Although insurer admitted coverage prior to being served with complaint, its delay in paying claim results in award of fees to insured.  [Added 1/26/12]

    Insured was in an auto accident in which he allegedly was hurt and his vehicle damaged.  Insurer initially contended that Insured was not covered due to non-payment of premium.  Insured hired counsel and filed suit.  The complaint referenced only bodily injuries.  Prior to being served, Insurer informed Insured that his policy that been reinstated.  Insured then amended his complaint to allege Insurer's refusal to pay the property damage claim.  Insurer paid the claim approximately 9 months after the accident.

    Insured sought an award of attorney's fees and costs under Fla.Stat. sec. 627.428(1) (2009).  Insurer defended by asserting that Insured was not "forced" to file suit to obtain coverage.  The trial court awarded fees, but only for work performed up until the date on which Insurer admitted coverage.  The court "refused to award [Insured] fees through the date on which payment was made for his property damage claim, ostensibly finding that [Insured] had not been forced to file suit to obtain coverage for his property damage claim."  Insured appealed.

    The Fifth DCA reversed and remanded for an award of additional fees.  Although Insurer apparently thought the accident was staged, there was no evidence in the record supporting its suspicion.  "A delay of nine months from the date of the accident until the tender of payment is not reasonable under the facts and circumstances presented.  [Insurer]'s belated recognition of coverage does not effectuate repair of the vehicle and is little solace to the policy holder who is without transportation.  [Insured] was forced to secure counsel to both respond to the initial denial of coverage and to subsequently litigate over the delay in payment.  The trial court erred in not awarding attorney's fees for the reasonable and necessary hours spent in pursuing those claims.  His counsel may also recover reasonable fees incurred in establishing entitlement to fees.  See State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 832-33 (Fla. 1993)."  (Footnote omitted.)  Barreau v. Peachtree Casualty Ins. Co., ___ So.3d ___ (Fla. 5th DCA, No. 5D10-3637, 1/20/2012).

Attorney's fee award to insured is not a "covered claim" that FIGA is responsible for, per Florida Supreme Court.  [Added 1/23/12]

    Resolving conflict among District Courts of Appeal, the Florida Supreme Court concluded that an attorney's fee award to an insured under Fla.Stat. sec. 627.428(1) (2008) is not a covered claim under section 631.54(3) that the Florida Insurance Guaranty Association ("FIGA") must pay.

    Insured's house sustained hurricane damage.  Insured filed suit against Insurer to compel an appraisal under the policy.  She later filed a motion to confirm the appraisal award and for an award of attorney's fees pursuant to section 627.428.  Insurer became insolvent, and FIGA ultimately paid the claim.  Relying in part on Florida Ins. Guaranty Ass'n v. Soto, 979 So.2d 964 (Fla. 3d DCA 2008), the trial court ruled that under section 631.57(1) the fee award was a covered claim that existed before Insurer's insolvency and thus FIGA was responsible for paying it.  On appeal the Second DCA reversed and certified conflict with Soto.  Florida Ins. Guaranty Ass'n v. Petty, 44 So.3d 1191 (Fla. 2d DCA 2010).

    The Florida Supreme Court approved Petty and disapproved Soto.  The purpose of the fee award provision of section 627.428 is to discourage insurers from contesting legitimate claims and to reimburse insureds for the attorney's fees that they incur when they must enforce their policies in court against the insurer.  Under section 631.57(1)(a), FIGA is "obligated to the extent of covered claims existing" prior to an insurer's insolvency.  Reviewing the statutory definition of "covered claim," the Court stated that "a covered claim must meet two distinct requirements:  (1) it must arise, or originate, from an insurance policy and (2) it must be within the coverage of, or be included within the risks taken on and losses protected against in, an insurance policy."  (Footnote omitted.)

    The Court pointed out that Insured's "underlying policy does not expressly provide coverage for her section 627.428(1) fee award."  Furthermore, the Court rejected Insured's contention that the fee award "is implied covered by her underlying policy because Florida law subjects every Florida insurance policy to section 627.428(1)."  Even though section 627.428 is an implicit part of the policy, it is not part of the policy's coverage.  "There is a clear difference between an obligation to pay fees that is imposed by operation of law upon a party due to its behavior under the insurance contract and an obligation imposed upon a party by an express provision for which the party contracted.  Section 627.428(1) imposes the obligation to pay a fee award upon an insurer that has wrongfully contested an insured's valid claim.  It does not alter the coverage provisions of the insurance contract itself."  (Footnote omitted.)  Petty v. Florida Ins. Guaranty Ass'n, __ So.3d ___ (Fla., No. SC10-2097, 1/19/2012).

Lawyer who failed to testify in support of his attorney's fee request precluded from receiving award of fees.  [Added 1/23/12]

    A condominium association was awarded attorney's fees as the prevailing party in a suit.  The losing unit owners appealed the award of attoney's fees to lawyer Perez-Martinez.  The Fourth DCA reversed, agreeing with the unit owners "that it was error to award fees to attorney Perez-Martinez.  Perez-Martinez failed to testify at the hearing and is therefore precluded from an award of attorney’s fees.  See Quality Holdings of Fla., Inc. v. Selective Invs., IV, LLC, 25 So.3d 34 (Fla. 4th DCA 2009). On remand, the trial court shall issue an amended order which does not include hours billed by Perez-Martinez."  Neitlich v. Thirty-Three Sixty Condominium Ass'n, Inc., __ So.3d ___ (Fla. 4th DCA, No. 4D10-3052, 1/18/2012).

Marital settlement agreement purporting to limit right to request pre-dissolution temporary support or fees violates public policy and is unenforceable.  [Added 1/14/12]

    Husband and Wife were married in 1991.  They separated and initiated divorce proceedings in 1998.  After entering a marital settlement agreement (the "MSA") that was never approved by the court, the spouses reconciled and their case was dismissed.  The MSA provided, inter alia, that in a subsequent action for interpretation or enforcement of the MSA the prevailing party would be entitled to attorney's fees and that in any action to terminate the marriage each party would be responsible for his or her own fees.

    In 2009 Wife filed a dissolution action.  Her petition did not mention the MSA.  Husband stipulated to temporary alimony and a temporary award of $15,000 in fees and costs.  Later Wife moved for an increase in temporary alimony and additional temporary fees and costs.  A hearing was set.  Husband then raised the MSA provisions as a defense to Wife's claims.  Based exclusively on the MSA, the trial court granted Husband's motion to strike the hearing on additional temporary alimony and attorney's fees.  Wife appealed.

    The Fourth DCA reversed, noting that its decision was controlled by Belcher v. Belcher, 271 So.2d 7 (Fla. 1972).  Under Belcher and Lashkajani v. Lashkajani, 911 So.2d 1154 (Fla. 2005), "public policy prevents a spouse from contracting away his or her obligation of support during the marriage."

    Regarding attorney's fees, although Lashkajani ruled that a provision in a pre-nuptial agreement for prevailing party fees in the event of action over the enforceability or validity of the agreement was enforceable, but the Court "did not reach the question of whether an agreement’s limitations on pre-dissolution support may likewise be enforced" and did not address "whether the trial court may order temporary attorney’s fees in spite of the agreement’s prevailing party provision."

    Florida has a long-standing policy against enforcing waivers of pre-dissolution support.  That policy "draws no distinction between prenuptial and postnuptial agreements."  Accordingly, the court concluded:  "We must continue to follow Belcher, which holds that pending dissolution of marriage, public policy and the statutory obligation of support permits the award of temporary attorney’s fees to a spouse even where an agreement provides that the parties will each pay their own attorney’s fees or that the prevailing party is entitled to fees in any litigation over the validity of the agreement."  (Emphasis by court.)  Khan v. Khan, __ So.3d ___ (Fla. 4th DCA, No. 4D11-460, 1/11/2012).

Error to award prevailing party fees to party that cannot prevail because its complaint failed to state a cause of action.  [Added 1/12/12]

    Homeowners failed to demonstrate proof of insurance as required by the covenants of the homeowner's Association.  The Association filed suit seeking a permanent injunction requiring Homeowners to obtain the required coverage.  Homeowners moved to dismiss, alleging that Association "failed to sufficiently establish that it lacked an adequate remedy at law to justify injunctive relief."  The covenants provided that, if an owner failed to provide proof of insurance, Association could buy the insurance and asses the cost to the owner.  The trial court denied the motion to dismiss.  Sometime after the suit was filed, Homeowners obtained insurance.  The trial court dismissed the complaint as moot but awarded prevailing party attorney's fees to Association.  Homeowners appealed.

    The Second DCA reversed.  "We agree with [Homeowners] that the Association cannot be considered the prevailing party because it did not state a cause of action for injunctive relief in its complaint.  See Shaw v. Tampa Elec. Co., 949 So.2d 1066, 1069 (Fla. 2d DCA 2007) (''A mandatory injunction is proper where a clear legal right has been violated, irreparable harm has been threatened, and there is a lack of an adequate remedy of law.'' (quoting Dep't of Health & Rehab. Servs. v. Weinstein, 447 So.2d 345, 345 (Fla. 4th DCA 1984))); see also Digaeteno v. Perotti, 374 So.2d 1015, 1016 (Fla. 3d DCA 1979) (concluding that 'the trial judge erred in resorting to equity and entering the mandatory injunctions' where the plaintiff had 'an adequate remedy at law').  By its own pleadings, the Association acknowledged that it had an available remedy at law."

