08 February

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Mutuality of Obligation under Florida Statute 57.105(7)

Florida Statute s. 57.105(7) provides: “If a contract contains a provision allowing attorney's fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney's fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.” Fla. Stat. s. 57.105(7). Parties argue this subsection (7) to create a reciprocal basis for attorney’s fees under the argument “mutuality of obligation.” A recent case dealt with attorney’s fees being awarded under s. 57.105(7) under a law firm retainer agreement. Fees...

24 January

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Don’t Create an Attorney’s Fees Waiver Argument

Posted by David Adelstein

in Trial Perspectives

Here’s a situation you’d like to avoid because it creates an unnecessary waiver argument with respect to attorney’s fees. In a dispute between a condominium association and unit owner, the unit owner sued his association for injunctive relief, negligence, and breach of contract. The parties entered an agreed order on the unit owner’s injunctive relief claim against the association, and identified the unit owner as the prevailing party. The parties then entered an agreed order that granted the unit owner entitlement to fees and an evidentiary was held on the fees. The trial court entered a judgment as to the attorney's...

16 November

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A Party Cannot Use Indemnity Clause to Create Basis for Attorney’s Fees Unless Clause Clearly Expresses that Intent

Posted by David Adelstein

in Trial Perspectives

In a recent case (discussed here) a party moved for attorney’s fees under an indemnification provision. The party claiming attorney’s fees was the indemnitor (party giving the indemnification) claiming that it should be entitled to attorney’s fees based on Florida Statute 57.105(7) which allows the trial court to award attorney's fees in a reciprocal manner. The problem, however, was the case had nothing to do with indemnity, which is really when a claim is made against you (an indemnitee) by a third party and you are looking to pass that claim through to the indemnitor. While the trial court granted...

08 November

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Proposal for Settlement / Offer of Judgment does NOT Apply to Claims where Equitable Relief is also Sought

Posted by David Adelstein

in Trial Perspectives

A recent case confirms that the proposal for settlement / offer of judgment statute does not apply where claims for equitable relief are also sought. It only applies to claims for monetary relief. This means, strategically, there may be a reason why you should or should not assert a claim for equitable relief if the proposal for settlement / offer of judgment statute is otherwise the only basis to recover attorney’s fees. The claim for equitable relief would put a damper in the enforceability of any proposal for settlement / offer of judgment. In Cornelius v. Haywood, 50 Fla.L.Weekly D2250a (Fla....

13 June

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Fees for Fees – Be Specific in Your Contract

Posted by David Adelstein

in Trial Perspectives

Attorney's fees are a creature of contract or statute. Regarding your contract, if you want attorney's fees for litigating the amount associated with an award granting you entitlement to attorney's fees (a concept known as "fees for fees"), you need to make sure contract is broad enought to cover the award of these fees. Otherwise, these attorney's fees will not be recovered. In a recent appeal, Isbell v. Bohrer, 50 Fla.L.Weekly D1267a (Fla. 4th DCA 2025), an attorney's fees provision read, "Should any litigation or legal proceeding be required by either party for the enforcement of this Agreement, the prevailing party...

04 May

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There can be Consequences when Voluntarily Dismissing Lawsuit

Posted by David Adelstein

in Trial Perspectives

There can be consequences when you voluntarily dismiss a lawsuit simply because you don’t want to deal with the claim anymore. Or, you realize there are problems with your claim. Such consequences can arise if there is a basis for the prevailing party to recover attorney’s fees. Thus, don’t think you can just voluntarily dismiss your case without dealing with attorney’s fees. These are consequences you may need to deal with if you want to voluntarily dismiss your lawsuit. “The general rule is that when a plaintiff voluntarily dismisses an action, the defendant is the ‘prevailing party' within the meaning of...

25 February

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Attorney’s Fee Awards

Posted by David Adelstein

in Evidence, Expert Testimony

Attorney's fee awards can be frustrating. The reason being is the award is based on a mini-bench-trial after the trial aimed at determining reasonableness of the attorney’s fees. An expert, i.e., another lawyer, is required to opine as to the reasonableness of the attorney’s fees. Fees are not just rubberstamped and banking on recovering 100% of the attorney’s fees incurred is probably not realistic. In fact, you should not “bank” on that mindset when determining whether to settle the attorney’s fees or the dispute. A recent case, Kovar Law Group, PLLC v. Jordan, 49 Fla.L.Weekly D431a (Fla. 2d DCA 2024), touches...

07 January

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Attorney’s Fees only Flow to Plaintiff-Payee in Statutory Worthless Check Claim

Posted by David Adelstein

in Trial Perspectives

Florida Statute s. 68.065 is Florida’s worthless check statute – it creates a statutory cause of action against the payor of the worthless check. It further provides a statutory basis for attorney’s fees to the plaintiff-payee that prevails on the worthless check claim. Fla.Stat. s. 68.065(6) (“Other provisions notwithstanding, the maker or drawer is liable to the payee for all attorney fees and collection costs incurred by payee as a result of the payee’s claim.”). Well, what if the payee loses and the defendant-payor prevails on the worthless check claim – does the defendant get attorney’s fees? This was the...

11 June

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Draft Agreements with Clarity or…

Posted by David Adelstein

in Appeal

If you ever want to know why a contract or any agreement should be clearly written, here is the reason. In a recent case, 41 Acquisition Holdings, LLC v. Haff, 48 Fla.L.Weekly D1127a (Fla. 3d DCA 2023), the settlement agreement contained the following language: The court shall retain jurisdiction to enforce this agreement and, an enforcement action or motion, if any, shall be made by the party claiming a breach against the party alleged to have committed the breach and shall not affect any party who is not alleged to have breach this agreement and the prevailing party in any enforcement...

05 March

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Attorney’s Fee as an Element of Compensatory Damages

Posted by David Adelstein

in Trial Perspectives

When attorney’s fees are being sought as an element of compensatory damages, there is NO requirement for an expert to opine as to the reasonableness of the attorney’s fees. Rodriguez v. Altomare, 261 So.3d 590, 592 (Fla. 4th DCA 2018). “If, however, a party is seeking to recover previously incurred attorney’s fees as an element of compensatory damages in a separate breach of contract action, that party is not required to provide an independent expert witness to corroborate the reasonableness of the fees.” Id. See also Sea World of Florida, Inc. v. Ace American Ins. Companies, Inc., 28 So.3d 158,...

attorneys’ fees Tag