attorneys’ fees

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.

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Attorney’s Fee Arrangements can be Creative or Innovative

Posted by David Adelstein on April 13, 2018
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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.

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Requests for Admissions as a Discovery Tool

Posted by David Adelstein on January 30, 2018
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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.

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

Posted by David Adelstein on December 17, 2017
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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.

 

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The Contingency Fee Multiplier is NOT just for the Rare and Exceptional Dispute

Posted by David Adelstein on October 19, 2017
Trial Perspectives / Comments Off on The Contingency Fee Multiplier is NOT just for the Rare and Exceptional Dispute

In a great victory for those handling difficult contingency fee disputes (particularly contingency fee disputes dealing with economic damages, such as me), the Florida Supreme Court held that the contingency fee multiplier is not to be applied only in the rare and exceptional case. Oh no! Had the Court entered such a ruling, this would have virtually eliminated the application of the contingency fee multiplier. Boo!  This multiplier is important as it incentivizes those attorneys that handle difficult contingency fee cases by adding a multiplier on the reasonably determined attorney’s fees. (For example, if the Court determines that an attorney’s reasonable attorney’s fees are $35,000, the Court can order a multiplier of 2, meaning the attorney’s fees would be $70,000). As they say, with risk comes reward!

In what I think to be noteworthy language regarding the contingency fee multiplier, the Court pronounced:

[T]he contingency fee multiplier provides trial courts with the flexibility to ensure that lawyers, who take a difficult case on a contingency fee basis, are adequately compensated. We also do not agree that the contingency fee multiplier encourages “nonmeritorious claims” and would, instead, posit that solely because a case is “difficult” or “complicated” does not mean that the case is nonmeritorious. Indeed, without the option of a contingency fee multiplier, those with difficult and complicated cases will likely be unable or find it difficult to obtain counsel willing to represent them.

***

The point being, the lodestar amount, which awards an attorney for the work performed on the case, is properly analyzed through the hindsight of the actual outcome of the case, whereas the contingency fee multiplier, which is intended to incentivize the attorney to take a potentially difficult or complex case, is properly analyzed through the same lens as the attorney when making the decision to take the case. We disagree that the possibility of receiving a contingency fee multiplier leads to a “windfall.” … While the attorney for the insurer charges and receives an hourly rate regardless of whether the defense is successful, the insured’s attorney bears the risk of never being compensated for the number of hours spent litigating the case. This risk, among other factors, is what entitles the attorney to seek, and the trial court to consider, the application of a contingency fee multiplier.

Joyce v. Federated National Ins. Co., 42 Fla.L.Weekly S852a (Fla. 2017).

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.

 

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Timely Move for Appellate Attorney’s Fees (if You have a Basis!)

Posted by David Adelstein on June 25, 2017
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Moving for appellate attorney’s fees? If you do, make sure you TIMELY file a motion!  Appeals take time…in many instances, lots of time…and if there is a basis to recover attorney’s fees, you want to make sure a motion is timely filed and supported by a contractual or statutory basis.

Florida Rule of Appellate Procedure 9.400 governs appellate costs and fees.   This Rule provides:

(a) Costs. Costs shall be taxed in favor of the prevailing party unless the court orders otherwise. Taxable costs shall include

(1) fees for filing and service of process;

(2) charges for preparation of the record and any hearing or trial transcripts necessary to determine the proceeding;

(3) bond premiums; and

(4) other costs permitted by law.

Costs shall be taxed by the lower tribunal on a motion served no later than 45 days after rendition of the court’s order. If an order is entered either staying the issuance of or recalling a mandate, the lower tribunal is prohibited from taking any further action on costs pending the issuance of a mandate or further order of the court.

(b) Attorneys’ Fees. With the exception of motions filed pursuant to rule 9.410(b), a motion for attorneys’ fees shall state the grounds on which recovery is sought and shall be served not later than:

(1) in appeals, the time for service of the reply brief; or

(2) in original proceedings, the time for service of the petitioner’s reply to the response to the petition.

The assessment of attorneys’ fees may be remanded to the lower tribunal. If attorneys’ fees are assessed by the court, the lower tribunal may enforce payment.

(c) Review. Review of orders rendered by the lower tribunal under this rule shall be by motion filed in the court within 30 days of rendition.

The entitlement to attorney’s fees must be supported by a statutory or contractual basis. State, Dept. of Highway Safety and Motor Vehicles v. Trauth, 971 So.2d 906, 908 (Fla. 3d DCA 2007).   It is incumbent on a party to timely file a motion for appellate attorney’s fees if they want to recover attorney’s fees relating to the appeal.  An appellate court has jurisdiction to award appellate attorney’s fees. Bartow HMA, LLC v. Kirkland, 146 So.3d 1213, 1215 (Fla. 2d DCA 2014).   “Once the appellate court determines that an award of appellate attorney’s fees is appropriate, a mandate is issued to the trial court to impose the fees after conducting a hearing. Absent a mandate, the trial court has no jurisdiction to award appellate attorney’s fees.” Respiratory Care Services, Inc. v. Murray D. Shear, P.A., 715 So.2d 1054, 1056 (Fla. 5th DCA 1998).

 

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.

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Litigating the Amount of Contractual Attorney’s Fees

Posted by David Adelstein on April 14, 2017
Trial Perspectives / Comments Off on Litigating the Amount of Contractual Attorney’s Fees

Recovering attorney’s fees is a vital component of many claims. Parties that have a contractual or statutory basis to recover attorney’s fees want to know they will get a judgment for reasonable attorney’s fees if they prevail in the underlying action.   This oftentimes results in litigating the amount of fees.

