued, inter alia, that it was error for the trial court to sanction her by directing her to pay half of [the opposing party]'s attorney's fees.  If [Lawyer] had been successful in arguing that point, [Client] could have been responsible for paying twice as much in attorney's fees.  It is disturbing that [Lawyer]'s firm, while purporting to represent [Client]'s interests, sought a reversal of a trial court ruling which, as a consequence, could have resulted in an assessment against [Client] of twice as much liability.  See Mullins v. Kennelly, 847 So.2d 1151 (Fla. 5th DCA 2003); R. Regulating Fla. Bar 4-1.7."  Geiger v. Spurlock, 30 So.3d 704 (Fla. 5th DCA 2010).

Trial court erred in awarding attorney's fees to wife in dissolution of 14-month marriage that went to trial over claim for permanent alimony.  [Added 3/26/10]

    Fourteen months after marriage Husband and Wife separated and pursued divorce.  Wife sought permanent alimony, alleging that Husband had induced her to quit a lucrative job.  At trial the court did not accept Wife's contention and declined to order permanent alimony.  The court did, however, award $65,000 in attorney's fees to Wife.  Husband appealed.

    The Third DCA reversed.  "Respectfully, the trial court should have denied the wife’s attorney’s fee claim on authority of Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997).  . . .  Permanent alimony is generally inappropriate in a short term marriage."  The court summarized the reasons for its decision:  "Given the short-term nature of the marriage, the almost total lack of any marital assets, and the fact that the parties’ property was almost all premarital in nature, there were few issues in the case, other than discovery and the wife’s claim for alimony.  Adding this up, (1) this was a claim for permanent alimony in a short-term marriage, which is almost never successful; (2) the case went to trial solely on the permanent alimony issue; (3) the basis of the claim was false, as outlined above; and (4) the wife turned down a favorable opportunity to settle the case before trial.  Attorney’s fees should not have been awarded to the wife.  Rosen."  Greenwald v. Rivkind-Greenwald, 31 So.3d 250 (Fla. 3d DCA 2010).

Matrimonial court did not err in awarding attorney's fees due to one party's conduct, despite parties' later settlement "waiving" claim to fees.  [Added 3/26/10]

    During the trial of a dissolution of marriage case, Husband left the country and took marital assets.  He returned 4 months later.  Wife sought attorney's fees for the work "attributable to attempting to obtain the husband’s return to this jurisdiction and completing the dissolution proceedings."  The court orally ruled that Husband would be ordered to pay the fees.

    Subsequently Husband and Wife settled the case without their counsel and entered into a marital settlement agreement providing that "each party would be responsible for his or her own attorney’s fees and costs."  The court approved the settlement agreement except for the fees-and-costs provision, ruling that it would "assess attorney's fees against the husband in accordance with its earlier oral pronouncement, because of the husband’s absenting himself from the jurisdiction."  The court ordered Husband to pay more than $90,000 to Wife's former law firm.  Both Husband and Wife appealed.

    The Third DCA affirmed.  "[T]he husband absconded in midtrial, taking with him some of the marital assets, and was gone for four months.  This was most definitely sanctionable behavior, and the trial court ordered that the husband would be sanctioned in the form of attorney’s fees.  The husband and wife later entered a marital settlement agreement, and in effect, asked the court to withdraw its earlier oral announcement assessing attorney’s fees against the husband as a sanction.  Whether to relieve the husband of sanctions was a matter addressed to the discretion of the trial court.  We see no abuse of discretion in the trial court’s imposition of attorney’s fees in accordance with its earlier oral announcement."  Gottfried v. Kutner Law Firm, 34 So.3d 56 (Fla. 3d DCA 2010).