    In closing, the court commented that it was "not unsympathetic" to the Association's having to incur fees and costs in order to obtain compliance with the covenants.  "However, this opinion addresses only whether courts can award fees based on a prevailing party theory where that party can never prevail because the complaint, on its face, fails to state a cause of action.  Because this impossibility prevents the award of fees to the Association in this action, we are compelled to reverse that award."  Alorda v. Sutton Place Homeowners Ass'n, Inc., __ So.3d __ (Fla. 2d DCA, No. 2D10-3966, 1/6/2012).

F.S. 766.206(2) does not authorize award for post-suit expenses incurred litigating entitlement to attorney's fees.  [Added 1/3/12]

    The trial court entered an award of attorney's fees against Staples.  The award was based on Fla.Stat. sec. 766.206(2) (2007).  On appeal he challenged the portion of the order awarding post-suit costs, including the fees incurred post-suit litigating entitlement to attorney's fees.

    The First DCA agreed and reversed.  "[S]ection 76.206(2) [sic] provides only for those fees incurred 'during the investigation and evaluation of the claim.'  See Kukral v. Mekras, 679 So.2d 278, 281 n.2 (Fla. 1996) (stating section 766.206(2) imposes fees only 'for the expense and effort that one party may have unnecessarily caused the other to incur during the pre-suit period').  This language limits the provision’s reach to only fees incurred during the pre-suit phase.  It does not extend to expenses incurred after the suit has been filed, such as the fees/costs associated with post-suit litigation over entitlement to fees."  See Rodriguez v. Campbell, 778 So.2d 511 (Fla. 4th DCA 2001).  Staples v. Duerr, __ So.3d ___ (Fla. 1st DCA, No. 1D11-2725, 12/30/2011).

Court erred in awarding fees for proceedings in Florida Supreme Court when there was no motion requesting them filed in Supreme Court.  [Added 1/3/12]

    A circuit court awarded attorney's fees for proceedings in the Florida Supreme Court following the denial of a motion for rehearing in the appeals court..  The First DCA reversed that award.  "In the absence of even a motion for attorney’s fees in the supreme court, there is no basis for an award of attorney’s fees incurred in proceedings in the supreme court.  See Milanick v. Osborne, 6 So.3d 729, 731 (Fla. 5th DCA 2009) (holding Osborne not entitled to attorney’s fees incurred defending against Milanick’s attempt to obtain discretionary review of the Fifth District’s opinion in the supreme court where Osborne 'did not request an award of fees incurred with respect to the supreme court proceedings'); Respiratory Care Servs., Inc. v. Murray D. Shear, P.A., 715 So. 2d 1054, 1056 (Fla. 5th DCA 1998) (holding motion for attorney’s fees was necessary predicate)."  UniFirst Corp. v. City of Jacksonville, __ So.3d ___ (Fla. 1st DCA, No. 1D09-0820, 12/30/2011).

Court erred in applying "prevailing party" test in denying insured's claim for fees under F.S. 627.428.  [Added 12/29/11]

    Insured was engaged in a claim dispute with his automobile insurer, GEICO, after GEICO made only what Insured considered partial payment toward a loss.  Insured sued GEICO.  GEICO counterclaimed, alleging that Insured made fraudulent misrepresentations regarding ownership of the vehicle and seeking refund of money paid toward repair of the vehicle.  At court-ordered arbitration the arbitrator ruled that a material misrepresentation by Insured barred further recovery, but that Insured did not have to refund the payment already made by GEICO.

    GEICO moved for attorney's fees based on a $100.00 proposal for settlement that it had made pursuant to Fla.Stat. sec. 768.79.  The trial court awarded the fees.  Insured's motion for fees under Fla.Stat. sec. 627.428 was denied.

The Fourth DCA concluded that Insured was entitled to a fee award under section 627.428 and that GEICO was entitled to a fee award under section 768.79.  The court pointed out that "[t]he parties’ respective fee awards are mutually exclusive because they involve totally different claims and were based on different statutory provisions.  See Tierra Holdings, Ltd. v. Mercantile Bank, 36 Fla.L.Weekly D1049 (Fla. 1st DCA May 18, 2011).  GEICO’s proposal for settlement was strictly limited to [Insured]’s original complaint concerning insurance coverage.  Conversely, [Insured]’s claim for fees was for successfully defending GEICO’s counterclaim for fraud."  Rodriguez v. Government Employees Ins. Co., __ So.3d ___, 36 Fla.L.Weekly D2788 (Fla. 4th DCA, No. 4D10-4617, 12/21/2011), 2011 WL 6373033.

Evidentiary hearing required to determine proper fee award after substantial underlying judgment is reversed.  [Added 12/6/11]

    An $8.5 million judgment was entered in favor of ASV against River Bridge.  Approximately 85% of the judgment amount was based on a contractual right of first refusal claim.  The award for breach of the right of first refusal was reversed, but the award on the other claims was affirmed.  Consequently, the judgment was lowered by 85%.  River Bridge, then moved for relief from a $3.5 million award of prevailing party attorney’s fees that was based on a lodestar amount and a contingency multiplier of 2.0.  The trial court denied the motion without a hearing.  River Bridge appealed.

    The Fourth DCA reversed, concluding that a hearing is necessary to determine the proper attorney’s fee award.”  The court noted that, pursuant to Fla.R.Civ.P. 1.540(b)(5), a fee award based on a judgment that is later reversed may also be “reversed or otherwise vacated.”  The question gets more complicated, however, where – as here – the underlying action was brought on multiple counts.  Ordinarily, the party prevailing on the significant issues is considered the prevailing party for purposes of a fee award.  “However, in a multicount action, where each claim is separate and distinct and would support an independent action, as opposed to being an alternative theory of liability for the same wrong, the prevailing party on each distinct claim is entitled to an award of attorney’s fees for those fees generated in connection with that claim.”

    In the instant case, an evidentiary hearing was necessary on 2 issues.  First, to determine whether the right of first refusal claim constituted a distinct claim that can be separated from the others.  “Second, even if the trial court concludes that the claims are not separate, the results obtained have drastically changed.  This may or may not require a reduction of the amount claimed.  At the very least, the court should review those significant portions of attorney’s fees and costs related to the proof of damages which was entirely rejected in our prior opinion and caused the reversal of the damage award.”  River Bridge Corp. v. American Somax Ventures, __ So.3d ___, 36 Fla.L.Weekly D2615 (Fla. 4^th DCA, Nos. 4D09-1589, 4D10-857, 11/30/2011), 2011 WL 5964335.

F.S. 57.105 does not authorize fee award solely against party's lawyer when case against lawyer's client has been dismissed and claim for fees against client was waived.  [Added 11/23/11]

    Appellants were engaged in an administrative dispute with Lawyer's Client.  Lawyer filed a motion under Fla.Stat. sec. 57.105(1) (2010) for attorney's fees against Appellants, alleging that they knew or should have known that the claims in their petition were not supported by material facts.  Appellants responded with a section 57.105 motion for fees against Client and Lawyer.

    Lawyer subsequently withdrew from the case.  Not long thereafter, Client negotiated a settlement with Appellants.  Appellants filed a notice of voluntary dismissal that waived their claim for fees against Client.  Appellants, contended, however, "that their withdrawal of their motion for attorney’s fees did not apply to releasing [Client]’s prior attorney, [Lawyer], from liability for fees."  The Administrative Law Judge denied the motion for fees against Lawyer, ruling that "because appellants withdrew their motion for attorney’s fees against [Client], they no longer had a claim against [Lawyer] for filing a baseless attorney’s fees motion."  Appellants appealed.

    The Fourth DCA affirmed.  "The plain language of section 57.105(1) is clear and unambiguous; it does not authorize attorney’s fees to be awarded solely against a party’s attorney.  . . .  A plain reading of the statute does not support an attorney’s fee award solely against a party’s attorney where, as here, the case against the attorney’s client had been dismissed and the claim for attorney’s fees against the attorney’s client has been waived."  Sexton v. Ferguson, __ So.3d ___, 36 Fla.L.Weekly D2489 (Fla. 4th DCA, No. 4D10-2826, 11/16/2011), 2011 WL 5554809.

Florida Consumer Collection Protection Act applies when law firm proceeds against former client for unpaid fees.  [Added 11/20/11]

    Law Firm sued Former Client for unpaid fees.  Former Client counterclaimed, alleging that Law Firm and one of its partners, Lawyer, violated the Florida Consumer Collection Practice Act (the "FCCPA").  Lawyer moved to dismiss on the ground that the defendants are not "debt collectors."  The court granted the motion to dismiss and awarded sanctions against Former Client and her counsel under Fla.Stat. sec. 57.105 for bringing a claim that the court believed was not supported by Florida law.  Former Client and her counsel appealed.

    The First DCA reversed.  Defendants conceded that the trial court erred in ruling that the FCCPA only applied to "debt collectors."  The First DCA further determined that a debt need not "flow from an extension of credit" in order to be considered a "debt" under the FCCPA.  "[T]he trial court erred as a matter of law in entering the order dismissing the counterclaim.  [Former Client] incurred an obligation in connection to a transaction with [Lawyer and Law Firm] for the provision of legal services.  [Former Client]’s obligation to the law firm falls within the definition of debt in section 559.55(1).  Accordingly, the final judgment must be reversed.  We also reverse the award of attorney’s fees which is incorporated in the final judgment."  Morgan v. Wilkins, __ So.3d ___, 36 Fla.L.Weekly D2524 (Fla. 1st DCA, No. 1D11-0237, 11/16/2011), 2011 WL 5561293.

