Lawyer not licensed in Florida may not collect fee in quantum meruit for legal services provided in Florida in probate and trust matter.  [Added 2/23/10]

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

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

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

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

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

    The court also rejected Lawyer's claim that his conduct was permissible under the 2005 amendments to Florida Rule of Professional Conduct 4-5.5, concerning multijurisdictional practice.  Morrison v. West, __ So.3d ___ (Fla. 4th DCA, No. 4D08-1693, 2/17/2010), 2010 WL 532792.

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

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

    The appellate court granted the petition and quashed the order.  "The trial court does not have inherent authority to assess costs against the State Attorney’s Office in criminal cases.  State v. Shelton, 584 So.2d 1118 (Fla. 5th DCA 1991); State v. Hardwood, 488 So.2d 901 (Fla. 5th DCA 1986)."  State v. Nelson, __ So.3d ___ (Fla. 3d DCA, No. 3D09-3352, 2/10/2010), 2010 WL 445921.

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

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

    The Third DCA reversed on appeal.  Quoting from Amerus Life ins. Co. v. Lait, 2 So.3d 203, 207 (Fla. 2009), the court pointed out that the Florida Supreme Court has held that Rule 1.525 "'does not apply when the trial court has determined entitlement to attorneys' fees and costs in its final judgment, but reserves jurisdiction only to determine the amount in attorneys' fees and costs that is owed.'"  The court further stated that, in the instant case, "the prevailing party’s entitlement to attorneys’ fees had already been determined, and the trial court merely reserved jurisdiction to determine the amounts.  Although the eleven-month delay in this case exceeds the eight-month delay in Amerus, we do not believe that distinction makes a difference in the analysis or outcome."  Ramle International Corp. v. Greens Condominium Ass'n, Inc., __ So.3d ___ (Fla. 3d DCA, No. 3D08-2834, 2/10/2010), 2010 WL 445719.

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

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

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

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

    The court further stated:  "We also direct the circuit court’s attention to the recent opinions of Justice Administrative Commission v. Harp, 2009 WL 5150300 (Fla. 5th DCA Dec. 31, 2009) (holding that circuit court lacked statutory authority to appoint counsel for mother who voluntarily executed a written surrender of parental rights; JAC not required to pay counsel for mother’s legal representation at the termination of parental rights proceeding under these facts), and Justice Administrative Commission v. Berry, 5 So. 3d 696 (Fla. 3d DCA 2009) (holding circuit court departed from essential requirements of law in requiring JAC to pay attorney’s fees for counsel appointed to represent fathers in termination proceedings where fathers did not appear at the proceedings, thereby consenting to the termination of their parental rights, and their indigency could not be determined)."  Justice Administrative Comm'n v. Gayden, __ So.3d ___ (Fla. 5th DCA, No. 5D09-3053, 2/12/2010), 2010 WL 475204.

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

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

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

    Clients appealed.  The First DCA reversed.

    Even though no answer was filed in the underlying case, Lawyer contended that "a 40 percent contingency fee would be authorized under rule 4-1.5(f)(4)(B), Rules Regulating the Florida Bar, which governs contingency fee contracts, and that the subject contingency fee contract should be interpreted in accordance with the rule."  The court noted that, under this rule, "a contingent fee agreement may provide for a contingent fee of 40 percent of any recovery if no answer is filed and the time period for filing an answer has expired.  If the contract here had adopted the language of the rule, we would agree with [Lawyer]’s argument.  The contract before us, however, differs from the rule.  The representation agreement provides that [Lawyer] will be paid '33 1/3% of any recovery . . . through the time of filing of an answer. . . .'  The agreement does not provide for the situation in which no answer is filed, but the time period for filing an answer has expired.  Accordingly, under the unambiguous language of the contract, because no answer was filed, [Lawyer]’s fee was limited to 33 1/3 percent of the recovery."  Rose v. Steigleman, __ So.3d ___ (Fla. 1st DCA, No. 1D09-1068, 1/15/2010), 2010 WL 135324.

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

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

    "We conclude it was improper for the trial court to tax the following overhead costs to the Seller: postage, online research, facsimile charges, courier services, photocopies,  scanning documents and trial supplies.  Although the Seller contested costs billed to the clients for parking, overtime paralegal work, after-hours heating and air conditioning, mileage, meals and long distance phone calls, it appears these charges were deducted from the amount requested in the attorney's fee affidavit and were not part of the final award.  If not, on remand, these costs should be deducted."  The Landmark Winter Park, LLC v. Colman, __ So.3d ___ (Fla. 5th DCA, No. 5D08-3893, 12/31/2009), 2009 WL 5152157.

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

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

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

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

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

    The court, however, did express sympathy with the appellants' position.  "Finally, we note that both Appellants and the County make policy arguments as to why fees and costs should or should not be recoverable in this context.  Although we agree with the trial judge that Appellants arguments appear more persuasive, they are not proper considerations for an appellate court called upon to apply an unambiguous statute.  Rather, these arguments should be advanced to the Legislature."  Calhoun, Dreggors & Associates v. Volusia County, __ So.3d ___ (Fla. 5th DCA, No. 5D09-547, 12/31/2009), 2009 WL 5150087.

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

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

    The Fifth DCA reversed.  F.S. sec. 39.807(1), which authorizes appointment of counsel in termination proceedings, contains an exception that provides:  "This subsection does not apply to any parent who has voluntarily executed a written surrender of the child and consent to the entry of a court order therefor."  Accordingly, the appeals court concluded:  "By its plain language, section 39.807(1)(d) does not authorize the court to appoint counsel to a parent who has executed a voluntary written surrender of his or her parental rights.  . . .  [U]nder the circumstances presented here, the circuit court had no authority to appoint counsel for the mother, and the JAC is not required to pay any attorney's fees for the termination proceeding."  (Footnote omitted.)  Justice Administrative Comm'n v. Harp, __ So.3d ___ (Fla. 5th DCA, No. 5D09-3058, 12/31/2009), 2009 WL 5150300.