Summary proceeding brought by former clients to contest out-of-state law firm's charging lien not exempt from meeting pleading requirements to establish personal jurisdiction.  [Added 3/16/10]

    Florida residents ("Clients") hired a Pennsylvania law firm ("Law Firm") to represent them in a products liability claim.  Before suit was filed Clients discharged Law Firm.  Clients hired a Florida law firm, which filed suit in Florida.  The case was settled.  Law Firm notified the defendant's counsel of its claim of an attorney's lien.  Clients then "initiated a summary proceeding by filing a complaint in the products liability action in" Florida that sought "to 'determine former attorneys' [Law Firm]'s charging lien'."  Law Firm filed a suit for fees in Pennsylvania and also moved to dismiss the Florida action based on lack of personal jurisdiction.  The trial court summarily denied the motion to dismiss.  Law Firm appealed.

    The Second DCA reversed.  Clients contended that under Daniel Mones, P.A. v. Smith, 486 So.2d 559 (Fla. 1986), they "were required to pursue a determination of [Law Firm]'s entitlement to a charging lien as a summary proceeding in the original action."  The appeals court disagreed regarding applicability of Daniel Mones, P.A. and similar cases.  "[Clients] argue that under Daniel Mones, P.A., the preferred method for them to determine [Law Firm]'s entitlement to a charging lien was to file a summary proceeding in the original action.  However, Daniel Mones, P.A. addressed what the attorney who sought to impose a charging lien must do. That case does not address what a client can or should do to contest a potential charging lien.  Further, even if the client could initiate a proceeding to determine the existence of a charging lien, Daniel Mones, P.A. does not exempt the client in such a proceeding from the pleading requirements to establish personal jurisdiction over a foreign defendant under Venetian Salami [Co. v. Parthenais, 554 So.2d 499 (Fla. 1989)].  In fact, the issue of personal jurisdiction is not mentioned in Daniel Mones, P.A.  Thus, the Baines' reliance on Daniel Mones, P.A. is misplaced."  Jaffe & Hough, P.C. v. Baine, 29 So.3d 456 (Fla. 2d DCA 2010).

Trial court erred in ruling that as matter of law it could not award fees for litigating amount of fees in divorce case.  [Added 3/16/10]

    In a hotly litigated dissolution of marriage case, Wife appealed an order awarding attorney's fees arising out of a post-judgment proceeding in which the court declined to award fees for litigating the motion for fees.  Specifically, the trial court declined to award Wife fees for litigating the reasonableness and amount of the fee award "as a matter of law."

    The Fourth DCA reversed, holding "that awarding fees for fee litigation in a marital dissolution case falls within the discretion of the trial court."  The appeals court concluded that State Farm Fire & Casualty Co. v. Palma, 629 So.2d 830 (Fla. 1993), "does not apply to attorney's fees awarded in dissolution proceedings pursuant to section 61.16, Florida Statutes."  (Palma decided that in an action for fees in insurance cases under F.S. 627.428, the statute permits an award of fees for litigating the entitlement to, but not amount of, fees.)  In determining that Palma did not control, the court explained:  "[U]nlike the statute involved in Palma in which attorney’s fees were granted in an action at law, courts assessing fees in dissolution of marriage proceedings look to far different factors in determining both the entitlement and amount of fees.  . . .  The assessment of fees in a marital dissolution action is part of the court’s duty to effect an equitable division of the parties’ assets and income.  The need and ability to pay requirement is tantamount to a finding of entitlement of one spouse to have the other spouse pay all or a portion of the spouse’s fees.  To determine that need and ability, however, the amount of those fees must also be considered.  Therefore, the court in its discretion may assess fees for litigating both factors, as they are part and parcel of the equitable proceedings."

    The court noted its disagreement with Wight v. Wight, 880 So.2d 692 (Fla. 2d DCA 2004), but did not certify conflict.  Schneider v. Schneider, 32 So.3d 151 (Fla. 4th DCA 2010).

