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Contingency Fee Multiplier – Must Establish the Relevant Market Factor

Should a contingency fee multiplier be applied?   A recent case involving an architectural lien foreclose case explains the contingency fee multiplier standard. Initially, the trial court determines through an evidentiary hearing the reasonable attorney’s fees to be awarded to the prevailing party.  This is done by applying the lodestar method laid out in Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985). Impex Caribe Corp. v. Carl Levin, P.A., 47 Fla. L. Weekly D544a, n.1 (Fla. 3d DCA 2022) (“The trial court arrives at the lodestar amount by multiplying the number of reasonable hours expended by a reasonable hourly rate.”). Then,...

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Business Judgment Rule Designed to Shield Directors from Personal Liability

A recent case out of Florida’s Third District discussed the business judgment rule and ultra vires acts.   Of importance, the Third District held that the business judgment rule was not required to be raised as an affirmative defense.  Hence, the business judgment rule could be relied on notwithstanding a board/manager/director not raising it as an affirmative defense in a lawsuit asserted against them. The business judgment rule is a critical rule for anyone serving on a board to appreciate because it is designed to benefit them, i.e., to shield them for personal liability for their decisions.  Without such a rule, who...

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Ambiguity in Insurance Policy Interpreted in Favor of Insured

When it comes to insurance policies, it is important to consider: If the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and the other limiting coverage, the insurance policy is considered ambiguous.  Ambiguous policy provisions are interpreted in favor of the insured.  Security First Ins. Co. v. Vazquez, 47 Fla. L. Weekly D487b (Fla. 5th DCA 2022). Vazquez exemplifies an ambiguous insurance provision interpreted in favor of the insured. Here, the property insurance policy contained an endorsement with a $10,000 sublimit for, “Sudden and accidental direct physical loss to covered property by discharge of overflow of water or...

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Pure Bill of Discovery – NOT for Purposes of Fishing Expedition

In unique and limited equitable circumstances, a party can file a lawsuit for what is referred to as a pure bill of discovery. “In the absence of an adequate legal remedy, equity has long authorized a pure bill of discovery as an appropriate remedy to obtain information such as the identity of a proper party defendant or the appropriate legal theory for relief.”  A bill of discovery may also be used “to obtain information necessary for meeting a condition precedent to filing suit.”  However, this Court has made clear that a pure bill of discovery does not lie “to substantiate one's...

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Partition Action does Not Result in Money Damages Against a Party

A partition action is an action under Florida Statutes Chapter 64.   “A partition action commences a legal proceeding to divide cotenants' interests in a real property.”  Morrison v. Smolarick, 47 Fla.L.Weekly D307a (Fla. 2d DCA 2022). In a nutshell, the objective is to sell the property and then determine how the proceeds are shared between the parties.  The Morrison Court explained: After the sale, “the court impounds the fund consisting of the proceeds of sale and conducts proceedings to establish the credits due to the parties and to determine the final amount awarded to each.” McFall v. Trubey, 992 So. 2d 867, 870...

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Consider Prevailing Party Attorney’s Fees before Voluntarily Dismissing Case

Here is an important thing to note:  do NOT just voluntarily dismiss a lawsuit where there is a basis for attorney’s fees because you could be liable for the other party’s fees.  This was the unfortunate circumstance in Catamaran B.Y., Inc. v. Giordano, 47 Fla.L.Weekly D179a (Fla. 3d DCA 2022).  This is an unfortunate circumstance you absolutely want to avoid. In this case, a plaintiff voluntarily dismissed his lawsuit against the defendant without prejudice.  The defendant then moved for attorney’s fees based on a contractual attorney's fees provision between the parties. The trial court denied the defendant's motion for attorney’s fees...

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Confession of Judgment does Not Start the Clock to File Motion for Attorney’s Fees

There are times a party rightfully moves to strike another party’s motion for attorney’s fees for being untimely. There are other times a party may try to create a “gotcha” moment to catch a party off guard to create a strategic argument that the motion for attorney’s fees was untimely.   The latter is the scenario in the insurance coverage case discussed below. 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...

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Quick Note: Motion for Protective Order Reviewed Under Abuse of Discretion Standard of Review

The ruling on a motion for protective order is reviewed for abuse of discretion.  An abuse of discretion occurs where the trial court's ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence. Buzby v. Turtle Rock Community Association, Inc., 47 Fla. L. Weekly D99a (Fla. 2d DCA 2022) (internal quotations and citations omitted). In this case, discussed further here, an attorney being deposed on his own attorney’s fees moved for a protective order claiming he was entitled to be paid for his time as an expert witness.  The trial court found the...

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There are NO Magic Buzz Words to Effectuate an Assignment

A recent case dealing with homeowner's associations’ declaration of covenants finds that there are NO magic buzz words when it comes to assigning contractual rights: “All contractual rights are assignable unless the contract prohibits assignment, the contract involves obligations of a personal nature, or public policy dictates against assignment.” … Furthermore, “it is the general rule that no particular words of art are necessary to effect” an assignment.  “The assignment or endorsement of any instrument vests the assignee or endorsee with the same rights, powers, and capacities as were possessed by the assignor or endorser. The assignee or endorsee may bring action thereon.”...

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Enforceability of a Himalaya Clause

A “Himalaya” clause.  I just learned what this type of provision is called.  A Himalaya clause attempts to extend limitation of liability provisions including forum selection provisions to persons other than the contracting party.  Aquachile, Inc. v. Williams, 47 Fla. L. Weekly D30c (Fla. 4th DCA 2021). Regarding a Himalaya clause’s enforceability: Himalaya clauses are construed, according to general principles of contract interpretation, “by their terms and consistent with the intent of the parties.”  The court must determine whether the plain language of the contract as a whole reflects an intent to extend limitations of liability to the party seeking protection.  Any...

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