В сложной финансовой ситуации приходит на помощь кредит наличными в Казахстане.

attorneys’ fees

Attorney’s Fees on Attorney’s Fees

Posted by David Adelstein on July 04, 2019
Trial Perspectives / Comments Off on Attorney’s Fees on Attorney’s Fees

Can I recover my attorney’s fees for litigating the reasonable amount of attorney’s fees I should be entitled to for prevailing in my lawsuit?  This concept is known as “fees on fees.”  It depends.

Generally, [i]t is settled that in litigating over attorney’[s] fees, a litigant may claim fees where entitlement is the issue, but may not claim attorney’s fees incurred in litigating the amount of attorney’s fees.  Nonetheless, certain contractual provisions are sufficiently broad to warrant an exception.

The Burton Family Partnership v. Luani Plaza, Inc., 44 Fla. L. Weekly D1720c (Fla. 3d DCA 2019) (internal quotations and citations omitted) (finding bylaws created entitlement to attorney’s fees allowed to prevailing party to recover fees incurred for litigating the amount of attorney’s fees).

Entitlement to attorney’s fees is a creature of contract or statute.  

Statutory bases for entitlement to attorney’s fees are not really going to allow you to recover “fees on fees.” 

Contractual provisions may IF there is language in the contract that would allow such recovery.  Typically, there will be a provision that expresses that a prevailing party can recover attorney’s fees including attorney’s fees incurred in litigating the reasonable amount of attorney’s fees. 

While there are times I include or agree to such language, I am generally wary of this language because it disincentivizes a party from agreeing to settle the reasonable amount of attorney’s fees in advance of an evidentiary hearing to determine the reasonable amount because they know they will get “fees on fees.”   For example, what if the other side prevailed and they incurred $150,000 in attorney’s fees.  You want to settle the issue for $120,000.   The other side may likely be disincentived from settling this amount because not only do they know a court may award them more than the $120,000 in reasonable attorney’s fees, but now they get reasonable fees for litigating the amount that should be deemed reasonable.  Thus, you may be better off agreeing to the $150,000 because you would have to incur attorney’s fees too in litigating the amount of fees.  Something to consider when agreeing to or dealing with this provision.

 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Tags: , , , , ,

Two Proposal for Settlement Considerations

Posted by David Adelstein on June 01, 2019
Trial Perspectives / Comments Off on Two Proposal for Settlement Considerations

A proposal for settlement is a vehicle used to create an argument for the recovery of attorney’s fees from the date the proposal is served on forward if the opposing party does not accept the proposal within 30 days.  In certain circumstances, such as when there is there is no basis to recover attorney’s fees, it can be a useful vehicle to create an argument to recover attorney’s fees.   There are also strategic reasons to serve a proposal for settlement at a certain point in time in the litigation.  There are definitely strategic issues that must be considered when serving a proposal for settlement.  

Two things to note when serving a proposal for settlement:

 

  • The proposal for settlement cannot be served right off the bat.  A proposal for settlement to a plaintiff cannot be served until 90 days after the action has been commenced.  A proposal for settlement to a defendant cannot be served until 90 days after the defendant was served with the lawsuit

 

  •  A trial court’s stay of the lawsuit does not stay the proposal for settlement requirements.  For instance, in Old Dominion Ins. Co. v. Tipton, 44 Fla. L. Weekly D1102a (Fla. 2d DCA 2019), a lawsuit was stayed and as soon as the stay was lifted the defendant served the plaintiff a proposal for settlement.  The plaintiff argued that the prior stay precluded the defendant from serving the proposal because, when factoring in the stay, the proposal was served prematurely before the expiration of the 90-day period.  The appellate court disagreed finding that the stay, itself, did not toll the proposal for settlement requirements.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Tags: ,

Mutuality of Obligation when it comes to Contractual Attorney’s Fees

Posted by David Adelstein on May 11, 2019
Trial Perspectives / Comments Off on Mutuality of Obligation when it comes to Contractual Attorney’s Fees

The recovery of attorney’s fees is a creature of contract or statute.  When a party prays for attorney’s fees in a lawsuit, that prayer for relief is based on a contractual basis or a statutory basis to attorney’s fees. 

Sometimes, contracts include one-way prevailing party attorney’s fees.  In other words, the contract may provide that if one party (typically, the drafter of the contract) has to enforce the contract, the other party has to pay that party’s attorney’s fees and costs.  But, what if the other party has to enforce the contract or prevails in the other party’s enforcement action.   Is that attorney’s fees provision reciprocal? The answer is YES based on Florida Statute’s s. 57.105(7) mutuality of obligation requirement.  Section 57.105(7) provides:

If a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.