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]

    An estate was re-opened and a personal representative ("PR") was appointed for the purpose of seeking return of assets to pay a judgment that had been obtained against the estate.  PR hired a law firm to represent him.  Despite entry of a tolling order and the willingness of the trustee of a devisee trust to fund her share of settlement of the claim, PR hired a second law firm ("Thomas").  Almost 9 months later Thomas moved to withdraw on the ground that it was "discharged" by PR, and sought an attorney's fee award.  The court awarded fees to Thomas.

    The Third DCA reversed the fee award.  Fla.Stat.sec. 733.106 (2008) authorizes an award of fees to "[a]ny attorney who has rendered services to an estate."  The lawyer's services, however, must be either necessary or beneficial to the estate in order to justify a fee award.  The appeals court stated:  "While Thomas filed motions for the recapture of assets and to compel mediation as to his motions, we find nothing in the record demonstrating that Thomas’ services were either necessary or beneficial to the Estate."  Davis v. Estate of Davis, __ So.3d ___, 36 Fla.L.Weekly 2435 (Fla. 3d DCA, No. 3D11-560, 11/9/2011), 2011 WL 5375110.

Court erred in awarding appellate attorney's fees against guarantor where neither guaranty nor promissory note provided for such fees.  [Added 11/17/11]

Individual guarantors signed a personal guaranty of a corporate promissory note payable to Goldberg.  The note was not paid and Goldberg successfully sued the guarantors.  Goldberg moved for appellate attorney's fees and costs.  The Third DCA granted the motion as to costs, but denied an award of fees.

    Neither the guaranty nor the promissory note created an entitlement to appellate attorney's fees.  "It is well established that '[a]s a general rule, the guarantor is not liable for attorney's fees and costs in connection with an action to enforce a guaranty where there is no express provision in the guaranty for such liability.'”  (Citations omitted.)  Additionally, "[a]ttorney's fees on appeal under a promissory note are not allowable where [as here] the promissory note contains no specific provision for appellate attorney's fees."  (Citations omitted.)  Pardo v. Goldberg, __ So.3d ___, 36 Fla.L.Weekly D2435 (Fla. 3d DCA, No. 3D10-3404, 11/9/2011), 2011 WL 5375107.

Court erred in denying prevailing party fees on ground that neither party prevailed; Fourth DCA does not recognize "ties".  [Added 11/9/11]

    Tenant leased premises that later were extensively damaged by fire.  Tenant vacated the property and sought return of its security deposit, suing Landlord for breach of contract.  Landlord counterclaimed alleging that Tenant wrongfully abandoned the premises and breached its lease.  Landlord also demanded an acceleration of rent.  Both parties sought attorney's fees under a prevailing party provision in the lease.

    The final judgment provided that Tenant prevailed on its claim that the lease was terminated by the fire and that Tenant was entitled to return of its security deposit, minus a set-off for certain expenses incurred by Landlord.  Tenant also prevailed against Landlord’s counterclaim.  Regarding attorney's fees, however, the trial court denied fees to either party, concluding that “no party prevailed.”  Tenant appealed the denial of fees, arguing that it "prevailed because it succeeded on the significant issues in litigation and [Landlord] obtained no relief on its counterclaim."

    The Fourth DCA reversed.  Tenant was entitled to attorney's fees because Tenant "unquestionably prevailed on all of the significant issues raised" in the case.  "Although some districts recognize that cases can sometimes effectively be 'ties,' such that the parties can both be viewed as winners or losers, we have maintained that ‘[i]n a breach of contract action, one party must prevail.''  Port-A-Weld, Inc. [v. Padula & Wadsworth Construction, Inc.,] 984 So.2d [564] at 569 [(Fla. 4th DCA 2008)] (quoting Lucite Ctr., Inc. v. Mercede, 606 So.2d 492, 493 (Fla. 4th DCA 1992)).  . . .  Much like Port-A-Weld, this case was not even close to a 'tie.'"  Animal Wrappers and Doggie Wrappers, Inc. v. Courtyard Distribution Center, Inc., 73 So.3d 354 (Fla. 4th DCA 2011).

Order determining entitlement but not amount of fees is not ripe for appellate review.  [Added 10/26/11]

    Former Wife appealed from a trial court's order awarding attorney's fees to Former Husband.  The Fifth DCA dismissed the appeal.  "Because the trial court only determined entitlement and did not determine the amount of fees, this issue is not ripe for appellate consideration.  Revier v. Revier, 45 So.3d 570, 571 (Fla. 4th DCA 2010)."  Crowell v. Crowell, 72 So.3d 804 (Fla. 5th DCA 2011).

Court cannot confirm insurance appraisal award that has already been paid and thereby create basis for award of attorney's fees.  [Added 10/24/11]

    Insureds and Insurer disagreed over the amount of a covered loss.  Insurer invoked the policy's appraisal process.  The appraisers selected by the parties initially could not agree on an umpire, and Insureds filed a petition for selection of a neutral umpire.  The parties, however, were able to select an umpire without court action.  The umpire determined the amount of loss and Insurer promptly paid.

    Insureds filed a motion seeking interest, using the same case number assigned to the petition for appointment of an umpire.  At the hearing Insureds "admitted they should have moved to confirm the appraisal award, and made an ore tenus motion to do so.  The trial court granted the motion."  Insureds filed a written motion to confirm the appraisal award and sought interest and attorney's fees.  The trial court awarded both interest and fees.  Insurer appealed.  The Fourth DCA reversed.

    Regarding reversal of the fee award, the court ruled that "a trial court cannot confirm an appraisal award that has already been paid and thereby create a basis for an award [of] attorney’s fees."  The court relied on Federated National Ins. Co. v. Esposito, 937 So.2d 199 (Fla. 4th DCA 2006), which noted that the "laudable goal" of the appraisal process is to "resolve disputes without litigation."  State Farm Florida Ins. Co. v. Silber, 72 So.3d 286 (Fla. 4th DCA 2011).

Insureds should have been awarded fees because FIGA denied their covered claim "by affirmative action".  [Added 10/21/11]

    Insureds sued the Florida Insurance Guaranty Association ("FIGA"), which presumably stepped into the shoes of their insolvent insurer, for breach of contract and declaratory relief.  Insureds alleged that FIGA failed to pay their covered claim.  FIGA filed a motion to dismiss the count for declaratory relief and the action as a whole.  Insureds responded by dismissing the declaratory judgment count.  FIGA filed an answer denying the materials allegations and asserting affirmative defenses in which "FIGA alleged that the insureds’damages '[were] not caused by a covered loss.'"

    Subsequently FIGA invoked the policy's appraisal process.  It paid the full amount of the appraisal award.  Insureds moved to recover attorney's fees from FIGA under Fla.Stat. sec. 627.428(1) (2010).  Fla.Stat. sec. 631.70, however, provides that fees shall not be awarded against FIGA under section 627.428 "except when [FIGA] denies by affirmative action, other than delay, a covered claim or a portion thereof."  The trial court denied the motion for fees on the ground that FIGA's affirmative defenses did not constitute an affirmative denial of the claim.

    Insureds appealed.  The Fourth DCA reversed, concluding that FIGA had denied Insureds' claim by affirmative action and remanding for a fee award.  The court distinguished the recent case of  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:  "This case differs from Ehrlich.  Here, FIGA never filed a motion to stay the proceedings to complete its investigation.  Instead, FIGA filed a motion to dismiss because the insureds’ count for declaratory relief failed to state a cause of action and because the insureds allegedly 'fail[ed] to comply with all post-loss obligations.'  FIGA also moved for an extension of time to respond to the insureds’ count for breach of contract, not to complete its investigation, but because its counsel was 'awaiting receipt of the claim file . . . in order to determine [FIGA’s] appropriate response and/or defenses.'  FIGA then moved to compel the insureds to answer its discovery requests.  Without obtaining a ruling on that motion, and without seeking a further extension of time to respond to the count for breach of contract, FIGA filed its answer to the count for breach of contract.  In the answer, FIGA did not allege merely that the insureds had not complied with all conditions precedent to filing suit such that no coverage existed.  Instead, FIGA asserted eight affirmative defenses, seven of which alleged that the insureds’ damages 'were not caused by a covered loss.'  Thus, without the circuit court ever compelling FIGA to answer the complaint, and without FIGA requesting more time to 'sufficiently' investigate the claim, FIGA explicitly denied the claim by alleging in seven affirmative defenses that the insureds’ damages '[were] not caused by a covered loss.'  We interpret that action, in the context of FIGA’s overall course of conduct, as ' deni[al] by affirmative action.'”  Rahabi v. Florida Ins. Guaranty Ass'n, Inc., 71 So.3d 241 (Fla. 4th DCA 2011).

Court erred in denying fees under F.S. 627.428 on ground that insured's suit against insurer was premature and unnecessary.  [Added 10/19/11]

    Insured made a claim under his auto policy.  Insurer invoked its right to a pre-suit examination under oath.  Insured appeared but became exasperated with the questioning, which revolved around his personal life.  He terminated the examination and then filed suit against Insurer.  Insured ultimately settled and paid the full claim.  Insurer, however, objected to Insured's demand for attorney's fees under Fla.Stat. sec. 627.428 (2008).  The trial court agreed and denied fees.  Its ruling "was based on the notion that the action had been premature and unnecessary and was thus not effective in securing the favorable result."  Insured appealed.