There is authority that when parties seek fees pursuant to a statute, they are not entitled to fees associated with litigating the amount of fees. See State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830 (Fla. 1993).

What about if a party seeks fees pursuant to a contract? Can the party recover attorney’s fees associated with litigating the amount of contractual fees?  The answer is it depends on the contractual attorney’s fees provision. The broader the scope the greater the chance a party will be entitled to attorney’s fees for litigating the amount of contractual fees owed to the prevailing party.

In Trial Practices, Inc. v. Hahn Loeser & Parks, LLP, 42 Fla.L.Weekly D848a (Fla. 2d DCA 2017), the Second District addressed whether a prevailing party is entitled to recover contractual attorney’s fees associated with litigating the amount of reasonable attorney’s fees.   The Court held yes based on the scope of the contractual attorney’s fees provision since contracting parties are free to contract on the scope and issue of attorney’s fees.

The provision at-issue read in material part:

…prevailing party in any action arising from or relating to this agreement will be entitled to recover all expenses of any nature incurred in any way in connection with the matter, whether incurred before litigation, during litigation, in an appeal, . . . or in connection with enforcement of a judgment, including, but not limited to, attorneys’ and experts’ fees.

The court held that this language in the attorney’s fees provision was broad enough to encompass fees associated with litigating the amount of fees.

Remember, contracting parties are fee to negotiate and contract on the issue of attorney’s fees.  Based on the provision, a prevailing party will be entitled to attorney’s fees for litigating the amount of fees.  This perhaps may make a party think twice regarding litigating the amount of contractual fees if the issue can get resolved without an evidentiary proceeding on the amount. 

 

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.

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Innovative or Alternative Fees Can be a Win-Win!

Posted by David Adelstein on February 18, 2017
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What is the traditional model of lawyering?  Simply put, it is hourly billing.  There is nothing wrong with this model; however, there are other alternative or innovative attorney’s fee models out there that factor in performance, results, and efficiency.  These are models that incentivize performance which is always in a client’s best interest.  Stepping out of a comfort zone is tough considering we are all creatures of habit.  But, there are instances where trying something innovative or alternative is a win-win for you from a budgetary standpoint and, importantly, a results standpoint.  If you are interested in learning more about attorney’s fee models that may benefit your interests, check out the below chart and feel free to contact me.

 

Download (PDF, 273KB)

 

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.

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Timely Filing Motion for Attorney’s Fees and Costs

Posted by David Adelstein on February 11, 2017
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Florida Rule of Civil Procedure 1.525 provides:

Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal, which judgment or notice concludes the action as to that party.

This is a specific statutory time period and a motion for rehearing does NOT toll this 30 day period. Jackson v. Anthony, 39 So.3d 1285, 1286 (Fla. 1st DCA 2010). This means that a motion for a final judgment taxing attorney’s fees and costs must be made within 30 days after the filing of a judgment or voluntary dismissal that concludes the action as to that party. (A court in certain circumstances may grant an extension of time to this 30 day period if the motion for extension is filed within 30 days).   Not timely filing a motion for attorney’s fees and costs can result in…(you guessed it)…a loss of a party’s right to recover attorney’s fees and costs.

In Hovercraft of South Florida, LLC v. Reynolds, 42 Fla. L Weekly D367a (Fla. 5th DCA 2017), the plaintiffs prevailed and received a final judgment. The defendant moved for a new trial and/or rehearing which was denied.   Within 30 days of the denial of the defendant’s motion for rehearing, but well outside the 30 days from when the final judgment was entered, the plaintiffs moved for attorney’s fees and costs. However, the motion for attorney’s fees was not timely filed within 30 days of the filing of the final judgment meaning…(you guessed it again)…the plaintiff’s lost the right to recover their attorney’s fees and costs!!!  Do not let this happen to you.  

Notably, an exception to this 30 day requirement is if the final judgment itself determines entitlement to attorney’s fees reserving only the right to determine the quantum of the reasonable attorney’s fees.   Hovercraft of South Florida, supra (“In order to avoid the thirty-day requirement, the judgment itself must determine entitlement to attorney’s fees and costs and reserve jurisdiction only as to the amount owed.”) Notwithstanding this exception, file the motion for attorney’s fees and costs within 30 days — no excuses.

 

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.

 

 

 

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Appealing Entitlement to Attorney’s Fees

Posted by David Adelstein on January 08, 2017
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After a party prevails in a lawsuit, the next issue to consider is attorney’s fees, and this is oftentimes a driving issue because attorney’s fees can be fairly significant depending on the nature of the dispute. For example, assume you lost a trial and the other side moved for attorney’s fees. You challenged entitlement to attorney’s fees and lost – the trial court granted the other side’s motion for attorney’s fees. An evidentiary hearing was held and an attorney’s fees judgment was entered. Alternatively, assume you moved for attorney’s fees and the trial court denied your motion. Are these issues relating to entitlement to attorney’s fees appealable? Yes.

 

“‘A party’s entitlement to an award of attorney’s fees under a statute or procedural rule is a legal question subject to de novo review.’” Newman v. Guerra, 2017 WL 33702 (Fla. 4th DCA 2017) quoting Nathanson v. Morelli, 169 So.3d 259, 260 (Fla. 4th DCA 2015).

 

For instance, in a recent case, an owner established that a contractor’s lien was fraudulent. The contractor, however, prevailed in its breach of contract claim. The owner moved for his entitlement to statutory attorney’s fees since he prevailed in the contractor’s lien action. The trial court denied the owner’s motion for attorney’s fees because after considering all of the claims asserted in the case found that the contractor prevailed on the significant issues in the case. The owner appealed the trial court’s denial and this issue was subject to 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.

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