“The purpose of section 57.105(7) is simply to ensure that each party gets what it gives.  However, “[t]he statute is designed to even the playing field, not expand it beyond the terms of the agreement.”  CalAlantic Group, Inc. v. Dau, 44 Fla. L. Weekly D1004b (Fla. 5thDCA 2019).   “[I]f a claim is within the scope of an attorney’s fees provision, the party defending against that claim is entitled to attorney’s fees pursuant to section 57.105(7) if the party prevails.”  Id

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

 

 

Tags: , , ,

Considerations when Multiple Proposals for Settlement are Served on Separate Defendants

Posted by David Adelstein on February 17, 2019
Trial Perspectives / Comments Off on Considerations when Multiple Proposals for Settlement are Served on Separate Defendants

I have previously discussed proposals for settlement / offers of judgment (“proposals for settlement”).  A proposal for settlement is a statutory vehicle pursuant to both Florida Statute s. 768.79 and Florida Rule of Civil Procedure 1.442 to create an argument to recover attorney’s fees based on the judgment amount.  (See this article for more on proposals for settlement).

For a plaintiff (party seeking affirmative relief), the plaintiff must obtain a judgment 25% greater than the proposal for settlement amount. When there are multiple defendants, the plaintiff needs to serve a proposal for settlement on each defendant. 

In Cassedy, Jr. v. Wood,44 Fla.L.Weekly D422a (Fla. 1st DCA 2019), a landlord sued his tenants for breach of a lease when the tenants vacated the property and stopped paying rent.  The lease agreement provided that if collection was required by the landlord, the tenant was required to pay 10% of the judgment amount to cover attorney’s fees.  I have no clue why the attorney’s provision in the lease included this language versus the standard prevailing party attorney’s fees language.

The landlord, obviously knowing the lease would not make him whole for purposes of recovering his attorney’s fees based on that interesting attorney’s fees language, also served a proposal for settlement on each of his tenants.  The proposal for settlement required each tenant, independent of the other tenants, to pay the landlord $25,000.   If the landlord recovered a judgment 25% greater than any proposal for settlement amount, the landlord would now have an argument to recover his attorney’s fees from the date he served the proposal for settlement on forward.

The landlord recovered a judgment of $83,657.60 against the tenants.  The tenants were jointly and severally liable for this amount, meaning they were ALL on the hook for this total amount and the landlord could collect this judgment amount from any one or a combination of the tenants.  This makes sense since likely all of the tenants were on the lease and signed the lease.

The trial court denied attorney’s fees pursuant to the proposal for settlements, which was subject to a de novo standard of appellate review.  The appellate court reversed.

The tenants argued the separate $25,000 proposal for settlement amounts should be aggregated (totaling $75,000) for purposes of determining whether the judgment amount was 25% greater than the proposals for settlement amount for purposes of determining whether attorney’s fees should be awarded.  This was shot down on appeal.  There is no requirement that separate proposals for settlement be aggregated and there was no dispute that the landlord recovered a judgment against all the defendants ($83,657.6) 25% greater than the $25,000 proposal for settlement amounts, especially since all of the tenants were jointly and severally liable for the judgment.

The tenants also argued that the landlord could not recover attorney’s fees pursuant to the lease and also through a proposal for settlement.  This was shot down on appeal.  “Based on the imposition of a penalty pursuant to section 768.79 [Florida Statutes] and its mandatory application if all requirements are met, we find a party is not precluded from receipt of attorney’s fees under a contract and the [proposal for settlement] statute simultaneously.”  Cassedy, Jr., supra.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Tags: , , , , ,

Proposals for Settlement ONLY Apply to Claims for Monetary Relief

Posted by David Adelstein on December 02, 2018
Trial Perspectives / Comments Off on Proposals for Settlement ONLY Apply to Claims for Monetary Relief

While there are times I will serve a proposal for settlement to create an argument to recover attorney’s fees, I always tell clients proposals for settlement create nothing more than an argument.  In other words, you cannot bank on actually recovering attorney’s fees because of conflicting case law or case law that finds reasons to invalidate a proposal for settlement. Thus, when I serve a proposal for settlement, I make sure the client’s expectations are tempered.  But, when I receive a proposal for settlement on behalf of a client, I make sure the client appreciates that they can be liable for attorney’s fees regardless of the conflicting case law in effect.  Proposals for settlement, in my opinion, have become head scratchers. 