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]

    Plaintiff sued Defendant alleging breach of contract.  The contract provided that Defendant would obtain insurance coverage for the benefit of Plaintiff and have Plaintiff listed on the policy as a named insured.  That was not done.  When a woman allegedly injured by a subcontractor's negligence sued Plaintiff and others, Plaintiff tendered defense of the suit to the insurance company.  The insurer denied coverage.  Plaintiff then instituted a declaratory judgment action seeking to determined that it was covered under the policy.  The insurer prevailed in the declaratory judgment action.

    Plaintiff subsequently settled the negligence suit.  Plaintiff then sued Defendant for breach of contract and prevailed.  As part of Plaintiff's damages, the jury included the amount of attorney's fees expended by Plaintiff in pursuing the unsuccessful declaratory judgment action.  Defendant appealed.

    The First DCA affirmed, noting that in a breach of contract action an injured party "is entitled to recover all damages that are causally related to the breach so long as the damages were reasonably forseeable at the time the parties entered into the contract."  The court continued:  "We agree with [Plaintiff] that all of the damages awarded by the jury were causally related to and a reasonably foreseeable consequence of the breach of contract by [Defendant].  With respect to the attorney’s fees and costs incurred in the declaratory judgment action, the record establishes that but for the breach by [Defendant], [Plaintiff] would not have been required to pursue the declaratory judgment action in an effort to obtain the coverage that should have been provided under the contract.  Moreover, because the declaratory judgment action filed by [Plaintiff] is a common response to an insurance carrier’s refusal to provide coverage . . . the action (and the resulting attorney’s fees and costs) could have been reasonably expected to flow from the breach.  The fact that the declaratory judgment action was unsuccessful does not preclude recovery of the related fees and costs.  . . .  Accordingly, the trial court did not err in allowing the jury to award [Plaintiff] the attorney’s fees and costs that it incurred with respect to the declaratory judgment action."

    The appeals court also ruled that prejudgment interest should have been awarded on the entire amount of damages awarded by the jury, including the declaratory judgment attorney's fees.  Capitol Environmental Services, Inc. v. Earth Tech, Inc., __ So.3d ___, 34 Fla.L.Weekly D2467 (Fla. 1st DCA, No. 1D08-3016, 11/30/2009), 2009 WL 4110848.

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]

    Appellants appealed the denial of their motion for attorney's fees against two appellees, Van Diepen and CSI, pursuant to the civil theft statute (F.S. 772.11 (2007)) and the offer of judgment statute (F.S. 768.79 (2007)).  Appellees had successfully defended against the motion in the trial court on the ground that they were not named parties in the litigation.  The Third DCA reversed.

    The appellate court concluded that appellees involvement in the litigation did rise to the level of "party" status for purposes of an attorney's fee award.  "This Court has previously stated that a 'party' 'is defined under Florida law as any person who participates in litigation regardless of whether or not [the party is] actually named in the pleadings.'  Visoly v. Security Pac. Credit Corp., 768 So.2d 482, 489 (Fla. 3d DCA 2000)."  In this case, appellees had an agreement with the named parties that gave appellees a great degree of involvement in and control over the litigation.  "Van Diepen and CSI clearly have risen to level of a party.  The agreement stated that Van Diepen and CSI had to approve counsel for the plaintiffs.  The litigation costs were paid for pursuant to the agreement.  They had veto power over whether the litigation was filed, who would file it and how it would be pursue [sic].  Van Diepen even paid $13,000 worth of expenses for one of plaintiff’s main witnesses.  Further, the agreement allowed for Van Diepen and CSI to have the final say over any settlement agreements proposed to the plaintiffs.  In return for funding the suit, Van Diepen was to receive 18.33% of any sum awarded to the plaintiffs."

    The Third DCA concluded that Appellants were entitled to attorney's fees and costs from appellees under their claim for civil theft.  The offer of judgment statute, however, did not apply because the offer was never served on Van Diepen or CSI.  Abu-Ghazaleh v. Chaul, __ So.3d ___, 34 Fla.L.Weekly D2496 (Fla. 3d DCA, Nos. 3D07-3128, 3D07-3130, 12/2/2009), 2009 WL 4283085.

    NOTE:  For purposes of fee award under arbitration statute, F.S. 44.103(6), individual who was voluntarily dismissed pursuant to stipulation was not "party" and thus trial court correctly refused to award attorney's fees against him.  Dunkin' Donuts Franchised Restaurants, LLC v. 330545 Donuts, Inc., __ So.3d ___ (Fla. 4th DCA, No. 4D08-4930, 1/27/2010), 2010 WL 289192.

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]

    Appellants appealed the denial of their motion for attorney's fees against two appellees, Van Diepen and CSI, pursuant to the civil theft statute (F.S. 772.11 (2007)) and the offer of judgment statute (F.S. 768.79 (2007)).  Appellees had successfully defended against the motion in the trial court on the ground that they were not named parties in the litigation.  The Third DCA reversed.

    The appellate court concluded that appellees involvement in the litigation did rise to the level of "party" status for purposes of an attorney's fee award.  "This Court has previously stated that a 'party' 'is defined under Florida law as any person who participates in litigation regardless of whether or not [the party is] actually named in the pleadings.'  Visoly v. Security Pac. Credit Corp., 768 So.2d 482, 489 (Fla. 3d DCA 2000)."  In this case, appellees had an agreement with the named parties that gave appellees a great degree of involvement in and control over the litigation.  "Van Diepen and CSI clearly have risen to level of a party.  The agreement stated that Van Diepen and CSI had to approve counsel for the plaintiffs.  The litigation costs were paid for pursuant to the agreement.  They had veto power over whether the litigation was filed, who would file it and how it would be pursue [sic]  Van Diepen even paid $13,000 worth of expenses for one of plaintiff’s main witnesses.  Further, the agreement allowed for Van Diepen and CSI to have the final say over any settlement agreements proposed to the plaintiffs.  In return for funding the suit, Van Diepen was to receive 18.33% of any sum awarded to the plaintiffs."

    The Third DCA concluded that Appellants were entitled to attorney's fees and costs from appellees under their claim for civil theft.  The offer of judgment statute, however, did not apply because the offer was never served on Van Diepen or CSI.  Abu-Ghazaleh v. Chaul, __ So.3d ___ (Fla. 3d DCA, Nos. 3D07-3128, 3D07-3130, 12/2/2009).

