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.
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