 

The case of Starboard Cruise Services, Inc. v. DePrince, 43 Fla. L. Weekly D2581a (Fla. 3d DCA 2018) exemplifies the confusing nature of proposals for settlement.  In this case, the defendant served a proposal for settlement conditioned on the plaintiff releasing all claims asserted in his amended complaint and dismissing the amended complaint with prejudice.  The plaintiff’s amended complaint contained claims for monetary relief and a specific performance claim for equitable relief (where non-monetary damages were sought).  Prior to trial, the plaintiff dismissed his equitable claim and proceeded to trial only on his claim for monetary relief. The jury found in favor of the defendant and the defendant filed a motion for attorney’s fees based on its proposal for settlement (that the plaintiff did not accept).  The trial court denied the defendant’s motion for attorney’s fees finding that the proposal for settlement was invalid since it applied to plaintiff’s claims for monetary relief and equitable relief. 

The appellate court agreed with the trial court finding that the defendant’s proposal for settlement was invalid because it was conditioned on the plaintiff releasing all his claims—his claims for monetary relief and his claim for equitable relief (where non-monetary relief was also sought).   A proposal for settlement only applies to claims for money damages.

Due consideration is required when serving a proposal for settlement.  Even with that consideration, there is still the possibility that the proposal for settlement will be deemed invalid, as was the circumstance in this case.  

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Tags: ,

Incentive for Taking Case on Contingency – the Contingency Fee Multiplier

Posted by David Adelstein on August 26, 2018
Trial Perspectives / Comments Off on Incentive for Taking Case on Contingency – the Contingency Fee Multiplier

A recent appellate decision came out regarding contingency fee multipliers–the incentive for taking a case on contingency.  

I included a thorough discussion on the requirements establishing a contingency fee multiplier here.  Check out this discussion that goes into establishing reasonable attorney’s fees and then the contingency fee multiplier.

Notably, in this case, the appellate court affirmed that the elements associated with establishing an entitlement to a contingency fee multiplier are as follows:

(1) whether the relevant market requires a contingency fee multiplier to obtain competent counsel (i.e., whether there are attorneys in the relevant market and would have taken the case on contingency absent the availability of the multiplier);

(2) whether the attorney was able to mitigate the risk of nonpayment in any way; and

(3) whether any of the factors set forth in Rowe (the reasonable attorney’s fees factors) are applicable, especially, the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client.  This is looked at through the lens of the counsel at the time the counsel takes the case, and not with the benefit of hindsight.

There are a number of reasons for an attorney to take a matter on contingency.  While there is certainly a risk, there is also the prospect of an award, and with the contingency fee multiplier, the incentive is that a multiplier could be added to reasonable attorney’s fees to increase the amount of awarded fees. 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

 

Tags: , ,

Injunctive Relief + Attorney’s Fees Awarded in Favor of an Owner and Against Her Association

Posted by David Adelstein on May 12, 2018
Trial Perspectives / Comments Off on Injunctive Relief + Attorney’s Fees Awarded in Favor of an Owner and Against Her Association

Here is a case that may give associations some degree of consternation.  I think it should because it supports permanent injunctive relief against an association to comply with its governing documents when managing or maintaining a surface water management system / stormwater management system.   This case, discussed below, would extend beyond a surface water management system to any covenant in the governing documents.  

In Coconut Creek Homeowner’s Association, Inc. v. Gonzalez,  43 Fla.L.Weekly D1045a (Fla. 4th DCA 2018), a homeowner sued her homeowner’s association for failing to manage the association’s surface water management system.  The homeowner sued the association for breach of the governing documents (Declaration, bylaws, etc.) and for a permanent / mandatory injunction to compel the association to comply with its governing documents to fix the swales and drainage system (common elements owned by the association).   The lack of management of the surface water management system caused flooding problems and damage to the homeowner’s home.

The jury found that the association breached its governing documents in failing to manage the surface water management system, but awarded the homeowner $0 caused by the breach associated with her claimed damages.  But, the trial court, as affirmed by the appellate court, granted a mandatory / permanent injunction against the association to enforce restrictive covenants in the governing documents. Specifically, the injunctive relief was issued to order the association to fix the swales and drainage system and comply with its governing documents.  

Now, the association perhaps thought this was not all that bad because it did not owe the homeowner any monetary damages based on the jury’s verdict of $0.  However, the appellate court found that because the homeowner prevailed on the significant issues of her case, she is entitled to her attorney’s fees and costs.  Thus, a mandatory / permanent injunction is issued against the association requiring it to comply with the governing documents and it is liable for the homeowner’s attorney’s fees and costs, which are likely significant after a trial.  Please check out this article for more information relating to the attorney’s fees aspect of this case. 