Trial court erred in imposing charging lien before rendition of final judgment in underlying case.  [Added 3/14/10]

    Law Firm represented Husband in a dissolution of marriage case.  Law Firm withdrew from the representation prior to trial and filed a notice of charging lien.  After holding an evidentiary hearing on the lien, the trial court issued a final judgment and order establishing a charging lien in favor of Law Firm.  At the time the lien was imposed the underlying dissolution action "was still pending and unresolved."

    Husband appealed.  The Fourth DCA reversed.  The court noted that, "[a]n essential prerequisite to imposition of a charging lien is that the underlying litigation produces a positive judgment or settlement – in other words, some 'tangible fruits of the attorney’s service' for the benefit of the client.  . . .  If the litigation produces no judgment of monetary value for the client, the court may not impose a charging lien for the attorney’s benefit."  (Citations omitted.)  No final judgment had been rendered in the underlying dissolution action.  No property had been distributed to either party.  "The trial court imposed a charging lien on a prospective judgment that [Husband] may or may not receive at a future date.  Because the underlying dissolution action has not reached a final judgment, imposition of a charging lien was premature."  Walia v. Hodgson Russ LLP, 28 So.3d 987 (Fla. 4th DCA 2010).

First DCA imposes 57.105 fees against party and his lawyer who sought certiorari review after unsworn motion to disqualify JCC was denied.  [Added 3/5/10]

    Represented by Lawyer, Claimant filed a motion to disqualify the Judge of Compensation Claims ("JCC") in a workers' compensation case.  The motion was not sworn to, as required by Fla.Admin.Code R. 60Q-6.126 and Fla.R.Jud.Admin. 2.330(c)(3).  The motion was denied.  Claimant then petitioned the First DCA for a writ of prohibition.

    The appellate court denied the petition and also imposed appellate attorney's fees against Claimant and his attorney under F.S. 57.105(1)(b) (2008).  After Claimant's untimely filing of a reply brief, the court issued an order to show cause why fees should not be imposed "because it appeared that the petition and briefs reflected a lack of knowledge of the rules of appellate procedure and case law, and failed to provide relevant information for this court’s review of the petition."  The show cause order identified 7 separate problematic issues.  The court was wholly unsatisfied with Claimant's response.  "In his response, [Claimant]’s attorney failed to directly address any of the issues raised.  Most significantly, there was no explanation as to why [Claimant] never requested under oath that the JCC be disqualified, nor how [Claimant] was prejudiced by his attorney not being permitted to participate in a telephone conference when it had been rescheduled so that he could participate.  There was also no explanation for [Claimant] seeking relief in the form of a blanket disqualification of the JCC in that the Florida Supreme Court has made clear that such requests will not be granted."

    The court indicated that it wished to see the fees assessed solely against Lawyer:  "Although we would prefer to exclude [Claimant] from this sanction, section 57.105 does not authorize this court to fashion such a remedy.  This cause is remanded to the JCC to determine a reasonable fee and whether [Claimant] should be accorded an opportunity to obtain conflict-free counsel."  Skarka v. Lennar Homes, Inc./Broadspire, 29 So.3d 1170 (Fla. 1st 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]

    Client contacted Lawyer, who was licensed to practice law in North Carolina but not Florida, about possible representation in an estate matter.  Lawyer agreed to investigate the case for a $10,000 fee "and reserved the right to modify the fee arrangements if the scope of his engagement changed."  Lawyer acknowledged in writing to Client that he would need to be admitted pro hac vice in Florida and to associate with Florida counsel.  Subsequently Lawyer agreed to perform legal services for Client in the estate matter.  Lawyer wrote another letter to Client again stating that he was not admitted to practice in Florida and would need to bring in a Florida-admitted lawyer.  Lawyer contacted a Florida law firm about its possible involvement, but the firm was never hired.

    Ultimately the case was settled at mediation.  The day before the hearing to approve the settlement, Lawyer went to Client's home and asked her to sign the agreement and another document "which obligated [Client] to write a check to [Lawyer] in the amount of $1,000,000."  The next morning Client fired Lawyer.  The court approved the settlement and ordered that the $1,000,000 fee be placed into the trust account of one of Client's prior attorneys.  The money was then disbursed to Client.  The court later ordered Client to return the money to the trust account, but she could not do so.