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]

    Plaintiff filed an action against Defendant seeking both injunctive relief and money damages.  Ultimately a final judgment was entered in favor of Defendant.  Defendant then moved for attorney's fees under F.S. sec. 768.79 and Fla.R.Civ.P. 1.442, based on 3 proposals for settlement that it had made during the litigation.  One of the proposals offered payment of $1001.00 "as a complete and final resolution and settlement of all claims asserted" by Plaintiff against Defendant in the case.  The other 2 proposals used similar language.  The trial court found that the suit as "an action for damages" as required by F.S. sec. 768.79, and entered an award of attorney's fees against Plaintiff.  Plaintiff appealed.

    The Fourth DCA reversed.  The appeals court noted that it had not yet addressed the operative issue presented, which was "whether a general offer applying to a n entire case that includes both claims for damages and other claims can be binding upon the unsuccessful party."  The court concluded that it could not.

    The offer of judgment statute (F.S. sec. 768.79) applies only to civil actions "for damages."  As a statute in derogation of the common law rule that each party pays its own attorney's fees, the statute must be strictly construed.  "[S]trict construction of the statute and rule should not allow application of a general offer of settlement, sought to be applied to claims seeking non-monetary relief as well as actions for damages.  In this case, each offer of settlement filed was general, such that it applied to all claims contained within the complaint which, of course, included both a claim for damages and non-economic claims.  Strict construction of the statute leads to the conclusion that when an action seeks non-monetary relief, such as a pure declaration of rights or injunctive relief, then the fact that it also seeks damages does not bring it within the offer of judgment statute."  (Emphasis by court.)

    The appellate court concluded:  "Because the proposals for settlement addressed a complaint that included non-damages claims, they do not comply with the statute, and we find them invalid and reverse the trial court’s order awarding fees."  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]

    Lender foreclosed on a mortgage.  Borrowers defaulted.  The mortgage note provided that "reasonable attorneys' fees shall be construed to mean 10% of the principal sum named in this note."  The trial court, however, refused Lender's claim for a 10% attorneys' fee, terming it "unconscionable."  Lender moved for rehearing, and the trial court again declined to enforce the attorneys' fee provision.  "[T]he trial court again observed that [Lender] had offered no evidence of the amount of attorney’s fees incurred, and concluded 'that equity cannot tolerate a result of a requirement that a Defendant in a mortgage foreclosure be required to pay more for attorney’s fees than the mortgagee actually paid their attorney.'"  Lender appealed.

    The First DCA affirmed.  The appeals court, however, avoided reaching the question of whether the fee sought was unreasonable or unjust.  Rather, the court examined the language of the relevant statute (F.S. 687.06 (2008)) and focused on whether Lender had proved entitlement to a fee.

    Lender argued that the statute foreclosed a trial court from reviewing the claimed fee for reasonableness.  The statute provided in pertinent part that, "it shall not be necessary for the court to adjudge an attorney's fee, provided in any note or other instrument of writing, to be reasonable and just, when such fee does not exceed 10 percent of the principal sum named in said note, or other instrument in writing."  The appellate court disagreed.  The statute "does not . . . prohibit a trial court from inquiring as to evidence showing an entitlement to the fee sought" and "does not . . . remove the need to determine a fee in the first instance."  Although the statute "limits a trial court’s discretion to review the reasonableness of certain attorney’s fees sought by the mortgagee, it does not prevent the court from inquiring after evidence that the fees allowed by the contract do not exceed those actually incurred by the beneficiary of the contractual provision or, at the least, do not exceed that amount in such magnitude as to render an automatic award inequitable."  In the court below, Lender had not presented any evidence regarding its obligation to pay attorneys' fees and so the First DCA "[did] not reach the question whether the fee sought was reasonable or excessive, because no amount at all was demonstrated."

    The appeals court concluded:  "To summarize, we do not approve denial of the fee because the fee was unreasonable or unjust.  Instead, we affirm because appellant declined to demonstrate at all the fee due from it to its lawyers."  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]

    In a county court personal injury protection ("PIP") action, the trial court awarded a contingency fee multiplier in a claim for attorney's fees.  The Circuit Court "on direct appeal reviewed and reversed the trial judge’s order awarding a multiplier because Petitioner did not testify that she had difficulty securing counsel to represent her in the cause without a multiplier under Sun Bank of Ocala v. Ford, 564 So.2d 1078 (Fla. 1990).  To support her ruling, the circuit judge relied upon Progressive Express Insurance Co. v. Schultz, 948 So.2d 1027 (Fla. 5th DCA 2007), as precedent."

The Insurer sought certiorari review in the First DCA.  The First DCA quashed the Circuit Court's order, concluding that the Circuit Court had departed from the essential requirements of law.  Testimony of the Petitioner was not required where she had produced relevant expert testimony.  The First DCA "concluded in McCarthy Brothers Co. v. Tilbury Construction Inc., 849 So.2d 7, 10 (Fla. 1st DCA 2003), that expert testimony that a party would have difficulty securing counsel without the opportunity for a multiplier supports a multiplier’s imposition.  Here, Petitioner presented such testimony, and the Circuit Court departed from the essential requirements of law by failing to apply a principle of law previously enunciated by this Court rather than that of our sister Fifth District Court of Appeal."  The trial court should have relied on McCarthy Brothers rather than on the Fifth DCA case.  Massie v. Progressive Express Ins. Co., __ So.3d ___, 34 Fla.L.Weekly D2364 (Fla. 1st DCA, No. 1D09-1558, 11/17/2009), 2009 WL 3817929.

Judge of Compensation Claims erred in dismissing substituted counsel's charging lien before claimant had settled case.  [Added 10/16/09]

    Lawyer represented Claimant in a workers' compensation case.  In October 2003 Lawyer filed a petition for benefits that includes a request for attorney's fees.  In November 2004 Lawyer left the case, filing a substitution of counsel and preserving his attorney's fee lien.  In October 2008, the employer/carrier ("E/C") requested that an attorney's fee lien hearing be scheduled.  Lawyer appeared and "objected to the hearing going forward, asserting that determination of his lien was premature because the claimant had not settled his case with the E/C, and the JCC [Judge of Compensation Claims] was without authority to require [Lawyer] to file a verified petition for attorney's fees."  Disagreeing, the JCC dismissed Lawyer's lien.  Lawyer appealed.

