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ProveMyFloridaCase.com > Posts tagged "attorneys’ fees"

Calculating the Judgment Obtained in Determining Proposals for Settlement

There are numerous prior postings discussing proposals for settlement / offers of judgment.  As discussed, they create an argument to recover attorney’s fees from the date of the proposal on forward.  A recent case discusses the thorny issues of determining whether the “judgment obtained” by the plaintiff meets the threshold to recover attorney’s fees when serving a proposal for settlement under Florida Statute s. 768.79. In this case, the plaintiff served a proposal for settlement on March 21, 2019. The defendant did not accept the proposal.  The case proceeded to trial and the jury returned a verdict in favor of the...

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There can be a Winner for Prevailing Party Attorney’s Fees when Both Parties Lose

From reviewing prior articles on attorney’s fees, you know that to be deemed the prevailing party for purposes of attorney’s fees, particularly under a contractual based claim, a party needs to prevail on the significant issues in the case. What if a plaintiff has asserted a claim against a defendant and a defendant has a asserted a claim against the plaintiff and both parties LOSE on their affirmative claims?  Can a party still be deemed to prevail on the significant issues in the case?  That answer is yes based on the holding by the Second District Court of Appeals in Carrollwood...

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Attorney’s Fees and the “American Rule”

Not every cause of action asserted gives rise to an argument to recover attorney’s fees.  Florida follows what is known as the “American Rule” which is “attorney’s fees may be awarded by a court only when authorized by statute or agreement of the parties.”  State Farm Fire & Casualty Co v. Palma., 629 So.2d 830, 833 (Fla. 1993); Bank of New York Mellon Trust Co., N.A. v. Fitzgerald, 215 So.3d 116, 119 (Fla. 3d DCA 2017) (“It is well-established that attorney’s fees may not be awarded unless authorized by contract or statute.”); accord Attorney’s Title Ins. Fund, Inc., v. Landa-Posada,...

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Proposals for Settlements and Attaching Releases

I have discussed proposals for settlement (also known as offers of judgment) in a number of prior articles.  A proposal for settlement is a procedural vehicle used to facilitate a settlement and create a basis to recover attorney’s fees from the date of the proposal on forward if the proposal for settlement is not accepted and the net judgment comes within a certain amount.  Serving a proposal for settlement, and the strategic timing if one is served, should be discussed with your counsel.  It should also be discussed with counsel the pros and cons of rejecting a proposal for settlement...

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Proposals for Settlement and Dismissals WITHOUT PREJUDICE

I have talked about proposals for settlement in a number of prior postings.  (See here, here, and here for a few of these postings.). Proposals for settlement are a vehicle to create an argument for attorney’s fees under Florida Rule of Civil Procedure 1.442 and Florida Statute s. 768.79.  A party receiving a proposal for settlement has 30 days to accept the proposal.  If they do not, it triggers an argument to recover attorney’s fees from the date of the proposal for settlement on forward based on the amount of the recovered judgment. However, Florida cases have held that even if...

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Just because You Recovered an Affirmative Judgment does NOT Mean you Are the Prevailing Party for Purposes of Attorney’s Fees

The prevailing party in a litigation for purposes of being awarded attorney's fees is NOT determined by how the money flows at the conclusion of the litigation. In other words, just because you recovered an affirmative judgment does NOT mean you are the prevailing party for purposes of being entitled to attorney's fees. See Skylink Jets, Inc. v. Klukan, 45 Fla.L.Weekly D2829a (Fla. 4th DCA 2020). To be the prevailing party for purposes of being entitled to attorney's fees, a party must have prevailed on the significant issues in the litigation. Id. And a trial court has broad discretion to...

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Reasonable Attorneys’ Fees’ Expert when Attorney’s Fees are the Damages

Generally, when an attorney is. awarded attorney's fees, there is a mini-evidentiary hearing to determine the "reasonableness" of those fees.  Another lawyer--the reasonable attorneys' fees' expert--opines that the rate and hours expended are reasonable.  The opposing party then has its own expert to opine otherwise. Fairly archaic and ridiculous in my opinion.  Others may disagree. Nevertheless, the reasonable fees' expert is how it is done with another attorney testifying that the fees incurred by the prevailing lawyer were "reasonable" fees.  What if  fees are the actual damages? In a recent case, Law Offices of Granoff & Kessler, P.A. v. Glass, 45 Fla. L....

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Attorney’s Fees on Attorney’s Fees

Can I recover my attorney’s fees for litigating the reasonable amount of attorney’s fees I should be entitled to for prevailing in my lawsuit?  This concept is known as “fees on fees.”  It depends. Generally, [i]t is settled that in litigating over attorney’[s] fees, a litigant may claim fees where entitlement is the issue, but may not claim attorney’s fees incurred in litigating the amount of attorney’s fees.  Nonetheless, certain contractual provisions are sufficiently broad to warrant an exception. The Burton Family Partnership v. Luani Plaza, Inc., 44 Fla. L. Weekly D1720c (Fla. 3d DCA 2019) (internal quotations and citations omitted) (finding bylaws created...

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Two Proposal for Settlement Considerations

A proposal for settlement is a vehicle used to create an argument for the recovery of attorney’s fees from the date the proposal is served on forward if the opposing party does not accept the proposal within 30 days.  In certain circumstances, such as when there is there is no basis to recover attorney’s fees, it can be a useful vehicle to create an argument to recover attorney's fees.   There are also strategic reasons to serve a proposal for settlement at a certain point in time in the litigation.  There are definitely strategic issues that must be considered when serving...

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Mutuality of Obligation when it comes to Contractual Attorney’s Fees

The recovery of attorney’s fees is a creature of contract or statute.  When a party prays for attorney’s fees in a lawsuit, that prayer for relief is based on a contractual basis or a statutory basis to attorney's fees.  Sometimes, contracts include one-way prevailing party attorney’s fees.  In other words, the contract may provide that if one party (typically, the drafter of the contract) has to enforce the contract, the other party has to pay that party’s attorney’s fees and costs.  But, what if the other party has to enforce the contract or prevails in the other party's enforcement action.  ...

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