If you live in a community governed by an association (whether a homeowner’s association or condominium association), make sure you seek counsel that appreciates the issues associated with your governing documents.  And, an association needs to likewise consider the issues so it understands its responsibilities under the governing documents and potential outcomes associated with owner disputes.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Tags: , , , , , ,

Attorney’s Fee Arrangements can be Creative or Innovative

Posted by David Adelstein on April 13, 2018
Trial Perspectives / Comments Off on Attorney’s Fee Arrangements can be Creative or Innovative

Lawyers get it.  Generally, people do not like to spend money on lawyers.  There are certainly exceptions where clients value the relationship with a lawyer knowing that the services provided and advice given is worth the fees.  Ideally, this should be the sentiment from anyone that feels they need a lawyer, even if the advice paid for is to steer you in a more focused direction based on the pros/cons of the claims and issues you are dealing with.  But, money is important and decisions cannot be made in a vacuum without understanding associated costs.  

I get that not everyone wants to have to deal with the potential unknown of hourly lawyer billing, the traditional legal model.  There are creative or innovative models out there outside of hourly lawyer billing that can be explored in certain matters, but the dynamic of that model has to work for both the client and lawyer.  If you are interested in learning a little more about the nuts and bolts of creative or innovative attorney’s fee models where there is a focus on results, performance, or meeting budgetary or target parameters, check out the ebook above. Look, there is no one-size-fits-all model.  The key takeaway is that creativity can be implemented in a business model so the attorney-client relationship works for both the attorney and the client!

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Tags: , , , , ,

Requests for Admissions as a Discovery Tool

Posted by David Adelstein on January 30, 2018
Trial Perspectives / Comments Off on Requests for Admissions as a Discovery Tool

Requests for Admissions are one of my favorite discovery tools in litigation. Requests for Admissions are designed to narrow the disputed facts by requiring the recipient of the request to admit or deny the requested fact. These should be served with the objective of having the recipient admit the requested fact.   If the recipient does admit the fact, then the fact is a stipulated fact – it does not need to be proved at trial because it is stipulated to.  

Florida Rule of Civil Procedure 1.380(c) provides:

(c) Expenses on Failure to Admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under rule 1.370 and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may file a motion for an order requiring the other party to pay the requesting party the reasonable expenses incurred in making that proof, which may include attorneys’ fees. The court shall issue such an order at the time a party requesting the admissions proves the genuineness of the document or the truth of the matter, upon motion by the requesting party, unless it finds that (1) the request was held objectionable pursuant to rule 1.370(a), (2) the admission sought was of no substantial importance, or (3) there was other good reason for the failure to admit.

Under this rule, if a recipient denies a request for admission and the requester proves the truth of the matter, the requester is entitled to expenses inclusive of attorney’s fees. You would think this rule is designed to motivate a party to truly admit a fact versus denying a fact to avoid the stipulation. But, not so fast…

In a recent case, R.J. Reynolds Tobacco Co. v. Ward, 43 Fla.L.Weekly D252b (Fla. 1st DCA 2018), the court awarded the requester $981,116.23 in attorney’s fees and costs under this rule by proving the truth of the matter of the recipient’s denials to requests for admissions. The appellate court, however, reversed maintaining that if the recipient has a good reason to deny the request, such fees and costs cannot be awarded.  For instance, if the recipient denies a hotly contested fact in the case and is later proved wrong, fees and costs cannot be awarded under this rule because the recipient had a good reason to deny the request.

There really is not a bright line standard as to what constitutes a good reason to deny and what does not, potentially watering down the sanction for a party’s denial of a fact. Nevertheless, this rule is not designed to shift fees and costs to the recipient simply because the party does not stipulate to a contested fact.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Tags: , , , ,

Quick Note: Order Denying Attorney’s Fees Reviewed De Novo

Posted by David Adelstein on December 17, 2017
Appeal / Comments Off on Quick Note: Order Denying Attorney’s Fees Reviewed De Novo

An order denying a motion for attorney’s fees is generally reviewed under a de novo standard of appellate review.  In a recent case I wrote about dealing with a coverage dispute between an insured and a property insurer, both the insured and insurer moved for attorney’s fees after the jury’s verdict.  

In this case, the insured moved for attorney’s fees pursuant to statute — Florida Statute s. 627.428.  The trial court denied the insured’s motion.  The insurer moved for attorney’s fees pursuant to a proposal for settlement / offer of judgment it served under Florida Statute s. 768.79.  The trial court denied the insurer’s motion too.  Both orders were appealed and reviewed by the appellate court under a de novo standard of appellate review.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

Tags: , ,

Contact Me Now

Prove YOUR Case!

Contact:

David Adelstein ♦

(954) 361-4720 ♦

dadelstein@gmail.com