    Client filed a declaratory judgment action against Lawyer, contending that "he had engaged in the unlicensed practice of law and was not entitled to fees for services."  Among other things, Client contended that her fee agreement with Lawyer was void ab initio and unenforceable because he was not admitted to practice law in Florida.  Lawyer counterclaimed.  The trial court "found that [Lawyer] engaged in the unauthorized practice of law and that his retainer agreement was void ab initio" but also ruled that "allowing [Client] to retain the fruits of [Lawyer]’s representation without compensation would be unjust enrichment" and awarded a fee to Lawyer based on quantum meruit.  Client appealed the quantum meruit award, and Lawyer cross-appealed the ruling that the fee agreement was void ab initio.

    The Fourth DCA affirmed.  "The trial court appropriately recognized that [Lawyer]’s letter contract with [Client] was void ab initio based upon Chandris, S.A. v. Yanakakis, 668 So.2d 180 (Fla. 1995).  In Chandris our supreme court held that entering into a contingent fee contract to provide legal services in Florida by an attorney not authorized to practice in this state was void ab initio unless the services provided fit into one of the exceptions permitted in Florida Bar v. Savitt, 363 So.2d 559 (Fla. 1978)."  None of those exceptions applied in the instant case.  The court also observed that the unlicensed practice of law is illegal in Florida.  See F.S. 454.23.  "To award fees for illegal activities is contrary to public policy."

    The court further stated that reversal of the quantum meruit fee award was required by its decision in Vista Designs, Inc. v. Silverman, 774 So.2d 884 (Fla. 4th DCA 2001), which followed Chandris.

    The court also rejected Lawyer's claim that his conduct was permissible under the 2005 amendments to Florida Rule of Professional Conduct 4-5.5, concerning multijurisdictional practice.  Morrison v. West, 30 So.3d 561 (Fla. 4th DCA 2010).

Trial court erred by assessing costs against State Attorney's Office as sanction for criminal case discovery violation.  [Added 2/17/10]

    The trial court entered an order taxing costs against the State Attorney's Office as a sanction for a discovery violation in a criminal case.  The State Attorney's Office petitioned the Third DCA for a writ of certiorari.

    The appellate court granted the petition and quashed the order.  "The trial court does not have inherent authority to assess costs against the State Attorney’s Office in criminal cases.  State v. Shelton, 584 So.2d 1118 (Fla. 5th DCA 1991); State v. Hardwood, 488 So.2d 901 (Fla. 5th DCA 1986)."  State v. Nelson, 27 So.3d 758 (Fla. 3d DCA 2010).

Motion to determine attorney's fees not untimely though filed 11 months after final judgment that reserved jurisdiction to determine amount of fees.  [Added 2/15/10]

    In June 2007 a final summary judgment was rendered for Appellant.  In the judgment, the trial court awarded Appellant attorney's fees and costs and reserved jurisdiction to determine the amounts of those awards.  Eleven months later Appellant filed its motion to determine fees and costs.  Appellee contended that the motion was untimely because it was not filed within the 30-day period mandated by Fla.R.Civ.P. 1.525.  The trial court agreed and denied the motion as untimely.

    The Third DCA reversed on appeal.  Quoting from Amerus Life ins. Co. v. Lait, 2 So.3d 203, 207 (Fla. 2009), the court pointed out that the Florida Supreme Court has held that Rule 1.525 "'does not apply when the 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.'"  The court further stated that, in the instant case, "the prevailing party’s entitlement to attorneys’ fees had already been determined, and the trial court merely reserved jurisdiction to determine the amounts.  Although the eleven-month delay in this case exceeds the eight-month delay in Amerus, we do not believe that distinction makes a difference in the analysis or outcome."  Ramle International Corp. v. Greens Condominium Ass'n, Inc., 32 So.3d 647 (Fla. 3d DCA 2010).