    The Third DCA reversed, criticizing the conduct of Insurer:  "[T]here was never a legitimate defense under the personal property section of his policy.  Unfortunately, however, the carrier apparently decided to use the usual policy provision requiring a sworn statement as a license to make unwarranted and intrusive inquiries into the personal life of any insured who has the temerity to make a claim against it."  Insured was "right" to refuse to respond to "impertinent and improper questions which had nothing to do with the merits of the claim."  Insured's suit was not premature or unnecessary.  The court concluded:  "To hold in these circumstances, as did the trial court, that it was not necessary to file the action and thus that section 627.428 is inapplicable, is to turn reality upon its head.  What actually happened is that [Insured] took [Insurer's lawyer] up on his challenge (and the propriety of his conduct of the sworn statement) and sued the company because, as was obvious, there was no other way to be paid.  So far from being improperly employed, the statute was enacted for the very purpose presented by this case – to discourage the games insurance companies play."  De Leon v. Great American Ins. Co., __ So.3d ___, 36 Fla.L.Weekly D2250 (Fla. 3d DCA, No. 3D09-646, 10/12/2011), 2011 WL 4824135.

Contingent fee agreement requiring immediate payment at hourly rate if client discharges lawyer is unenforceable as matter of law.  [Added 10/12/11]

    Lawyer entered a "Business Matter Contingency Fee Agreement" with Clients concerning a will contest and related litigation.  Among the provisions in the Agreement was the following:  "3. In the event I discharge the firm prior to resolution by judgment or settlement, or if I elect to no longer pursue the Anticipated Claims as identified herein-below, I agree to immediately thereafter pay LAW FIRM accrued hourly legal fees based upon the hourly rates as follows:  Services of [] $500/hr., all other attorneys $400/hr., all paralegals $150/hr., all legal assistants $100/hr. . . ."

    Clients discharged Lawyer before the contingency occurred.  Lawyer then sued Clients for breach of contract, account stated, and quantum meruit.  The trial court ruled that, as there had been no recovery in the matters, Lawyer was not entitled to fees.  Further, the discharge clause constituted a penalty clause in violation of Rule 4-1.5.  Such penalty clauses are against public policy and unenforceable.  See Florida Bar v. Doe, 550 so.2d 1111, 1113 (Fla. 1996).  The court explained:  "A termination-of-services clause in a contingency-fee agreement, which provides for the client to pay the discharged law firm for all services rendered up through the date of termination at the prevailing hourly rate for firm members, if the client abandons or dismisses the claim, violates rule 4-1.5 on its face.  The Fla. Bar v. Hollander, 607 So.2d 412, 414 (Fla. 1992)."

    The court also rejected Lawyer's argument that, in the absence of a valid contract, he should be allowed to claim fees on the basis of quantum meruit.  An action for quantum meruit arises only on the successful occurrence of the contingency – which had not happened here.  Guy Bennett Rubin, P.A. v. Guettler, 73 So.3d 809 (Fla. 4th DCA 2011).

Section 57.105 fees not awarded where losing party presented competent evidence in support of claim but court ruled against it based on conflicting evidence.  [Added 10/12/11]

    Plaintiffs sued Defendants to recover on an alleged loan.  Plaintiffs presented evidence to support their claims.  The trial court, however, ruled in favor of Defendants.  The court also awarded attorney's fees against Plaintiffs under Fla.Stat. sec. 57.105(1) (2006).  Plaintiffs appealed.

    The Second DCA reversed.  The appeals court noted that section 57.105(1) "requires a court to award a reasonable attorney's fee to the prevailing party in equal amounts to be paid by the losing party and the losing party's attorney where the court finds that the losing party or the losing party's attorney knew or should have known that a claim was not supported by the material facts necessary to establish it."  In this case, however, the trial court's ruling that there was no admissible evidence supporting Plaintiffs' claims was contradicted by both the record and the court's own oral pronouncement.  Accordingly, the Second DCA concluded:  "Where, as in this case, the losing party presents competent, substantial evidence in support of the claims or defenses presented and the trial court determines the issues of fact adversely to the losing party based on conflicting evidence, section 57.105(1) does not authorize an award of attorney's fees against the attorney for the losing party and his or her client.  Thus we conclude that the circuit court abused its discretion in awarding attorney's fees against [Plaintiffs]."  Siegel v. Rowe, 71 So.3d 205 (Fla. 2d 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]

    Lawyer entered a "Business Matter Contingency Fee Agreement" with Clients concerning a will contest and related litigation.  Among the provisions in the Agreement was the following:  "3. In the event I discharge the firm prior to resolution by judgment or settlement, or if I elect to no longer pursue the Anticipated Claims as identified herein-below, I agree to immediately thereafter pay LAW FIRM accrued hourly legal fees based upon the hourly rates as follows:  Services of [] $500/hr., all other attorneys $400/hr., all paralegals $150/hr., all legal assistants $100/hr. . . ."

    Clients discharged Lawyer before the contingency occurred.  Lawyer then sued Clients for breach of contract, account stated, and quantum meruit.  The trial court ruled that, as there had been no recovery in the matters, Lawyer was not entitled to fees.  Among other things, the trial court found that "the provision in the Agreement providing for immediate payment of accrued hourly rates upon discharge constitutes a penalty clause in violation of rule 4-1.5, Rules Regulating the Florida Bar (an attorney shall not charge or collect an illegal, prohibited or clearly excessive fee)" and that "no recovery can be had on provisions of a fee agreement that are in violation of the Rules of the Florida Bar therefore, [Lawyer] is not entitled, as a matter of law, to recover fees from [Clients] under Count I of the complaint (breach of contract)."

    The discharge clause constituted a penalty clause in violation of Rule 4-1.5.  Such penalty clauses are against public policy and unenforceable.  See Florida Bar v. Doe, 550 so.2d 1111, 1113 (Fla. 1996).  The court explained:  "A termination-of-services clause in a contingency-fee agreement, which provides for the client to pay the discharged law firm for all services rendered up through the date of termination at the prevailing hourly rate for firm members, if the client abandons or dismisses the claim, violates rule 4-1.5 on its face.  The Fla. Bar v. Hollander, 607 So.2d 412, 414 (Fla. 1992)."

    The court also rejected Lawyer's argument that, in the absence of a valid contract, he should be allowed to claim fees on the basis of quantum meruit.  An action for quantum meruit arises only on the successful occurrence of the contingency – which had not happened here.  Guy Bennett Rubin, P.A. v. Guettler, __ So.3d ___ (Fla. 4th DCA, No. 4D09-5055, 10/5/2011).

Section 57.105 fees not awarded where losing party presented competent evidence in support of claim but court ruled against it based on conflicting evidence.  [Added 10/12/11]

    Plaintiffs sued Defendants to recover on an alleged loan.  Plaintiffs presented evidence to support their claims.  The trial court, however, ruled in favor of Defendants.  The court also awarded attorney's fees against Plaintiffs under Fla.Stat. sec. 57.105(1) (2006).  Plaintiffs appealed.

    The Second DCA reversed.  The appeals court noted that section 57.105(1) "requires a court to award a reasonable attorney's fee to the prevailing party in equal amounts to be paid by the losing party and the losing party's attorney where the court finds that the losing party or the losing party's attorney knew or should have known that a claim was not supported by the material facts necessary to establish it."  In this case, however, the trial court's ruling that there was no admissible evidence supporting Plaintiffs' claims was contradicted by both the record and the court's own oral pronouncement.  Accordingly, the Second DCA concluded:  "Where, as in this case, the losing party presents competent, substantial evidence in support of the claims or defenses presented and the trial court determines the issues of fact adversely to the losing party based on conflicting evidence, section 57.105(1) does not authorize an award of attorney's fees against the attorney for the losing party and his or her client.  Thus we conclude that the circuit court abused its discretion in awarding attorney's fees against [Plaintiffs]."  Siegel v. Rowe, __ So.3d ___ (Fla. 2d, Nos. 2D10-2796, 2D10-2864, 10/5/2011).

Homeowners who successfully resisted claim for a mechanic's lien were prevailing parties and should have been awarded fees.  [Added 9/23/11]

    A consulting company that helped landowners act as their own general contractor ("UBuildIt") filed a mechanic's lien against Homeowners, who contested the lien.  UBuildIt filed suit.  After a non-jury trial the court ruled in favor of Homeowners but also found that UBuildIt had not filed a fraudulent lien.  As a result, the trial court did not award prevailing party attorney's fees to Homeowners.  They appealed.