    The First DCA reversed.  "A lien is an equitable right that generally lasts until the property, here, the settlement of the claimant’s case, is created, at which time the attorney can proceed to enforce the lien.  See [Zaldivar v. Okeelanta Corp., 877 So.2d 927, 931 (Fla. 1st DCA 2004)].  . . .  Once a case settles, and the prior attorney is notified of the settlement, the attorney’s failure to institute an action in a timely fashion can result in dismissal of the lien.  See id.  Because this case had not settled, the JCC erred in dismissing the lien."  The court noted that "[t]he amount of a claimant's attorney's fee can be, and/or is, depending on the date the claimant is injured, calculated based on 'benefits secured.'"  In some cases the "benefits secured" are readily ascertainable, while in other cases they are not.  "Because it may take some time to fully ascertain the benefits flowing from the claimant's intervention, it must necessarily be left up to the claimant's attorney to decide when he or she wishes to have the fee determined."  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]

    Plaintiff sued Defendant after an auto accident, alleging injuries to his neck and back.  On November 29, 2005, Plaintiff served on Defendant a proposal for settlement pursuant to F.S. 768.79 and Fla.R.Civ.P. 1.442.  Defendant rejected the proposal, and Defendant's counter-proposal was rejected by Plaintiff.  Months later Plaintiff's counsel moved for a continuance in order to determine whether another health problem of Plaintiff (an injured shoulder) was caused by the accident. Upon receipt of a physician's report the shoulder problem was added to the damages being claimed.  Plaintiff did not, however, serve a new proposal for settlement.

    The case was tried and the verdict for Plaintiff was above the 25% threshold under the proposal for judgment statute and rule.  Plaintiff moved for attorney's fees "based on the defendant's refusal to accept the plaintiff's proposal for settlement dated November 29, 2005."  The court granted the motion.

Defendant appealed, contending:  "(1) pursuant to section 768.79(7)(a), the trial court abused its discretion by failing to disallow the award of attorney’s fees as the proposal for settlement was not made in good faith, or (2) the trial court abused its discretion by awarding attorney’s fees or by failing to significantly reduce the amount of attorney’s fees requested by the plaintiff, as the fees requested were not  reasonable based on the criteria set forth in section 768.79(7)(b) and the particular facts of this case."  The Third DCA rejected Defendant's first argument but essentially agreed with the second one and reversed.  "Although we conclude that the November 2005 proposal for settlement was made in good faith based upon what the plaintiff believed his injuries and damages were at the time, we nonetheless conclude that pursuant to section 768.79(7)(b), the trial court abused its discretion by not completely disallowing an award of attorney’s fees as that would be the only reasonable award under the circumstances of this case."

    The court noted that "section 768.79(1) serves as a sanction for an unreasonable rejection of a good faith offer of settlement" (emphasis by court).  Regarding Defendant's "good faith" argument, when Plaintiff made and Defendant rejected the November 2005 proposal, both parties "believed that the plaintiff would be seeking damages only for his alleged back and neck injuries, and each evaluated the merits of the plaintiff’s proposal for settlement on the merits of those claimed injuries."

    As to the second argument, the court pointed out:  "In determining the reasonableness of an attorney’s fees award under section 768.79(7)(b), the trial court is required to consider not only the specific factors set forth in subsection (7)(b), but 'all other relevant criteria.'  § 768.79(7)(b).  Rule 1.442(h)(2) contains a similar provision."  In reversing the award of costs and fees the court stated:  "A review of the jury’s verdict demonstrates that if the damages awarded to the plaintiff for the shoulder injury are not considered, the judgment recovered would not be at least twenty-five percent greater than the offer, § 768.79(1), and the plaintiff would not be entitled to an award of attorney’s fees under section 768.79 or rule 1.442.  Thus, to require the defendant to pay attorney’s fees as a sanction for 'unreasonably' rejecting the plaintiff’s proposal for settlement would penalize the defendant for damages not pled nor proven until after the proposal for settlement was rejected and permit the plaintiff to benefit from the changing nature  of his claim after the proposal for settlement expired."  (Footnote omitted; emphasis by court).  (In the omitted footnote the court reviewed the circumstances of the jury's award.)  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]

    Lawyer represented Client, a workers' compensation claimant, from September 2007 through May 2008.  The Employer/Carrier offered $7500 to settle the case on a lump sum basis.  Before the offer was accepted, Client discharged Lawyer and hired successor counsel.  Successor counsel settled the case for $10,000.  Lawyer filed a charging client for the value of the services that he provided prior to discharge.  After an evidentiary hearing the Judge of Compensation Claims ("JCC") "denied [Lawyer]’s entitlement to fees under a quantum meruit theory, concluding that because [Lawyer] did not 'secure' any benefits, no fees were due under the statute.  In reaching this conclusion, the JCC determined that in the 2003 revision of the workers’ compensation fee statute, particularly section 440.34(1), Florida Statutes (2003), the Legislature restricted fee entitlement to only the attorney responsible for 'securing' benefits, and thus implicitly overruled this court’s holding in The Law Office of James E. Dusek, P.A. v. T.R. Enterprises, 644 So.2d 509 (Fla. 1st DCA 1994)."  Lawyer appealed.

    The First DCA reversed.  The court explained:  "Quantum meruit fee liens are applicable to workers’ compensation settlements.  . . .  A charging lien differs in nature from a claim for attorney’s fees.  . . .  Florida courts have consistently defined a charging lien as an equitable right to have costs and fees due an attorney for services in the suit secured to him in the judgment or recovery in that particular suit.  . . .  Here, the JCC decided, as a matter of law, that [Lawyer] was not entitled to a fee lien because Dusek 'predates' the 2003 changes to the attorney’s fee statute.  We disagree."  (Citations omitted.)  The court concluded that nothing in the 2003 statutory change "suggests that the Legislature, in limiting the amount of fees a claimant must pay for benefits secured, intended to alter or overrule the Dusek holding relative to a discharged attorney’s entitlement to a charging lien."  (Emphasis by court.)  Rather, "[t]he only meaningful and relevant difference between the 1991 and 2003 fee statutes, for our purposes, is in the means of calculating a reasonable fee paid by a claimant for benefits secured, not the means of establishing entitlement to such fees.  Based on the foregoing analysis, we hold that Dusek is still good law with respect to a discharged attorney’s entitlement to assert a quantum meruit charging lien."

