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ProveMyFloridaCase.com > Posts tagged "attorneys’ fees"

Petition for Writ of Mandamus – Directing Trial Court to Take Action

“To be entitled to mandamus relief, the petitioner must demonstrate a clear legal right to the performance of a ministerial duty.”  “A ministerial duty is one where there is no room for the exercise of discretion, and the performance being required is directed by law.”  Further, “[a] writ of mandamus may issue to require a timely ruling on a matter pending before a lower tribunal.”  If an appellate court issues a writ of mandamus, it merely “directs the trial court to take action, but does not decide the merits.”  Griffin Windows and Doors, LLC v. Pomeroy, 47 Fla.L.Weekly D2013b (Fla. 3d...

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Dismissal Without Prejudice does NOT Trigger Attorney’s Fees under Proposal for Settlements

When it comes to proposal for settlements from a defendant, there is both good news and bad news.  If a defendant serves a proposal for settlement, and the case is dismissed without prejudice, the good news is that the defendant is dismissed.  The bad news is that the dismissal without prejudice will NOT trigger the defendant’s right to obtain attorney’s fees pursuant to the proposal for settlement. In Annesser v. Innovative Service Technology Management Services Inc., 47 Fla.L.Weekly D1738a (Fla. 3d DCA 2022), a defendant served a proposal for settlement after being served with the complaint. The defendant moved to dismiss...

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You Cannot Intentionally Render Moot a Plaintiff’s Lawsuit

After a lawsuit is filed, a defendant cannot intentionally try to moot a plaintiff's lawsuit in its favor. This sentiment is shown in the case of The Collins Condominium Association, Inc. v. Riveiro, Fla.L.Weekly D1741b (Fla. 3d DCA 2022).  In this case, a condominium unit owner filed a lawsuit against his condominium association to stop the association from preventing him from  installing a safety barrier around the perimeter of his outdoor balcony.  In addition to filing a lawsuit, the unit owner also initiated administrative code enforcement proceedings against the association.  The association, thereafter, installed alarm devices on the sliding glass doors...

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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...

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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...

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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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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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Recovering Attorney’s Fees “Incurred” on Party’s Behalf

Simply because a defendant does not pay his/her/its own attorney's fees does not mean the defendant is not entitled to recover attorney’s fees incurred on his/her/its behalf.  That wouldn’t seem to make much sense since attorney's fees would have been incurred on the defendant’s behalf.  Who actually writes the check to pay the attorney's fees is really of no moment, right?   Therefore, do not bank your argument that another party will never be entitled to recover their fees because that other party did not personally pay for his/her/its own attorney's fees. This was the argument raised in Jain v. Buchanan...

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