    The Fifth DCA reversed and remanded on this and other grounds.  "[Homeowners] contend that the trial court erred in failing to award them attorney’s fees as the prevailing parties in the instant case since [Homeowners] successfully resisted UBuildIt’s claim for a mechanic’s lien.  We agree.  See Heidle v. S & S Drywall & Tile, Inc., 639 So.2d 1105, 1106 (Fla. 5th DCA 1994) ('[A] landowner who successfully resists a mechanic’s lien claim is entitled to an attorney’s fee under this section, even if the landowner fails to prevail on a competing claim such as one for slander of title, see O’Kon & Co., Inc. v. Riedel, 588 So.2d 1025 (Fla. 1st DCA 1991), or for breach of contract.  See Java v. Atlas, Inc., Gen. Contractors, 500 So.2d 606 (Fla. 1st DCA 1986).').  On remand, the trial court should determine the amount of fees to award [Homeowner]."  Medellin and MLA Consulting, Inc., 69 So.3d 372 (Fla. 5th 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]

    A trial court awarded attorney's fees to a property owner in an eminent domain matter under Fla.Stat. sec. 73.092 (2008).  The court concluded that an unexecuted contract was the "first written offer" that triggers the fee obligation under the statute.  The condemnor government agency appealed, arguing that a subsequent letter was the first written offer and so the government's liability for the owner's attorney's fees should run from the date of the later letter rather than the earlier unexecuted contract.

    The Fourth DCA agreed and reversed.  The unexecuted contract "failed to constitute the first written offer" because the government's obligation was subject to contingencies and the exercise of discretion.  "[T]he unexecuted contract did not obligate the government to purchase upon the owner’s acceptance.  The government only became obligated if the commission subsequently approved the acquisition and appropriated the necessary funds.  Because the government did not become obligated upon acceptance by the owner, the unexecuted contract was not the first written offer for the purpose of calculating attorney’s fees.  . . .  The last letter sent by certified mail to the owner, in accordance with section 73.015, expressed the government’s offer to purchase the property in certain, definite terms; was immediately binding upon the owner’s acceptance; and, contained no contingencies.  It was the 'first written offer' for purposes of section 73.092.  We therefore reverse and remand the case to the trial court to recalculate the attorney’s fees using the certified letter as the date from which to calculate the benefit achieved."  (Citations omitted.)  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.

Court erred in entering section 57.105 sanctions against party's counsel where there were no findings of frivolous claims or improper delay.  [Added 9/16/11]

    In a foreclosure case the court sanctioned Debtors' counsel under Fla.Stat. sec. 57.105 for filing frivolous pleadings.  Specifically, counsel was sanctioned for filing a "form affidavit" of an expert, Lord, "who opined on the ability of lay persons to distinguish between original and high-quality copies of promissory notes.  Lord did not represent in the affidavit that she reviewed the papers at issue in this case.  Nevertheless, the trial court was distressed by appellants’ counsel’s habit of filing 'the same affidavit in ten different cases, when [Lord] hasn’t seen the documents in this case.'"  Debtors appealed.

    The Fourth DCA reversed.  Bank moved for sanctions under section 57.105, which authorizes a trial court to award a reasonable attorney's fee to the prevailing party where a claim was frivolous or to a party to compensate for the opposing party’s dilatory conduct.  Here, however, the trial court did not find that Debtors' claims were frivolous and did not rule that Lord’s affidavit was filed to cause unreasonable delay.  Accordingly, an award of fees under section 57.105 was improper.  Glarum v. LaSalle Bank National Association, __ So.3d ___ (Fla. 4th DCA, No. 4D10-1372, 9/7/2011).

Settlement proposal was not ambiguous under offer of judgment statute and rule even though proposed release was not attached.  [Added 9/12/11]

    Plaintiff sued Publix Supermarkets after he allegedly was injured by a falling item in a store.  He served a proposal for settlement in the amount of $150,000 pursuant to Fla.Stat. sec. 768.79 (2007) and Fla.R.Civ.P. 1.442.  The proposal provided in part:  "'This proposal for settlement encompasses all damages and expenses associated with this claim even those damages or expenses as to which collateral source payments have been made,' and that [Plaintiff] 'will execute a full release of liability in favor of Publix Supermarkets, Inc., a Florida Corporation and it's [sic] affiliated insurance company, and a Stipulation for Voluntary Dismissal.'  No further summary of the release was included, nor was a copy of the proposed release attached to the proposal."

    After Plaintiff won a jury verdict of more than $278,000, he moved for attorney's fees as a result of the rejected settlement proposal.  Relying on Papouras v. Bellsouth Telecommunications., Inc., 940 So.2d 479 (Fla. 4th DCA 2006), the trial court denied the motion "because the release was neither summarized nor attached to the proposal for settlement."  Plaintiff appealed.

    The Fourth DCA reversed.  The court distinguished Papouras and other cases holding that a proposal for settlement was invalid due to ambiguities regarding the releases.  In those cases there were other actions pending between the parties or other potentially liable parties.  "In this case, there are no other claims, and there are no other potentially liable related parties.  Therefore, under these facts and circumstances, the release provisions of [Plaintiff's] proposal were sufficiently clear, 'leaving no ambiguities so that the recipient can fully evaluate its terms and conditions.'  State Farm [Mutual Auto. Ins. Co. v. Nichols] , 932 So.2d [1067 (Fla. 2006)] at 1079; Papouras, 940 So.2d at 483; [Palm Beach] Polo Holdings [Inc. v. The Village of Wellington] , 904 So.2d [652 (Fla. 4th DCA 2005)] at 653."

    The court concluded by stating that "it is the preferred practice to set forth the terms of a release with particularity, either within the body of the proposal or by attaching the form of the release."  Jones v. Publix Supermarkets, Inc., 68 So.3d 422 (Fla. 4th DCA 2011).

Court did not abuse discretion in awarding fees to party relating to all claims with "common core" of facts, even though there was no statutory basis for awarding fees on one of the claims.  [Added 8/31/11]

    Burdett, a shareholder in Corporation, brought suit against another shareholder, Meile, on behalf of Corporation for breach of fiduciary duty, declaratory relief, and accounting.  The court awarded Burdett, the prevailing party, attorney's fees relating to all of his claims.  On a cross-appeal, Meile conceded that Burdett was entitled to fees for the breach of fiduciary duty claim (under Fla.Stat. sec. 607.07401 (2004)) but contended that Burdett was not entitled to fees on the remaining claims.  (For example, in actions for declaratory relief costs but not fees may be awarded.  See Fla.Stat. sec. 86.081 (2004).)

    The Fourth DCA affirmed.  "We have previously held that 'where the claims involve a ‘common core’ of facts and are based on ‘related legal theories,’ a full fee may be awarded unless it can be shown that the attorneys spent a separate and distinct amount of time on counts as to which no attorney’s fees were sought.'  [Citations omitted.]  Miele disputed Burdett’s claim that he was a shareholder.  Burdett’s success on his declaratory relief action to determine if he was a shareholder conferred standing to pursue his derivative action as a shareholder of [Corporation].  We hold that the trial court did not abuse its discretion by awarding Burdett his attorney’s fees for time spent on the declaratory relief action because a determination of the issue of Burdett’s status as a shareholder raised in the declaratory relief action was dispositive of one of the elements of proof required in the derivative claim."  Daddono v. Miele, 69 So.3d 320 (Fla. 4th DCA 2011).

First DCA discusses application of "prevailing party" principle for purposes of fee and cost awards in workers' compensation cases.  [Added 8/31/11]

    In an opinion reversing an order of a Judge of Compensation Claims ("JCC") denying an award of costs in a workers' compensation case, the First DCA discussed the principles governing "prevailing party" awards of fees and costs.  The court noted that, in contrast to the typical civil case, for fee award purposes in a workers' compensation case the JCC may find that more than one party (or neither party) prevailed.  Similar to civil suits, however, in workers' comp cases both parties may be entitled to recover costs in certain circumstances.  Aguilar v. Kohl's Dept. Stores, Inc., 68 So.3d 356 (Fla. 1st DCA 2011).

Dismissal without prejudice entitles party to award of prevailing party attorney's fees.  [Added 8/27/11]

    The trial court dismissed Plaintiff's breach of contract suit as a sanction for Plaintiff's failure to comply with the court's order to appear at a status conference with counsel.  The dismissal was without prejudice.  The trial court denied Defendant's motion for prevailing party attorney's fees, "concluding that since the dismissal was without prejudice, the litigation did not necessarily end with the trial court’s order of dismissal."  Defendant appealed.

    The Fourth DCA reversed.  Defendant " was entitled to attorney’s fees as the prevailing party in the case under Alhambra [Homeowners Ass'n v. Asad, 943 So.2d 316 (Fla. 4th DCA 2006)] or Valcarcel [v. Chase Bank USA NA, 54 So.3d 989 (Fla. 4th DCA 2010)].  Like Valcarcel, the dismissal in this case was not an adjudication on the merits, since it was a dismissal without prejudice.  Under Valcarcel, however, a defendant may 'prevail' even where the case is not dismissed on the merits.  The fact that the trial court dismissed the case without prejudice was sufficient to trigger appellant’s entitlement to attorney’s fees as the prevailing party under the rental contract."  Henn v. Ultrasmith Racing, LLC, 67 So.3d 444 (Fla. 4th DCA 2011).

Rejected proposal for settlement did not support fee award under F.S. 768.79 because of condition that offeree could not perform.  [Added 8/19/11]

    Plaintiff in a negligence case made a proposal for settlement to Defendant.  The proposal offered to settle the suit for $240,000 if Defendant's insurance company tendered a check for $240,000 made payable to Plaintiff.  Defendant did not accept the offer.  After Plaintiff obtained a judgment for $394,000, she sought an award of attorney's fees as a result of the rejected offer of settlement pursuant to Fla.Stat. sec. 768.79 (2008) and Fla.R.Civ.P. 1.442.  The trial court awarded fees.  Defendant appealed.