    The court then turned to discuss the determination of the amount of Lawyer's charging lien.  "We hold, therefore, that under the 2003 Workers’ Compensation Law, the clear legislative intent was to limit the amount of attorney’s fees payable by a claimant for benefits secured.  In cases where the discharged attorney successfully proves entitlement to a charging lien, the JCC is required to apportion the fee between the discharged attorney and the successor attorney.  Attorneys who accept a workers’ compensation case with prior representation will be well advised to familiarize themselves with the work of prior counsel and utilize the foundation already laid so as to avoid duplication of efforts.  In deciding quantum meruit fee liens, the law presumes regularity and competence in the services performed by the successor attorney."  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]

    Plaintiff, an employer, entered into confidentiality agreements containing restrictive covenants with 2 employees.  The employees left Plaintiff's employ.  Not long thereafter, Plaintiff was called by Competitor, who asked whether one of the employees was bound by a restrictive covenant.  The content of Plaintiff's response was later disputed.  Nevertheless, Competitor hired the employees.

    Plaintiff sued, seeking an injunction to enforce the restrictive covenant and damages for its alleged violation.  Plaintiff pleaded entitlement to attorney's fees under F.S. 542.335(1)(k) (2007).  The trial court granted Plaintiff's motion for fees against Competitor, and commented:  "It is not the language [of section 542.335(1)(k)].  A lot has to do with whether or not [Competitor], in effect, stole them.  There was testimony about the fact that she knew there was a noncompete when they went to work.  So the question is whether or not, under the statute of fair and equitable [sic], to hit her up for attorney fees as well."  Competitor appealed.

    The Fourth DCA reversed.  Initially, the court noted that, "[t]o the extent the circuit court awarded attorney’s fees as a matter of equity, the court erred.  'Attorney’s fees cannot be awarded as a matter of equity.'  Attorney’s Title Ins. Fund, Inc. v. Landa-Posada, 984 So.2d 641, 643 (Fla. 3d DCA 2008)."

    Furthermore, the language of the statute did not support a fee award against someone who was not a party to the contract.  The court quoted from another portion of section 542.335 and observed that, "If a plaintiff cannot enforce a restrictive covenant against a person who did not sign it, then it follows that a plaintiff cannot recover its attorney’s fees from that person either.  Here, [Competitor] did not sign the restrictive covenant and, therefore, subsection (1)(a) precludes the plaintiff from enforcing the restrictive covenant against her.  Because the plaintiff could not enforce the restrictive covenant against [Competitor], the circuit court could not order her to pay the plaintiff’s attorney’s fees and costs under subsection (1)(k)."

    The appeals court certified conflict with Sun Group Enterprises, Inc. v. DeWitte, 890 So.2d 410 (Fla. 5th DCA 2004).  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]

    Lawyer represented Claimant in a worker's compensation case.  Before the case was concluded, Lawyer was replaced by another lawyer.  Lawyer sought to recover an attorney's fee.  The employer and carrier agreed to the fee, but the stipulation submitted by the parties in October 2007 did not include the information required for approval by the Judge of Compensation Claims ("JCC").  In November 2007 a memorandum from the JCC directed Lawyer to submit the necessary documentation.  Lawyer did not provide the information, and in December 2007 the JCC entered an order directing Lawyer to schedule a telephone hearing on the fee motion.  Prior to the hearing, Lawyer was to submit the supporting documentation showing that his services resulted in the benefits obtained by Claimant.  Lawyer failed to provide the documentation by the time of the hearing.  Nevertheless, the JCC did not deny the fee motion but kept the matter open until February 28, 2008, when he entered a final order denying Lawyer's motion for fees.

    Lawyer appealed, contending "that the judge should not have denied the motion for attorney’s fees without setting a fixed time limit for providing the necessary documents."  The First DCA affirmed, stating:  "We reject this argument.  It would have been clear to any lawyer that the documentation was to be presented immediately.  The judge requested the information on three occasions and ultimately allowed more than three months to provide it."  The JCC "had authority to require counsel to submit evidence in support of the motion for an attorney’s fee" and "correctly denied the motion on the ground that the evidence had not been presented."  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]

    Defendant and a number of his alleged fellow gang members in Manatee County were charged with racketeering under RICO statutes.  Due to a conflict of interest, the circuit court could not appoint the public defender or the Office of Criminal Conflict Civil Regional Counsel to represent Defendant.  Accordingly, the circuit court created an "Involuntary Appointment List."  Lawyer was among the local attorneys placed on the list.  Two other attorneys were first appointed to represent Defendant, but each was granted leave to withdraw.  Lawyer was then appointed.  Lawyer moved to withdraw, but the court denied the motion.  Concerned about the effect of the appointment on Lawyer's practice but viewing the need to find counsel for Defendant as paramount, the circuit court fashioned a "detailed plan" under which Lawyer would be compensated for representing Defendant.

    Lawyer then petitioned the Second DCA for certiorari.  Lawyer asserted 4 arguments in support of his petition.  "First, the involuntary appointment of [Lawyer] to [Defendant]'s case results in a significant burden to [Lawyer] that is not only confiscatory of his time but also compromises his ability to provide ethical and competent representation to the client.  Second, the financial burden imposed on [Lawyer] by the appointment is so great that it creates an inherent conflict between him and [Defendant].  Third, whether [Lawyer] is forced into a contract with the JAC under the circuit court's order or is to be paid under the provisions of section 27.5304 [establishing maximum statutory fees for appointed counsel, but providing for "complicated and time-consuming procedures for obtaining a fee in excess of the statutory maximum"], the circuit court's order violates [Lawyer]'s constitutional right of contract under article I, section 10 of the Florida Constitution.  Finally, the involuntary appointment violates various other constitutional rights, including equal protection, due process of law, and the right of association."

