12 February

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Reasonable Attorney’s Fee Hearing – Does Attorney Need to Testify at Hearing

Does an attorney at the law firm performing the work need to testify at an evidentiary attorney’s fees hearing to support the reasonableness of the rate and number of hours? Seems like an attorney at the law firm seeking to recover attorney’s fees would absolutely testify, right? Who better to speak about the work performed, number of hours expended, and the reasonableness of the rate than an attorney at the law firm performing the work. Interestingly enough, this was the issue decided by Florida’s new 6th District Court of Appeal in CED Capital Holdings 2000 EB, LLC v. CTCW-Berkshire Club,...

21 January

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Voluntarily Dismissing a Lawsuit that Gives Rise to Attorney’s Fees (Oh No!)

Posted by David Adelstein

in Trial Perspectives

When you plead a cause of action that triggers a basis for attorney’s fees (i.e., a statutory basis or contractual basis), you can also give the other side a strong argument that they are entitled to attorney’s fees if you voluntarily dismiss your lawsuit. This kind of operates under the “be careful what you ask for” scenario. An “Oh No!” moment. This was the scenario in Ward v. Estate of Lillian K. Wasserman, 48 Fla.L.Weekly D96c (Fla. 4th DCA 2022). The plaintiff filed a lawsuit predicated on Florida’s civil theft statute (Fla. Stat. s. 772.11) that gives a basis for statutory...

08 October

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

Posted by David Adelstein

in Appeal, Trial Perspectives

“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...

17 September

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

Posted by David Adelstein

in Trial Perspectives

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...

27 August

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You Cannot Intentionally Render Moot a Plaintiff’s Lawsuit

Posted by David Adelstein

in Trial Perspectives

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...

21 May

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Recovering Attorney’s Fees in Litigating the Amount of Attorney’s Fees

Posted by David Adelstein

in Trial Perspectives

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...

03 April

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Attorney’s Fees to Prevailing Party Under FDUTPA Claim are PERMISSIVE

Posted by David Adelstein

in Appeal, Standard of Review, Trial Perspectives

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...

06 March

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Contingency Fee Multiplier – Must Establish the Relevant Market Factor

Posted by David Adelstein

in Trial Perspectives

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,...

22 January

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Consider Prevailing Party Attorney’s Fees before Voluntarily Dismissing Case

Posted by David Adelstein

in Trial Perspectives

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...

15 January

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

Posted by David Adelstein

in Trial Perspectives

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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