Recovering Attorney’s Fees in Litigating the Amount of Attorney’s Fees

The expression “fees for fees” or “fees on fees” generally refers to a situation where a party is awarded their attorney’s fees for litigating the amount of attorney’s to be awarded.  Typically, litigating the amount of fees to be awarded to a prevailing party is not recoverable. Nazarova v. Nayfeld, 47 Fla. L. Weekly D1089B (Fla. 3d DCA 2022).

However, such fees can be awarded if the contract in which attorney’s fees is based includes applicable language or  is “broad enough to encompass fees incurred in litigating the amount of fees.”  Id. (internal quotation and citation omitted).

In Nazarova, the fee provision at issue provided, “In any lawsuit to enforce the Lease or under applicable law, the party in whose favor a judgment or decree has been rendered may recover its reasonable court costs including attorney’s fees from the non-prevailing party.” Language like this is a common prevailing party attorney’s fees provision in a contract.

The Third District Court of Appeal found that this language was not broad enough to cover “fees on fees:”  “This contractual language is simply not broad enough to encompass recovery of fees for litigating the amount of fees to be awarded, and thus the general rule, which prohibits an award of fees for fees, is applicable.”  Nazarova, supra.

Keep this in mind when drafting a contract or litigating attorney’s fees.  If you want “fees on fees,” include applicable language in the underlying contract.  Otherwise, unless the language is much broader than routine prevailing party attorney’s fees language, attorney’s fees incurred in litigating the amount of fees will not be recoverable.

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