    The appellate court granted Lawyer's petition.  "Because we agree that [Lawyer] established grounds to withdraw under rule 4-6.2 of the Rules Regulating The Florida Bar, we need not address his constitutional arguments."  (The court noted that the Florida Supreme Court rejected similar constitutional arguments in In re Amendments to Rules Regulating The Florida Bar-1-3.1(a) and Rules of Judicial Adminstration-2.065 (Legal Aid), 573 So.2d 800, 805 (Fla. 1990).)

    The court observed that RICO actions such as the one facing Defendant are extremely complex and burdensome, and that "the practice of law has changed dramatically since the 1930s when the fictional Atticus Finch practiced law" (and defended an unpopular accused without mention of a fee).  The court concluded that Lawyer's continued representation of Defendant would result in violation of the Rules of Professional Conduct.  See Rule 4-6.2(a).  "Here, the undisputed evidence established that the involuntary appointment to [Defendant]'s case would make it impossible for [Lawyer] to handle the legal business of his existing clients and provide them with competent representation.  Such derelictions by [Lawyer] would result in the violation of rules 4-1.1, 4-1.2(a), 4-1.3, and 4-1.4.  Under these circumstances, [Lawyer] established good cause for moving to withdraw from [Defendant]'s case.  See In re Amendments, 573 So.2d at 806; ABA Formal Op. 06-441 at 4-5."

    Additionally, the continued representation would place "an unreasonable financial burden on" Lawyer.  See Rule 4-6.2(b).  "When a lawyer is required to work exclusively on a single client's business for an extended period of time, work for existing clients must generally be postponed or  referred to other attorneys.  While the lawyer is working exclusively on one client's affairs, it is difficult -- if not impossible -- to accept new business.  For such work on behalf of a single client performed on a 'crash basis,' the lawyer ought to receive a premium above his or her normal fee to compensate for the disruption to the lawyer's practice.  See Mark W. Klingensmith, Attorney-Client Relationship § 1.19, in Florida Civil Practice Before Trial (Fla. Bar CLE 8th ed. 2009); see also R. Regulating Fla. Bar 4-1.5(b)(1)(B) ('Factors to be considered as guides in determining a reasonable fee include . . . the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer.').  The circumstances of the involuntary appointment of [Lawyer] to [Defendant]'s case turn basic law office economics on its head by requiring [Lawyer] to work for one client on a 'crash basis' at a rate substantially below the market rate for similar services."  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]

Landlord sued Tenant for breach of a commercial lease that provided for attorney's fees to the prevailing party.  Tenant did not assert a claim for fees in a pleading, although "[b]efore trial tenant filed several documents claiming attorneys fees as the putative prevailing party."  Specifically, Tenant filed a motion to dismiss Landlord's complaint; the motion included a claim for attorney's fees under the lease.  Later, although Tenant had ceased pursuing the motion, it filed memoranda with the court arguing its claim for fees.  Landlord did not object to Tenant's claim for fees.

At the bench trial the judge ruled in Tenant's favor and then found Tenant was entitled to attorney's fees.  Landlord moved for rehearing, arguing that under Stockman v. Downs, 573 So.2d 835 (Fla. 1991), Tenant was not entitled to fees because it failed to demand them in a pleading.  The trial court then agreed and struck attorney's fees from the final judgment.

Tenant appealed.  The Fourth DCA reversed, concluding that the trial court erred in denying fees to Tenant under the facts of the case.  The appeals court noted that Stockman "created a rule of procedure with an exception."  (Footnote omitted.)  The "limited exception" under Stockman provides:  "'Where a party has notice that an opponent claims entitlement to attorney’s fees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement, that party waives any objection to the failure to plead a claim for attorney’s fees.'"  (Emphasis supplied by Fourth DCA; citations omitted.)

The court pointed out that "[p]lainly the purpose of the Stockman rule is notice to the party having to pay such fees.  But if an adversary attempts to claim such fees without a pleading, Stockman pointedly requires the party who would oppose the fees to make a formal objection."  (Footnote omitted.)  In the instant case, Landlord never objected to Tenant's claim for fees until after the original judgment had been entered.  "If landlord desired to insist on a strict application of the Stockman rule and avoid its exception, it was necessary to object when tenant attempted to claim fees without a formal pleading."  (Footnote omitted.)  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]

    Lawyer was suspended from practice.  Lawyer then entered into a written agreement with Law Firm (which was not the firm to which Lawyer had belonged).  Under the agreement Law Firm assumed responsibility for Lawyer's unfinished cases, which included both hourly fee and contingent fee matters.  Law Firm agreed to pay Lawyer as an "independent contractor" for working on the cases, and to compensate him for unpaid fees and advanced costs when the contingent fee cases were resolved.  The Second DCA summarized the financial terms of the agreement:  "[U]nder the agreement, the Law Firm was to pay [Lawyer] compensation at an hourly rate for paralegal work performed by him after the date of the agreement.  For work performed before [Lawyer] suspension from the practice of law, the Law Firm agreed to pay [Lawyer] on a quantum meruit basis when the cases concluded.  Any payments made for work done at an hourly rate were to be credited against the amounts that might be due [Lawyer] in quantum meruit for work he had performed before he was suspended.  The agreement between [Lawyer] and the Law Firm was reviewed and approved by The Florida Bar."

    The agreement was entered into in October 2003.  In March 2005 Lawyer submitted a petition for disciplinary resignation with the Florida Supreme Court.  The Court granted his petition effective nunc pro tunc July 2003.  In 2006 Lawyer sued Law Firm, alleging that the firm owed him money under their agreement.  Law Firm moved for summary judgment, claiming that Lawyer "'chose for his own benefit to voluntarily resign from [T]he Florida Bar and thus make it impossible for him to represent his client'" and that, consequently, he was barred from receiving compensation under Faro v. Romani, 641 So.2d 69 (Fla. 1994) (lawyer who on own volitions withdraws from contingent fee case before contingency occurs forfeits right to compensation).  The trial court granted Law Firm's motion for summary judgment.  Lawyer appealed.