Trial court erred in ordering JAC to pay lawyer's fee where JAC objected and trial court did not hold hearing on objection.  [Added 2/15/10]

    The trial court appointed Lawyer to represent Mother in a dependency proceeding.  The Justice Administrative Commission ("JAC") paid Lawyer's bill of $1000.  The Department of Children and Families filed a petition to terminate Mother's parental rights.  Mother was served but failed to appear at the termination hearing.  At the hearing the court appointed Lawyer to represent Mother.  The court entered an order terminating Mother's parental rights.

    Lawyer billed JAC for her representation of Mother.  JAC objected, "asserting that it did not have statutory authority to pay because the parent must be present in the court at the time counsel is appointed."  At JAC's suggestion, Lawyer filed a petition for compensation in circuit court.  The petition noted JAC's objection and requested a hearing.  The circuit court did not hold a hearing but instead entered an order directing JAC to pay Lawyer's bill.  JAC petitioned the Fifth DCA for a writ of certiorai.

    The appellate court granted the petition and quashed the circuit court's order.  The order awarding Lawyer's fee "should not have been entered without giving JAC the opportunity to be heard on its objection."

    The court further stated:  "We also direct the circuit court’s attention to the recent opinions of Justice Administrative Commission v. Harp, 2009 WL 5150300 (Fla. 5th DCA Dec. 31, 2009) (holding that circuit court lacked statutory authority to appoint counsel for mother who voluntarily executed a written surrender of parental rights; JAC not required to pay counsel for mother’s legal representation at the termination of parental rights proceeding under these facts), and Justice Administrative Commission v. Berry, 5 So. 3d 696 (Fla. 3d DCA 2009) (holding circuit court departed from essential requirements of law in requiring JAC to pay attorney’s fees for counsel appointed to represent fathers in termination proceedings where fathers did not appear at the proceedings, thereby consenting to the termination of their parental rights, and their indigency could not be determined)."  Justice Administrative Comm'n v. Gayden, 28 So.3d 162 (Fla. 5th DCA 2010).

    NOTE:  See also Justice Administrative Comm'n v. Biecker, 33 So.3d 827 (Fla. 5th DCA 2010).

First DCA interprets contingent fee contract in favor of clients in breach of contract action against former lawyer.  [Added 1/20/10]

    Clients were represented by Lawyer in a personal injury matter.  Lawyer filed a complaint and engaged in "protracted settlement negotiations."  The defendants in the case never filed an answer.  Lawyer obtained a recovery for Clients.  Lawyer charged 40% of the recovery as his fee, but Clients asserted that he was entitled to only 33 1/3 % under the representation contract.

    The contract provided in pertinent part:  "As compensation for services, I agree to pay said attorney a contingent fee computed as follows: (1) 33 1/3% of any recovery up to $1 million through the time of filing of an answer or the demand for appointment of arbitrators; (b.) 40% of any recovery up to $1 million through the trial of the case; (c.) 30% of any recovery between $1-2 million; (d.) 20% of any recovery in excess of $2 million; (e) if all defendants admit liability at the time of filing an answer and request a trial only on damages; (I) 33 1/3% of any recovery up to $1 million through trial; (ii) 20% of any recovery between $1-2 million; (iii) 15% of any recovery in excess of $2 million; (f) an additional 5% of any recovery after notice of appeal is filed or post-judgment relief or action is required for recovery on the judgment."  Clients sued Lawyer, alleging that Lawyer breached the contract.  The trial court entered a judgment for Lawyer, finding "that 'the language in the contract ‘through the time of filing of an Answer’ deals with a time frame and does not require the actual filing of an Answer to bring the 40% provision into effect. . . .'  Thus, the trial court found that [Lawyer] did not breach the contract."

    Clients appealed.  The First DCA reversed.