    The First DCA reversed.  The court concluded that the proposal for settlement "was invalid and unenforceable because it was impossible for Defendant to meet the conditions of the proposal."  (Footnote omitted.)  The proposal required that Defendant's insurer, a non-party, tender a check well in excess of its policy limits of $25,000.  "Because the proposal contained a condition that [Defendant] could not possibly perform, and divested him 'of independent control of the decision to settle,' it was invalid and unenforceable.  Attorneys’ Title Ins. Fund, Inc. v. Gorka, 36 So.3d 646, 649 (Fla. 2010).  At a minimum, the proposal is ambiguous because [Defendant] could not effectively evaluate the condition that GEICO tender the settlement check.  Rule 1.442 requires a proposal to be as specific as possible 'leaving no ambiguities so that the recipient can fully evaluate its terms and conditions.'"  Gonzalez v. Claywell, __ So.3d ___ (Fla. 1st DCA, No. 1D10-5694, 8/15/2011).

Implied-in-law contract cannot support attorney's fee award in lien enforcement action.  [Added 8/16/11]

    Contractor sued Homeowners to foreclose a construction lien following installation of a water treatment system.  Contractor's complaint "alleged that the parties had reached a verbal agreement which [Homeowners] had breached, and sought to foreclose a construction lien that [Contractor] alleged had arisen under the Construction Lien Law.  In the alternative, [Contractor] alleged it was entitled to be compensated on a quantum meruit basis for labor, services and materials it had provided [Homeowners]."

    The jury found there had been no verbal agreement, but also found that Contractor had conferred a benefit on Homeowners that a reasonable person would expect to pay for.  The trial court awarded attorney's fees to Contractor under Fla.Stat. sec. 713.29 (2008) on the lien foreclosure count.  The statute provides in pertinent part:  "In any action brought to enforce a lien . . . under this part, the prevailing party is entitled to recover a reasonable fee for the services of her or his attorney . . . ."

    Homeowners appealed.  The First DCA reversed.  Contractor's successful claim was based not on a contract, but on a contract implied in law.  "A contract implied in law – the basis for [Contractor]’s recovery in the main case – is not a true contract, and a lien does not arise where nothing more than a contract implied in law is proven."  (Citations omitted.)  Because there was no valid contract, the trial court erred in awarding attorney's fees under section 713.29.  Sheppard v. M & R Plumbing, Inc., __ So.3d ___ (Fla. 1st DCA, No. 1D10-4551, 8/4/2011).

Claim for attorney's fees in alimony modification proceeding did not abate upon petitioner's death.  [Added 8/8/11]

    Former wife Reale petitioned for an upward modification of the periodic alimony award originally entered in 2004.  She also claimed attorney's fees and costs under Fla.Stat. sec. 61.16 (2009).  Reale died while the matter was pending.  Levine, personal representative of Reale's estate, moved to substitute the estate as petitioner and to amend the petition to seek modified alimony only from the filing of the petition to Reale's death.  Levine, however, "further sought to recover not only those section 61.16 attorney’s fees incurred prior to Reale’s death, but also those attorney’s fees and costs that the estate would incur going forward in the modification proceedings."  The trial court denied the motions.

    The trial court correctly refused to allow amendment, but erred by not granting the motion to substitute.  "We agree that Reale’s estate cannot pursue the alimony modification request that she made before her death, nor any future attorney’s fees and costs the estate would incur in pursuing this claim.  . . .  However, we cannot agree that the estate is unable secure the attorney’s fees and costs that Reale incurred prior to her death, where she made an express request for same in her initial modification petition."  (Citation omitted.)  The motion to substitute the estate as a party should have been allowed "for the purpose of pursuing an attorney’s fee and cost award for services rendered in the modification proceeding" before Reale's death – including appellate attorney's fees related to that claim.  Levine v. Horwitz, 67 So.3d 1145 (Fla. 3d DCA 2011).

Order imposing award of fees and costs award under F.S. 57.105 is reversed on several grounds.  [Added 7/26/11]

    Plaintiff sued a gynecologist and others for alleged negligence.  During jury selection Plaintiff's counsel mentioned the "doctoring of records."  The gynecologist moved for mistrial, arguing that fraud or spoliation was not in the complaint.  Plaintiff's counsel contended that it was an evidentiary issue that did not have to be pleaded.  The trial court granted a mistrial, stating that "[i]t's not something that's pled."

    The gynecologist subsequently sought attorney's fees and costs from Plaintiff under Fla.Stat. sec. 57.105(1) (2008) and the court's inherent authority as discussed in Moakley v. Smallwood, 826 So.2d 221 (Fla. 2002).  Plaintiff's counsel argued that he had a "good faith basis" on which to refer to "doctoring of records" and pointed to 4 specific documents.  "Despite the plaintiff’s arguments, the trial court entered an order granting the gynecologist’s motion for attorney’s fees and costs pursuant to section 57.105(1).  The court stated it found no allegations of  'falsification of records' or 'removal of records' in the complaint or the pre-trial stipulation . . ."

    The Fourth DCA reversed on 3 grounds.  First, section 57.105(1) did not apply because the defendant did not comply with section 57.105(4), which required the filing of a motion and a 21-day waiting period to give Plaintiff time to withdraw or correct the alleged sanctionable conduct.  "Here, given that the plaintiff’s counsel alleged the 'doctoring of records' during jury selection, there was no way for the plaintiff’s counsel to 'withdraw or appropriately correct' that allegation within 21 days after service of the defendants’ post-mistrial motion.  Thus, section 57.105(1), as conditioned by section 57.105(4), was not applicable to this situation.  We cannot rewrite the statute to fit this situation."

    Second, "even if section 57.105(1) applied, it was impossible for the plaintiff to allege fraud or spoliation in the complaint. The fraud which the plaintiff’s counsel was alleging was not a fraud on the plaintiff, but a fraud on the court."  (The court also noted that "an independent cause of action does not exist for first-party spoliation of evidence," citing Martino v. Wal-Mart Stores, Inc., 908 So.2d 342, 347 (Fla. 2005).)

    Third, an award of costs is not authorized under section 57.105.  Ferere v. Shure, 65 So.3d 1141 (Fla. 4th DCA 2011).

Fee award against former husband reversed where both parties had been placed in relatively equal financial circumstances.  [Added 7/19/11]

    Former Husband appealed an award of attorney's fees against him in favor of Former Wife.    Concluding that the trial court had abused its discretion, the Fifth DCA reversed.  "When considering the fee issue, a trial court must evaluate the financial need of the requesting party and the financial ability of the other party to pay when determining whether or not to award attorney's fees.  . . .  If the trial court places the parties in relatively equal financial circumstances after the dissolution, then it should not award attorney's fees.  . . .  That is to say, one party should not have to substantially deplete his or her overall equitable distribution, or cause the inequitable diminution of an alimony award in order to pay attorney's fee and costs for the other party.  . . .  Here, the trial court put the parties into basically equal financial positions.  Based on that parity and on the other factors bearing on this determination, we conclude that the court erred in ordering the Former Husband to pay the Former Wife's attorney's fees."  (Citations omitted.)  Foster v. Foster, __ So.3d ___ 36 Fla.L.Weekly D 1486(Fla. 5th DCA, No. 5D10-55, 7/8/2011), 2011 WL 2650851.

Former wife's lawyer has no standing to challenge or enforce money judgment for fee award to former wife in dissolution case.  [Added 7/13/11]

    In a dissolution case Former Wife was awarded attorney's fees and costs.  The amount included Former Wife's fees and the charges of Consulting Group.  The order "does not direct payment to her attorneys or otherwise address the issue of their entitlement to enforce the award."  The award was reduced to a money judgment in favor of Former Wife.  Not long thereafter, Former Wife and Former Husband filed a joint stipulation stating that the award had been satisfied.  The appeals in the matter were dismissed.

    Former Wife's lawyer moved to set aside the joint stipulation, arguing that the "satisfaction of judgment should be set aside as fraudulent because the Former Husband and the Former Wife had misrepresented that the judgment had been satisfied."  The trial court granted the motion to set aside the joint stipulation and "[c]iting to section 61.16(1), Florida Statutes (2008), the circuit court awarded [Former Wife's lawyer] a judgment against the Former Husband for $158,252.51, plus interest.  The circuit court also awarded [Consulting Group] a judgment against the Former Husband for $13,596.34, plus interest."  Former Husband appealed.

    The Second DCA reversed.  Although section 61.16(1) authorizes the trial court to make a fee award directly to a party or the party's lawyer, in this case the court made the award only to Former Wife.  The Second DCA noted that lawyers ordinarily do not have standing to seek or enforce a fee award in their own names.  In this case, the award was not in the name of Former Wife's lawyer or Consulting Group and did not direct payment to them.  The court summarized:  "The circuit court erred in relying on section 61.16(1) in support of the order under review.  Section 61.16(1) does not give an attorney an independent right to seek a fee award for services rendered in a case under chapter 61.  Furthermore, absent an order directing payment of a fee award to the attorney, the attorney does not have standing to enforce the award."  Jankowski v. Dey, 64 So.3d 183 (Fla. 2d DCA 2011).

