– Attorney’s fees in Florida are only available if allowed by contract or statute.
– Attorney’s fees incurred outside of litigation may be recoverable as compensatory damages, if pled as special damages in a later lawsuit.
– Non-litigation related attorney’s fees may be recoverable as special damages if they were necessary due to a tortfeasor’s actions. 1. One-way attorney’s fees provisions in contracts allow the prevailing party to recover their attorney’s fees.
2. Florida law allows the court to award reasonable attorney’s fees to the other party when that party prevails in any action with respect to the contract.
3. In cases where the result of the litigation is a tie or the prevailing party is difficult to determine, the court must still award the prevailing party a reasonable attorney’s fee. 1. The significant issues test is used by the Court to determine the prevailing party in litigation.
2. In breach of contract actions, one party must prevail, according to case law.
3. The Court has discretion to find that neither party prevailed in litigation, despite the general rule in breach of contract actions. – The Florida Supreme Court found in Trytek v. Gale Industries, Inc. that it is possible that neither party prevailed in a statutory lien case, but the majority rule is that there must be a prevailing party in a breach of contract action.
– The appellate court in Port-A-Weld, Inc. v. Padula & Wadsworth Construction, Inc. held that the significant issues test cannot be modified by contract, citing a contract provision that established a specific threshold for considering a party as a prevailing party. – Contractual language awarding attorney’s fees are strictly construed and are contrary to the American Rule.
– A contract that entitled the prevailing party in a “legal action” to attorney’s fees was interpreted to include arbitration in at least one case.
– Prevailing party attorney’s fees clause in a contract should state that it applies to arbitration as well as litigation, but terms such as “legal action” have been interpreted to include both litigation and arbitration.
– Fla. Stat. 448.08 allows the prevailing party in a claim for unpaid wages to receive their attorney’s fees. 1. Commissions, partnership distributions, bonuses, and profit sharing plan contributions have been considered as wages in Florida courts.
2. Attorney’s fees are not mandatory for successful wage claims in Florida, as the statute uses the permissive word “may” instead of the mandatory word “shall”.
3. Independent contractors are not entitled to attorney’s fees under Florida Statute 448.08.
4. The Florida Deceptive and Unfair Trade Practices Act (FDUTPA) creates a cause of action for business practices that are likely to mislead or substantially injurious to consumers.
5. FDUTPA claims can be brought as class action claims.
6. FDUTPA allows for the prevailing party in civil litigation to receive reasonable attorney’s fees and costs from the nonprevailing party. – The court may award reasonable attorney’s fees and costs to the prevailing party in FDUTPA cases if there was a complete absence of a justiciable issue raised by the losing party, or if bad faith is found.
– Factors considered when determining whether to award attorney’s fees include the scope and history of the litigation, the opposing party’s ability to pay, and whether an award would deter similar behavior.
– The merits of the respective positions, the opposing party’s bad faith or culpability, whether the claim was frivolous or brought in bad faith, and whether the defense was raised mainly to frustrate or stall are also considered.
– Consideration of lack of bad faith and the ability to pay make it easier for a Court to not award attorney’s fees against a plaintiff in FDUTPA cases. – The proposal for settlement statute allows for attorney’s fees to be awarded if an offer of judgment is unreasonably denied.
– The statute allows a plaintiff to recover attorney’s fees if their offer of judgment is declined by the defendant and they obtain a judgment at least 25 percent greater than the offer.
– Conversely, the statute allows a defendant to recover attorney’s fees if their offer of judgment is declined by the plaintiff and the plaintiff’s judgment is at least 25 percent less than the offer.
– A proposal for settlement can be used to trigger a claim for attorney’s fees even when there is no contractual or statutory right to attorney’s fees.
– In contingency cases, attorney’s fees awards can be increased through the use of a multiplier from 1.5 to 2.5, but recent cases have limited the applicability of the use of a multiplier. – The relevant market’s requirement for a contingency fee multiplier
– The attorney’s ability to mitigate the risk of nonpayment
– The factors set forth in Rowe, including the amount involved, the results obtained, and the type of fee arrangement between the attorney and the client
– The time and labor required, the novelty and difficulty of the legal question, and the skill required
– The likelihood that accepting the employment will preclude other opportunities for the lawyer
– The customary fee charged for similar legal services in the locality
– The amount involved and the results obtained
– Time limitations imposed by the client or circumstances
– The nature and length of the professional relationship with the client
– The experience, reputation, and ability of the lawyer or lawyers performing the services
– Whether the fee is fixed or contingent 1. Fee multipliers are not appropriate for attorney’s fees awarded by the Offer of Judgment Statute in Florida.
2. The purpose of a fee multiplier is to encourage litigation, while the purpose of the Offer of Judgment Statute is to encourage settlement.
3. The Offer of Judgment Statute is considered penal in nature and is meant to encourage settlement, according to the Sarkis v. Allstate Ins. Co. case.
4. Without specific authorization for a fee multiplier in the Offer of Judgment Statute or Florida Rule of Civil Procedure 1.442, there is no basis for a fee multiplier for attorney’s fees awarded under the statute. – In some recent cases, it has been found that the ability to obtain competent counsel without a fee multiplier is a factor in determining whether a multiplier is appropriate.
– The Florida Supreme Court clarified that fee multipliers can be appropriate even in insurance coverage disputes.
– Most contingency cases would not support a multiplier, but some recent cases have affirmed a multiplier in insurance coverage disputes.
– The most important factor in determining whether a multiplier is appropriate is whether a substantial number of attorneys are willing to take the case on contingency.
– It has been held that a fee multiplier is appropriate when there is a large number of attorneys willing to take the case on contingency and settle for a small percentage of the amount due. 1. A 3.0 multiplier is allowed in Florida Patient’s Compensation Fund v. Rowe (1985).
2. However, the maximum multiplier appears to be limited to 2.5 in Standard Guaranty Ins. Co. v. Quanstrom (1990).
https://www.jimersonfirm.com/blog/2018/07/attorneys-fees-multipliers-in-florida/
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