    The Second DCA reversed, concluding that Faro's holding was inapplicable.  "Unlike the situation in Faro and similar charging lien cases, here [Lawyer] is not seeking to impose a charging lien on any client's settlement or award.  Nor does he seek the recovery of fees against any of his former clients.  Instead, [Lawyer] is seeking to enforce a written contract with the Law Firm, a successor that assumed a number of his pending cases and agreed to pay him a fee based in quantum meruit for the work he had done and the expenses he had incurred in connection with those cases during the period of time that he was authorized to practice law.  The Law Firm was fully informed about [Lawyer]'s status as a suspended lawyer when it entered into the agreement, and it sought and obtained approval of the agreement from The Florida Bar.  The Law Firm certainly expected to receive benefits from the arrangements that it made with [Lawyer], or it would not have entered into the agreement.  There is nothing in the agreement providing that [Lawyer]'s disciplinary resignation or disbarment would result in the forfeiture of his contractual rights.  Furthermore, the Law Firm does not contend that the conduct which led to [Lawyer]'s suspension and disciplinary resignation had anything to do with any of the cases for which [Lawyer] seeks compensation under the agreement.  Under these circumstances, Faro and similar charging lien cases are simply inapposite."

    The court also cited with approval several opinions of the Florida Bar Professional Ethics Committee:  Florida Ethics Opinions 90-3, 72-16, 66-20, and 65-21.  Regarding Law Firm's contention that the opinions were not authoritativ, the court stated:  "We agree that the ethics opinions of The Florida Bar are not controlling; nevertheless, they are persuasive authority and, if well reasoned, are entitled to great weight.  See Estate of Schwartz v. H.B.A. Mgmt., Inc., 673 So.2d 116, 118 (Fla. 4th DCA 1996) (citing Krivanek v. Take Back Tampa Political Comm., 625 So.2d 840, 844 (Fla. 1993), approved, 693 So. 2d 541 (Fla. 1997).  We find The Florida Bar ethics opinions cited above to be persuasive and well-reasoned.  Moreover, these opinions are in accord with well-reasoned decisions on the subject from courts in other jurisdictions."  (Citations omitted.)  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]

    Law Firm represented Client on a contingent fee basis in a suit arising from a boating accident.  Client discharged Law Firm, and Law Firm filed a charging lien for attorney's fees and costs.  Successor counsel settled Client's case on December 20, 2007.

    After "extensive hearings" on the charging lien, the trial court awarded attorney's fees and costs to Law Firm.  The court denied Law Firm's request for prejudgment interest on the fee award on the basis that the attorney's fee was "unliquidated."  Regarding costs, the court ruled that Law Firm was entitled to prejudgment interest "from the date that the law firm paid or incurred each cost."  Client appealed the award of prejudgment interest on the cost award, and Law Firm cross-appealed the denial of prejudgment interest on the attorney's fee award.

    The Fourth DCA ruled that the trial court erred in both of its prejudgment interest rulings.  The operative agreement between Client and Law Firm provided that Client "would reimburse costs when she recovered money in the case."  As to interest on the costs, "[t]his means that prejudgment interest on the cost award should run from December 20, 2007, the date the case was settled, or from a later date, if that was the time [Client] received payment on the settlement."

    Regarding interest on the fee award, the appeals court stated:  "[A]n attorney’s fee award is subject to the assessment of prejudgment interest.  See Quality Engineered Installation, Inc. v. Higley S., Inc., 670 So.2d 929, 930-31 (Fla. 1996).  Where a law firm obtains a quantum meruit recovery after being discharged in a contingent fee case, the firm is entitled to prejudgment interest on the award set by the court.  See Quality Engineered, 670 So.2d at 931; Arabia v. Siedlecki, 789 So.2d 380, 384 (Fla. 4th DCA 2001)."  Accordingly, Law Firm was entitled to prejudgment interest on the fee award from the date Client received the settlement proceeds.  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]

    Former Wife appealed a final judgment of dissolution of marriage.  The First DCA affirmed.  The parties on appeal did not challenge the trial court's award of 50% of Former Wife's attorney's fees and costs.  Former Wife moved for appellate attorney's fees, but the appeals court denied the motion.

    The court explained:  "However, we take this opportunity to remind the bar about the long-standing and well-established pleading requirements for motions for attorney’s fees and costs.  Florida Rule of Appellate Procedure 9.400(b) states that a motion for attorney’s fees 'shall state the grounds on which recovery is sought.'"  Former Wife's motion did not satisfy this requirement.  "The former wife’s motion for attorney’s fees and costs alleges that the financial affidavits will show that the former husband has the superior financial ability to pay the former wife’s fees and costs; the motion requests a provisional order granting appellate fees and costs.  The motion does not mention section 61.16, Florida Statutes (2007), which is the statute specifically governing family law attorney’s fees, suit money, and costs, nor does it cite any other legal basis for the claim.  [United Services Automobile Ass'n v.] Phillips [775 So.2d 921 (Fla. 2000)] and its progeny compel us to conclude that the motion for appellate fees and costs is facially insufficient and must be denied."  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]

    Parties to a long-running series of litigation appealed the trial court's award of attorney's fees.  The Appellants contended that the court erred in not including in the fee award the "value of paralegal labor in preparing for hearings and related proceedings.  The paralegals in question are not regular employees or staff of their able counsel but instead none other than [the Appellants] themselves."

    The Fourth DCA affirmed.  "The inherent possibility for mischief in deeming the client a paralegal of the representing attorney is apparent enough to cast a dense shadow over even the mere theoretical prospect of the argument they make. In this instance we note the utter absence of any showing that the labor of the client was required by the lawyer or had the effect of reducing the fee claimed by the lawyer."  Lewis v. Nical of Palm Beach, Inc., __ So.3d ___, 34 Fla.L.Weekly D1477 (Fla. 4th DCA, No. 4D07-3721, 7/22/2009), 2009 WL 2168815.

Where there are competing claims for prevailing party attorney's fees, trial court should make determination after evidentiary hearing.  [Added 7/23/09]

    After a jury verdict on a breach of contract case the trial court entered judgment in favor of Gulfside Construction in its suit against the Voses.  A jury found in favor of the Voses, however, on a construction lien claim filed by Gulfside.  Both Gulfside and the Voses sought an award of attorney's fees as the prevailing party, Gulfside on the breach of contract claim and the Voses on the construction lien claim.  The trial court heard the motions, ruled that Gulfside prevailed on "significant issues" in the case, and awarded fees to Gulfside.  The court also denied the Voses' motion for an evidentiary hearing on the fees issue.