When plaintiff seeks both monetary damages and injunctive relief as part of same claim, offer of judgment statute does not apply.  [Added 7/5/11]

    Plaintiff sued Defendants for alleged violations of the Florida Motor Vehicle Dealer Act (Fla.Stat. sec. 320.60-70 (2005)), seeking both monetary damages and injunctive relief.  Each defendant served Plaintiff with a separate offer of judgment, "tendering a monetary amount as full settlement of all plaintiff's claims against that particular defendant."  Plaintiff rejected each offer.  Ultimately summary judgment was rendered for Defendants, who then moved for attorney's fees under Fla.Stat. sec. 768.79 (2005) based on the rejected offers of judgment.  The trial court denied the motions.

    Defendants appealed.  The Fifth DCA affirmed, concluding that "[w]here, as here, a plaintiff seeks both monetary damages and injunctive relief as part of the same claim(s), section 768.79, Florida Statutes, does not apply."

    Section 768.79 "applies to 'any civil action for damages' and requires a court to compare the monetary amount offered (or demanded) against the monetary judgment ultimately obtained in order to determine whether a party has sufficiently 'beaten' an offer (or demand) so as to be entitled to an award of attorney's fees."  (Emphasis by court.)  There is no corresponding provision applying to claims for non-monetary relief.  The court concluded:  "While we are not willing to opine that an offer (or demand) for judgment can never be utilized when a party has included separate claims for monetary and nonmonetary relief in the same pleading and the offer (or demand) is directed only to the monetary claim, we do agree with the Palm Beach Polo Holdings [Inc. v. Equestrian Club Estates Property Owners Ass'n, 22 So.3d 140 (Fla. 4th DCA 2009)] decision to the extent that it holds that section 768.79 is inapplicable where a party's general offer of settlement is directed to a claim in which both damages and non-monetary relief is sought."  Winter Park Imports, Inc. v. JM Family Enterprises, 66 So.3d 336 (Fla. 5th DCA 2011).

Income deduction order may be entered to collect only those fees incurred as a result of securing or collecting child support or alimony.  [Added 7/5/11]

    Father, the former husband, secured an income deduction order requiring 60% of Mother's income be deducted to satisfy ongoing child support, arrearages, attorney's fees, and costs.  Former Wife appealed.  The Third DCA noted that Fla.Stat. sec. 61.1301(1)(a) authorizes entry of an income deduction order "to collect attorney’s fees incurred as a result of securing and collecting child support and/or alimony.  This does not mean that any time an individual brings an action to secure and collect support or alimony, any and all attorney’s fees can be automatically folded into the income deduction order."  (Emphasis by court.)  The court rejected Father's argument that the income deduction order should be upheld "because 'some portion' of the fees were related to the securing or collection of child support."

    The court remanded and directed the trial court "to determine what attorney's fees, if any, are related to the collection and securing of child support."  Diaz v. Diaz, 66 So.3d 983 (Fla. 3d DCA 2011).

Dispute over amount of loss does not constitute denial of coverage that exposes FIGA to fee award under F.S. 631.70.  [Added 6/15/11]  --  Florida Ins. Guaranty Ass'n v. Smothers, 65 So.3d 541 (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).

"Notice of Intent" to seek attorney's fees is not a "pleading" and cannot support fee award, per Second DCA.  [Added 6/11/11]  --  BMR Funding, LLC v. DDR Corp., 67 So.3d 1137 (Fla. 2d DCA 2011) (on rehearing).

Court erred in granting fees under F.S. 57.105 due to non-compliance with 21-day "safe harbor" provision.  [Added 6/5/11]  --  City of North Miami Beach v. Berrio, 64 So.3d 713 (Fla. 3d DCA 2011).

"Greater-of-contract-or-court-awarded" clause in lawyer-client fee agreement authorizes above-contract fee award only in contingent-fee cases.  [Added 5/31/11]  --  Compass Construction, Inc. v. First Baptist Church of Cape Coral, Florida, Inc., 61 So.3d 1273 (Fla. 2d DCA 2011).

UM carrier is prevailing party and is entitled to fees under offer of judgment statute where insured's recovery was below liability policy limits.  [Added 5/31/11]  --  Allstate Ins. Co. v. Staszower, 61 So.3d 1245 (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, __ So.3d ___ (Fla. 1st DCA, No. 1D10-1886, 5/18/2011), 2011 WL 1879200.

Court erred in awarding fees under F.S. 627.428 where insurer voluntarily dismissed action without prejudice.  [Added 5/25/11]  --  Guarantee Ins. Co. v. Worker's Temporary Staffing, Inc., 61 So.3d 1233 (Fla. 5th 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).

Prevailing party attorney's fees awarded after order involuntarily dismissing action with prejudice even though motion to dismiss did not seek fees.  [Added 5/23/11]  --  Nudel v. Flagstar Bank, FSB, 60 So.3d 1163 (Fla. 4th DCA 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).

Second DCA recedes from practice of awarding conditional judgments of attorney's fees in insurance cases.  [Added 5/11/11]  --  Government Employees Ins. Co. v. King, 68 So.3d 267 (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.

Supreme Court suspends lawyer for 3 years for rule violations in representation of putative class.  [Added 5/4/11]  --  Florida Bar v. Adorno, 60 So.3d 1016 (Fla. 2011).

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).

Florida's Lemon Law does not authorize award of fees incurred during arbitration of refund option.  [Added 4/22/11]  --  General Motors LLC v. Bowie, 58 So.3d 934 (Fla. 4th DCA 2011).

    NOTE:  Accord, Chrysler Group, LLC v. Musacchia, 64 So.3d 141 (Fla. 4th DCA 2011); Forest River, Inc. v. Gelinas, 65 So.3d 537 (Fla. 4th DCA 2011); Mercedes-Benz USA, LLC, v. Popham, 65 So.3d 47 (Fla. 4th DCA 3300, 5/18/2011) ("'damages' under section 681.112 do not include attorney's fees incurred in pursuing the refund option through arbitration").

Florida 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).

Judgment in custody case is reversed because it failed to address party's request for fees or to reverse jurisdiction to do so.  [Added 4/8/11]  --  Flores v. Flores, __ So.3d ___, 36 Fla.L.Weekly D724 (Fla. 4th DCA, No. 4D09-3743, 4/6/2011), 2011 WL 1261157.

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).

Proposals for settlement that did not include proposed release or summary of its terms did not comply with Fla.R.Civ.P. 1.442 and were unenforceable.  [Added 4/6/11]  --  Mix v. Adventist Health System/Sunbelt, Inc., 67 So.3d 289 (Fla. 5th DCA 2011).

Court erred in applying equitable subordination doctrine to consent judgment obtained in law firm's suit for fees against former client.  [Added 4/4/11]  --  Carlton Fields, P.A. v. LoCascio, 59 So.3d 246 (Fla. 3d DCA 2011).

JCC erred in determining reasonable hourly rate for fee award based on argument rather than evidence.  [Added 4/1/11]  --  McDermott v. United Parcel Service/Liberty Mutual, 57 So.3d 933 (Fla. 1st 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).

Statement in Husband's proposed final judgment bars him from arguing that court erred in awarding attorney's fees to Wife.  [Added 3/30/11]  --  David v. David, 58 So.3d 336 (Fla. 5th DCA 2011).

Florida Supreme Court decides that party who settles pursuant to offer of judgment is “prevailing party” for purposes of fee award under  Magnuson-Moss Warranty Act.  [Added 3/27/11]  --  Mady v. DaimlerChrysler Corp., 59 So.3d 1129 (Fla. 2001).

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).

Fee award reversed because proposal for settlement conditioned on opposing parties' joint acceptance.  [Added 3/24/11]  --  Schantz v. Sekine, 60 So.3d 444 (Fla. 1st DCA 2011).

Party that succeeded in having lis pendens discharged is entitled to attorney's fees even without posting bond.  [Added 3/23/11]  --  Abner v. Johnson, 56 So.3d 137 (Fla. 4th DCA 2011).

F.S. 57.105(1) fee award measured from time initial complaint was filed, rather than filing of amended complaint pending when fee motion was served.  [Added 3/10/11]  --  Wood v. Haack, 54 So.3d 1082 (Fla. 4th DCA 2011).

Court erred in not awarding 57.105 fees against bank in dismissed mortgage foreclosure case; lawyers' professionalism criticized.  [Added 2/28/11]  --  South Bay Lakes Homeowners Association, Inc. v. Wells Fargo Bank, N.A., 53 So.3d 1239 (Fla. 2d 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).

Workers' comp claimant is entitled to fee award for successfully resisting former employer's assertion of "fraud defense".  [Added 2/15/11]  --  Carrillo v. Case Engineering, Inc., 53 So.3d 1214 (Fla. 1st DCA 2011).

Florida 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).

Fourth DCA construes arbitration clause in attorney-client contingent fee agreement, relying on some familiar principles.  [Added 2/11/11]  --  Feldman v. Davis, 53 So.3d 1132 (Fla. 4th DCA 2011).

Fee award reversed and all fees denied because party seeking fees twice failed to meet burden of showing how much time was spent on successful claim.  [Added 2/3/11]  --  Dr. Gail Van Diepen, P.A. v. Brown, 55 So.3d 612 (Fla. 5th DCA 2011).

Calling its arguments "frivolous," Fourth DCA rejects Dept. of Agriculture's claim for prevailing party attorney's fees.  [Added 1/31/11]  --  Florida Dept. of Agriculture and Consumer Services v. Cox, 54 So.3d 1026 (Fla. 4th DCA 2011).