    Even though no answer was filed in the underlying case, Lawyer contended that "a 40 percent contingency fee would be authorized under rule 4-1.5(f)(4)(B), Rules Regulating the Florida Bar, which governs contingency fee contracts, and that the subject contingency fee contract should be interpreted in accordance with the rule."  The court noted that, under this rule, "a contingent fee agreement may provide for a contingent fee of 40 percent of any recovery if no answer is filed and the time period for filing an answer has expired.  If the contract here had adopted the language of the rule, we would agree with [Lawyer]’s argument.  The contract before us, however, differs from the rule.  The representation agreement provides that [Lawyer] will be paid '33 1/3% of any recovery . . . through the time of filing of an answer. . . .'  The agreement does not provide for the situation in which no answer is filed, but the time period for filing an answer has expired.  Accordingly, under the unambiguous language of the contract, because no answer was filed, [Lawyer]’s fee was limited to 33 1/3 percent of the recovery."  Rose v. Steigleman, 32 So.3d 644 (Fla. 1st DCA 2010).

Trial court erred by including certain "overhead" items as taxable costs.  [Added 1/14/10]

    The trial court entered a final judgment for Buyers against Seller.  The judgment awarded attorney's fees, paralegal's fees, and costs.  Seller appealed, contending that the court erred in the award.  The Fifth DCA affirmed as to the awards of attorney's fees and paralegal's fees, but reversed and remanded regarding the award of taxable costs.

    "We conclude it was improper for the trial court to tax the following overhead costs to the Seller: postage, online research, facsimile charges, courier services, photocopies,  scanning documents and trial supplies.  Although the Seller contested costs billed to the clients for parking, overtime paralegal work, after-hours heating and air conditioning, mileage, meals and long distance phone calls, it appears these charges were deducted from the amount requested in the attorney's fee affidavit and were not part of the final award.  If not, on remand, these costs should be deducted."  The Landmark Winter Park, LLC v. Colman, 24 So.3d 787 (Fla. 5th DCA 2009).

Eminent domain law does not provide for recovery of attorney's fees related to threatened condemnation action that was not filed or settled.  [Added 1/11/10]

    County threatened to bring a condemnation action against landowners.  County later "abandoned the project before settling with the property owners or filing a condemnation action against them."  Landowners requested reimbursement of their attorney's fees and costs.  County refused.  Landowners brought suit.  The trial court "agreed with [Landowners] that perhaps fees and costs should be compensable under these circumstances, but found that they were not compensable under present Florida law."  (Emphasis by court.)

    Landowners' law firm, appraisal firm, and land planning company appealed.  The Fifth DCA affirmed, rather reluctantly.

    F.S. sec. 73.015(4) "expressly authorizes an award of attorney's fees and costs to landowners only when 'settlement is reached . . . prior to a [condemnation] lawsuit being filed.'  Here, Appellants allege that no pre-suit settlement occurred.  Thus, section 73.015(4), by its plain language, does not authorize a recovery in this case."

    Nor did F.S. sec. 73.091(1) provide a basis for the fees and costs.  That statute "states in pertinent part that:  'The petitioner shall pay attorney's fees as provided in s. 73.092 as well as all reasonable costs incurred in the defense of the proceedings in the circuit court, including, but not limited to, reasonable appraisal fees . . .'  (Emphasis added [by court]).  This statute plainly authorizes only fees and costs 'incurred in the defense of the proceedings in the circuit court.'  Such proceedings are initiated by the filing of a petition.  For purposes of awarding fees under this statute, this court has previously held that '[n]othing short of a petition which adheres to the statutory guidelines will commence condemnation proceedings under chapter 73.'  Dep't of Envtl. Protection v. Gibbins, 696 So.2d 888, 890 (Fla. 5th DCA 1997)."

