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Attorney’s Fees to Prevailing Party Under FDUTPA Claim are PERMISSIVE

In a Florida Deceptive and Unfair Trade Practices Act (known as FDUTPA) claim, a claimant will seek attorney’s fees under Florida Statute s. 501.2015(1).  However, this statute uses the permissive word, “may” when it comes to awarding attorney’s fees to the prevailing party.  With the use of such a permissive word, the trial court has discretion to award or not award attorney’s fees to the prevailing party.  Stated differently, the award of attorney’s fees is not mandatory.

In an older case, Humane Society of Broward County, Inc. v. Florida Humane Society, 951 So.2d 966 (Fla. 4th DCA 2007), the appellate court discussed factors for the trial court to consider in exercising its discretion to award prevailing party attorney’s fees.  This case, and particularly the factors to consider, was discussed by the 2022 case, Forte v. All County Towing, Inc., 47 Fla.L.Weekly D704a (Fla. 4th DCA 2022):

In exercising its discretion [to award FDUTPA attorney’s fees], factors that a trial court might consider include, but are not limited to:

(1) the scope and history of the litigation;

(2) the ability of the opposing party to satisfy an award of fees;

(3) whether an award of fees against the opposing party would deter others from acting in similar circumstances;

(4) the merits of the respective positions — including the degree of the opposing party’s culpability or bad faith;

(5) whether the claim brought was not in subjective bad faith but frivolous, unreasonable, groundless;

(6) whether the defense raised a defense mainly to frustrate or stall; [and]

(7) whether the claim brought was to resolve a significant legal question under FDUTPA law.

Forte, supra (quoting Humane Society, 951 So.2d at 971-72).

On another note, the Forte Court explained the standard of review regarding entitlement to attorney’s fees and the quantum awarded by the court (typically after an evidentiary hearing as to reasonable attorney’s fees). The following is good-to-know:

The standard of review of a trial court’s ruling on the issue of entitlement to prevailing party attorney’s fees is abuse of discretion.” Skylink Jets, Inc. v. Klukan, 308 So. 3d 1048, 1051 (Fla. 4th DCA 2020). An award of attorney’s fees will be upheld on appeal so long as it is supported by competent, substantial evidence. Freiman v. Nat’l City Mortg. Co., 183 So. 3d 1111, 1112 (Fla. 4th DCA 2015).

Forte, supra.

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.


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