    On appeal, the Second DCA decided that the trial court erred by denying the Voses motion for an evidentiary hearing.  "Where there are competing claims for attorneys' fees supported by separate legal bases of a construction lien claim and a breach of contract claim, the trial court’s discretion to award attorneys' fees should be determined after an evidentiary  hearing.  Sullivan v. Galske, 917 So.2d 412 (Fla. 2d DCA 2006).  Here, due to the competing nature of the claims, the court was required to conduct an evidentiary hearing."

    The court also pointed out that "at the time of its ruling, the trial court did not have the benefit of the Florida Supreme Court's decision in Trytek v. Gale Industries, Inc.., 3 So.3d 1194 (Fla. 2009), which determined that when Prosperi [v. Code, 626 So.2d 1360 (Fla. 1993)] is applied to the facts of a case, there is no mandatory requirement that a court determine that one party is the 'prevailing party.'"  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]

    Plaintiff sued Employer and one of its Employees.  Plaintiff alleged that Employer was vicariously liable for Employee's actions.  Employer served Plaintiff with a $5000 proposal for settlement pursuant to F.S. 768.79.  The proposal was made by Employer but conditioned on Plaintiff releasing the claims against both Employer and Employee.  The proposal did not apportion the $5000 between Employer and Employee.  Employer and Employee prevailed in the suit and moved for attorney's fees against Plaintiff.  The trial court awarded the fees.

    Plaintiff appealed, contending that the proposal was a "joint proposal" and did not comply with the statute because it was not apportioned among Employer and Employee.  Rejecting this contention, the Fourth DCA affirmed.  "By its own terms, the proposal for settlement was made by [Employer] and [Employer] alone was offering to pay the sum of $5,000.  The dismissal of the entire suit, including the claims against [Employee], was simply a condition of the proposal and did not serve to transform the proposal for settlement into one made by multiple offerors."  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]

    Plaintiff brought suit against her HMO seeking injunctive relief and attorney's fees due to HMO's alleged refusal to provide coverage for a particular treatment.  As it turned out, however, HMO had agreed to pay for the treatment before Plaintiff filed suit.  The trial court dismissed Plaintiff's claims, emphasizing that "the request for injunctive relief was merely a pretext, and that the true purpose of the suit was for [Plaintiff] to collect attorney's fees."  Despite this, Plaintiff appealed.  The First DCA stated:  "Her persistence is difficult to understand in light of this record.  Obviously, we affirm."

    Additionally, the appeals court imposed appellate attorney's fees in an equal amount against Plaintiff and her lawyer as a sanction under F.S. 57.105(1).  "Fees are appropriate under section 57.105(1) when the party or the parties’ attorney pursued a claim or defense that is without factual or legal merit.  . . .  The test is simply whether the 'party or his counsel knew or should have known, at the time of filing, [that the claims were] not grounded in fact, or were not warranted by existing law or by reasonable argument for extension, modification, or reversal of existing law.'  [Gopman v. Dept. of Education, 974 So.2d 1208, 1210 (Fla. 1st DCA 2008)].  Importantly, section 57.105 'does not require a party seeking fees to show the complete absence of a justiciable issue of fact or law, but permits fees to be recovered for any claim or defense that is insufficiently supported.'  Id.; see also Wendy’s of N.E. Fla., Inc. v. Vandergriff, 865 So.2d 520, 523 (Fla. 1st DCA 2003)."

    The court noted that the suit had been brought as a "pretext" and that Plaintiff's argument on appeal "lacks legal and factual merit."  The court stated that [u]nfortunately, refusing to acknowledge unfavorable facts was not an option [Plaintiff] or her attorney possessed.  This conduct is sanctionable as it violates an appellate counsel’s 'ethical obligation to present [] the facts [] accurately and forthrightly.'  Boca-Burger, Inc. [v. Forum], 912 So.2d [561 (Fla. 2005)] at 571[.]"

    In a footnote, the court observed that the trial court had "rebuked [Plaintiff]’s counsel, stating the 'suit was a jump-the-gun suit, a gotcha suit.  After you heard that they were going to pay for [the treatment], you rushed the suit, in effect, so that you could try to get your attorney’s fees out of it.'"  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]

    Plaintiff filed a negligence suit against Defendants.  The trial court ordered the matter to non-binding arbitration under Fla.Stat. sec. 44.103 (2004).  Plaintiff rejected the arbitrator's decision and went to trial, where the jury returned a verdict for Defendants.  After the trial court entered final judgment for Defendants, Defendants moved to tax costs and fees against Plaintiff for not accepting the arbitrator's decision.  The court granted the motion and awarded attorney's fees to Defendants.  Plaintiff appealed.

    The Fourth DCA affirmed.  Plaintiff argued that Stockman v. Downs, 573 So.2d 835 (Fla. 1991), required Defendants to plead entitlement to attorney's fee and that their failure to do so meant that the trial court erred in awarding fees.  The appellate court disagreed.  The court observed:  "Our supreme court and this court have enforced Stockman’s 'no pleading, no fees' rule in situations where the entitlement to fees and costs existed  from the outset based upon a contract or statute which was the subject of the underlying claim or defense.  . . .  However, the supreme court and the Second District have created exceptions to Stockman where the entitlement to fees and costs arose during the suit based upon some event which is supplemental to the underlying action."  (Emphasis in original.)

    The court pointed to the Supreme Court's decision in Ganz v. HZJ, Inc., 605 So.2d 871 (Fla. 1992), and concluded:  "The Ganz analysis applies here as well.  To paraphrase the supreme court, it is extremely difficult, if not impossible, for a party to plead in good faith its entitlement to attorney’s fees under section 44.103 before the case is ended.  There is certainly no way for a litigant to know in advance whether the fee-shifting provision of 44.103 will become effective and, therefore, to plead in good faith its entitlement to attorney’s fees under that statute.  It is only after the case has been terminated that a party can determine whether the fee-shifting provision has become effective, and, if so, to file an appropriate motion seeking an entitlement to said attorney’s fees."  The court also noted that section 44.103 "seems to provide that requests for attorney's fees also be made by motion after judgment."  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.