    The court, however, did express sympathy with the appellants' position.  "Finally, we note that both Appellants and the County make policy arguments as to why fees and costs should or should not be recoverable in this context.  Although we agree with the trial judge that Appellants arguments appear more persuasive, they are not proper considerations for an appellate court called upon to apply an unambiguous statute.  Rather, these arguments should be advanced to the Legislature."  Calhoun, Dreggors & Associates v. Volusia County, 26 So.3d 624 (Fla. 5th DCA 2009).

Trial court should not have ordered Justice Administrative Commission to pay fees of mother's court-appointed private counsel in termination of parental rights proceeding.  [Added 1/11/10]

    Lawyer was appointed to represent Mother in a dependency case.  While that case was ongoing, Mother voluntarily surrendered her parental rights in writing.  A termination of parental rights action was then filed, and the trial court appointed Lawyer to represent Mother in that action.  After conclusion of the termination case, Lawyer petitioned the trial court for attorney's fees.  The Justice Administrative Commission ("JAC") "objected, arguing that because the mother voluntarily executed a written surrender of parental rights, she had no right to court-appointed counsel."  The court ordered the JAC to pay the fees.  The JAC appealed.

    The Fifth DCA reversed.  F.S. sec. 39.807(1), which authorizes appointment of counsel in termination proceedings, contains an exception that provides:  "This subsection does not apply to any parent who has voluntarily executed a written surrender of the child and consent to the entry of a court order therefor."  Accordingly, the appeals court concluded:  "By its plain language, section 39.807(1)(d) does not authorize the court to appoint counsel to a parent who has executed a voluntary written surrender of his or her parental rights.  . . .  [U]nder the circumstances presented here, the circuit court had no authority to appoint counsel for the mother, and the JAC is not required to pay any attorney's fees for the termination proceeding."  (Footnote omitted.)  Justice Administrative Comm'n v. Harp, 24 So.3d 779 (Fla. 5th DCA 2009).

Party that prevailed in breach of contract action can recover as damages its attorney's fees from related declaratory judgment action.  [Added 12/8/09]  --  Capitol Environmental Services, Inc. v. Earth Tech, Inc., 25 So.3d 593 (Fla. 1st DCA 2009).

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)

Per Fourth DCA, general proposal for settlement applying to case that includes both claims for damages and other claims is not grounds for attorney's fees award under F.S. 768.79.  [Added 12/2/09]  --  Palm Beach Polo Holdings, Inc. v. Equestrian Club Estates Property Owners Ass'n, Inc., 22 So.3d 140 (Fla. 4th DCA 2009).

First DCA affirms trial court's rejection of foreclosing lender's claim under note for attorney's fees equal to 10% of principal sum due.  [Added 11/29/09]  --  Coastal Community Bank v. Jones, 23 So.3d 757 (Fla. 1st DCA 2009).

First DCA rules that expert testimony can support imposition of multiplier in attorney's fee award in PIP action.  [Added 11/29/09]  --  Massie v. Progressive Express Ins. Co., 25 So.3d 584 (Fla. 1st DCA 2009).

Judge of Compensation Claims erred in dismissing substituted counsel's charging lien before claimant had settled case.  [Added 10/16/09]  --  Zaldivar v. Florida Transport 1982, Inc., 19 So.3d 1093 (Fla. 1st DCA 2009).

Trial court erred in awarding fees pursuant to proposal for settlement that was rejected before plaintiff pleaded or proved additional damages not contemplated when proposal was made.  [Added 10/6/09]  --  Segundo v. Reid, 20 So.3d 933 (Fla. 3d DCA 2009).

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).

Former employer cannot recover attorney's fees from third party who knowingly aids and abets former employees' violations of restrictive covenant.  [Added 9/21/09]  --  Bauer v. Dilib, Inc., 16 So.3d 318 (Fla. 4th DCA 2009).

Judge of Compensation Claims properly denied fee to lawyer who did not timely prove that his services secured claimant's benefits.  [Added 9/2/09]  --  Richard E. Zaldivar, P.A. v. Shaboun, 19 So.3d 397 (Fla. 1st DCA 2009).