Fourth DCA calls for statutory and rule changes to address increasing claims of "ambiguity" in proposals for settlement.  [Added 1/21/11]  --  Land & Sea Petroleum, Inc. v. Business Specialists, Inc., 53 So.3d 348 (Fla. 4th DCA 2011).

Section 57.105 fees should be awarded for assertion of unsupportable claim, regardless of whether party may prevail if case is refiled.  [Added 1/3/11]  --  Country Place Community Ass'n, Inc. v. J.P. Morgan Mortgage Acquisition Corp., 51 So.3d 1176 (Fla. 2d DCA 2010).

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).

30-day deadline of Fla.R.Civ.P. 1.525 for seeking fee awards applies when party is dropped from suit per Fla.R.Civ.P. 1.250(b).  [Added 1/3/11]  --  Siboni v. Allen, 52 So.3d 779 (Fla. 5th 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).

Per Fourth DCA, party cannot rely on corporate veil to avoid being hit with appellate attorney's fee sanction under F.S. 57.105.  [Added 1/3/11]  --  Sullivan v. Sullivan, 54 So.3d 520 (Fla. 4th DCA 2010).

First DCA awards fees under F.S. 57.105 as sanction against parties and their counsel for filing appeal where they lacked standing.  [Added 12/17/10]  --  Martin County Conservation Alliance v. Martin County, Dept. of Community Affairs, __ So.3d ___, 35 Fla.L.Weekly D2765 (Fla. 1st DCA, No. 1D09-4956, 12/14/2010), 2010 WL 5072588, 2010 WL 5072588.

Second DCA reminds lawyers that attorney's fee awards ordinarily may not include payment for lawyers' travel time.  [Added 12/17/10]  --  Mandel v. Decorator's Mart, Inc. of Deerfield Beach, 965 So.2d 311, 315 (Fla. 4th DCA 2007)."  Stanton v. Stanton, 50 So.3d 688 (Fla. 2d DCA 2010).

Court has "no discretion" to refuse to enforce prevailing party fee provision in breach of contract action.  [Added 12/15/10]  --  Point East Four Condominium Corp., Inc. v. Zevuloni & Associates, Inc., 50 So.3d 687 (Fla. 4th DCA 2010).

JCC erred in awarding fees based on present value of future benefits to be received by claimant.  [Added 12/1/10]  --  Interstate Brands Corp./Broadspire v. Blanco, 50 So.3d 665 (Fla. 1st DCA 2010).

Dismissal without prejudice, though not on merits, can support award of prevailing party attorney's fees.  [Added 11/29/10]  --  Valcarcel v. Chase Bank USA NA, 54 So.3d 989 (Fla. 4th DCA 2010).

"Typical" language in a general release defining party as including "past, present and future affiliates" did not render proposal for settlement unenforceable.  [Added 11/21/10]  --  Jessla Construction Corp. v. Miami-Dade County School Board, 48 So.3d 127 (Fla. 3d DCA 2010).

Motion for attorney's fees under F.S. 57.105 does not waive defense of lack of personal jurisdiction.  [Added 11/11/10]  --  Two Worlds United v. Zylstra, 46 So.3d 1175 (Fla. 2d DCA 2010).

Denial of attorney's fees following rejected proposals for settlement is affirmed where terms not stated with sufficient particularity.  [Added 11/8/10]  --  Darrow v. Heitman, 46 So.3d 184 (Fla. 2d DCA 2010).

JCC order approving allocation of settlement proceeds did not divest JCC of jurisdiction over attorney's fees.  [Added 11/8/10]  --  Hack v. Chuck Norris Drywall / Amerisure Ins. Co., 46 So.3d 1137 (Fla. 1st DCA 2010).

Fourth DCA urges Supreme Court to allow trial courts to sanction attorneys for reckless misconduct, not just bad faith.  [Added 11/5/10]  --  Rivero v. Meister, 46 So.3d 1161 (Fla. 4th DCA 2010).

Second DCA reviews the law on attorney's fees under F.S. 627.428 when insurer pays policy proceeds after insured files suit.  [Added 11/2/10]  --  Beverly v. State Farm Florida Ins. Co., 50 So.3d 628 (Fla. 2d DCA 2010).

Insureds entitled to "modest" fee award after defeating insurer's petition seeking itemized appraisal.  [Added 11/2/2010]  --  Pineda v. State Farm Florida Ins. Co., 47 So.3d 890 (Fla. 3d 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).

Discharge in bankruptcy that prevents state court claim from going forward cannot support "prevailing party" attorney's fees award.  [Added 10/26/10]  --  United States v. Morrison, 46 So.3d 1064 (Fla. 1st DCA 2010).

Trial court erred in not awarding fees even though plaintiff prevailed on only a fraction of unpaid commission claim.  [Added 10/11/10]  --  Langford v. Paravant, Inc., 48 So.3d 75 (Fla. 5th DCA 2010).

Court-appointed counsel for no-show father in termination of parental rights action is not entitled to fees, per First DCA.  [Added 10/11/10]  --  Justice Administrative Comm'n v. Risen, 44 So.3d 1264 (Fla. 1st 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).

Court may award F.S. 57.105 fees on its own initiative as sanction without complying with 21-day notice provision.  [Added 9/27/10]  --  Koch v. Koch, 47 So.3d 320 (Fla. 2d DCA 2010).

Third DCA reduces award of attorney's fees to insured who prematurely filed suit in connection with appraisal.  [Added 9/24/10]  --  Travelers of Florida v. Stormont, 43 So.3d 941 (Fla. 3d DCA 2010).

Judge in divorce case erred by ordering one spouse to pay attorney's fees of other, where parties were equally position financially.  [Added 9/22/10]  --  Kouzine v. Kouzine, 44 So.3d 213 (Fla. 5th DCA 2010).

Court abused its discretion in not awarding attorney's fees to wife in divorce case, where it would result in inequitable diminution of her assets.  [Added 9/17/10]  --  Conlan v. Conlan, 43 So.3d 931 (Fla. 4th 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).

Florida 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).

F.S. 57.105 award of fees reversed in defamation case, where defendant's belief in her accusation was "completely unreasonable."  [Added 9/7/10]  --  Asinmaz v. Semrau, 42 So.3d 955 (Fla. 4th DCA 2010).

Proposal for settlement under offer of judgment statute is declared unenforceable due to ambiguity.  [Added 8/26/10]  --  Nationwide Mutual Fire Ins. Co. v. Pollinger, 42 So.3d 890 (Fla. 4th DCA 2010).

Motions for attorney's fees in guardianship matters are subject to 30-day time limit in Fla.R.Civ.P. 1.525.  [Added 8/19/10]  --  Price v. Austin, 43 So.3d 789 (Fla. 1st DCA 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.

Court erred in denying attorney's fee award because claimant prevailed on statute of limitations defense rather than merits.  [Added 7/28/10]  --  Ultimate Makeover Salon & Spa, Inc. v. DiFrancesco, 41 So.3d 335 (Fla. 4th DCA 2010).

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).

Court erred in finding defendant's proposal for settlement ambiguous and thus unenforceable.  [Added 7/14/10]  --  Donovan Marine, Inc. v. Delmonico, 40 So.3d 69 (Fla. 4th DCA 2010).

Revisions to F.S. 57.105, concerning attorney's fees awards as sanctions, effective July 1, 2010.  [Added 7/6/10]  --  In re: Amendments to the Florida Rules of Appellate Procedure, 41 So.3d 885 (Fla. 2010).

Attorney's fee award may include contingency risk multiplier for paralegal fees included in award.  [Added 6/30/10]  --  State Farm Mutual Auto. Ins. Co. v. Edge Family Chiropractic, P.A., 41 So.3d 293 (Fla. 1st DCA 2010).

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 v. Gould & Lamb, LLC, 36 So.3d 842 (Fla. 2d DCA 2010).

Error to award attorney's fees against insurance agent under F.S. 627.428 because agent was not an "insurer."  [Added 6/12/10]  --  Snow v. Jim Rathman Chevrolet, Inc., 39 So.3d 368 (Fla. 5th DCA 2010).

A party may be the "prevailing party" for attorney's fee award purposes even before underlying litigation is concluded.  [Added 6/3/10]  --  Black Diamond Properties, Inc. v. Haines, 36 So.3d 819 (Fla. 5th DCA 2010).

First voluntary dismissal without prejudice of suit does not support fee award under offer of judgment statute.  [Added 5/27/10]  --  Shepheard v. Deutsche Bank Trust Co. Americas, 38 So.3d 825 (Fla. 5th 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).

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]  --  Baker v. Baker, 35 So.3d 76 (Fla. 2d DCA 2010).

Award of appellate attorney's fees must be supported by expert testimony, per Second DCA.  [Added 5/12/10]  --  Sourcetrack, LLC v. Ariba, Inc., 34 So.3d 766 (Fla. 2d DCA 2010).

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]  --  Hill v. State Farm Florida Ins. Co., 35 So.3d 956 (Fla. 2d DCA 2010).

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]  --  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]  --  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]  --  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]  --   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]  --  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]  --  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 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]  --  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]  --  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]  --  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]  --  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]  --  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]  --  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]  --  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]  --  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]  --  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]  --  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]  --  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 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]  --  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]  --  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.