Lawyer appointed from "Involuntary Appointment List" to represent defendant in complex RICO prosecution should have been permitted to withdraw.  [Added 8/18/09]  --  Hagopian v. Justice Administrative Commission, 18 So.3d 625 (Fla. 2d DCA 2009).

Fourth DCA applies "limited exception" to requirement that demand for attorney's fees must be made in a pleading.  [Added 8/14/09]  --  Save On Cleaners of Pembroke II Inc. v. Verde Pines City Center Plaza LLC, 14 So.3d 295 (Fla. 4th 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).

Prejudgment interest on attorney's fees and costs awarded pursuant to charging lien runs from date former client received settlement proceeds.  [Added 8/11/09]  --  McCarthy v. Estate of Krohn, 16 So.3d 193 (Fla. 4th DCA 2009).

Denying motion for appellate attorney's fees, First DCA reminds lawyers of pleading requirements for such motions.  [Added 8/1/09]  --  Welch v. Welch, 22 So.3d 153 (Fla. 1st 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).

Where there are competing claims for prevailing party attorney's fees, trial court should make determination after evidentiary hearing.  [Added 7/23/09]  --  Vose v. Gulfside Construction Services, Inc., 12 So.3d 322 (Fla. 2d DCA 2009).

Settlement proposal by one party conditioned on release of claims against offeror and another party was not "joint proposal" under offer of judgment statute.  [Added 7/21/09]  --  Alioto-Alexander v. Toll Bros., Inc., 12 So.3d 915 (Fla. 4th DCA 2009).  NOTE:  See also Eastern Atlantic Realty and Investment, Inc. v. GSOMR LLC, 14 So.3d 1215 (Fla. 3d DCA 2009) ("We conclude that the trial court erred in finding that the proposal constituted a joint proposal on behalf of BJV and GSOMR that failed to apportion or differentiate the amount offered between them.  While both BJV and GSOMR are identified in the proposal, the proposal explicitly states that BJV was the party making the offer to pay Eastern $20,000.).

First DCA imposes appellate attorney's fees against party and her lawyer as sanction under F.S. 57.105.  [Added 7/15/09]  --  Long v. AvMed, 14 So.3d 1264 (Fla. 1st DCA 2009).

Trial court did not err in awarding attorney's fees to party that did not plead entitlement to fees incurred during court-ordered, nonbinding arbitration.  [Added 7/2/09]  --  Cooper v. Marriott International, Inc., 16 So.3d 156 (Fla. 4th DCA 2009).

Justice Administrative Commission not responsible for paying fees of lawyer appointed to represent indigent grandmother in dependency proceeding.  [Added 6/30/09]  --  Justice Administrative Commission v. Grover, 12 So.3d 1256 (Fla. 1st DCA 2009).

    Note:  See also Justice Administrative Commission v. Stanford, 16 So.3d 1003 (Fla. 1st DCA 2009).

Plaintiffs who chose not to pursue case when foreign arbitration was ordered must pay prevailing party fees to defendants.  [Added 6/28/09]  --  Frazier v. Dreyfuss, 14 So.3d 1183 (Fla. 4th DCA 2009).

Court may individually assess personal representative for attorney's fees resulting from frivolous litigation, even absent bad faith finding.  [Added 6/21/09]  --  Geary v. Butzel Long, P.C., 13 So.3d 149 (Fla. 4th DCA 2009).

In insurance cases Fifth DCA not authorized to award attorney's fees to insured who unsuccessfully petitions for certiorari, regardless of whether insured ultimately prevails.  [Added 6/21/09]  --  Grider-Garcia v. State Farm Mutual Automobile, 14 So.3d 1120 (Fla. 5th DCA 2009).

Whether suit is filed before or after insurer invokes right to appraisal does not determine whether insured may recover attorney's fees.  [Added 6/9/09]  --  Lewis v. Universal Property and Casualty Co., 13 So.3d 1079 (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.