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

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...

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...

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...

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...

25 April

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

Posted by David Adelstein

in Trial Perspectives

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...

19 December

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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

Posted by David Adelstein

in Trial Perspectives

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...

26 April

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Prevailing Party in Civil Action Entitled to Recover Costs

Posted by David Adelstein

in Trial Perspectives

A party prevailing in a civil action is entitled to recover their costs. Fla. Stat. s. 57.041(1) (“The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment….”). Florida Rule of Civil Procedure 1.525 provides that a “party seeking a judgment taxing costs…shall serve a motion no later than 30 days after filing of the judgment….”). Check out this article to understand the type of taxable costs a prevailing party in a civil action is entitled. A prevailing party’s counsel moving to recover legal costs does not need to verify the...

14 April

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Litigating the Amount of Contractual Attorney’s Fees

Posted by David Adelstein

in Trial Perspectives

Recovering attorney’s fees is a vital component of many claims. Parties that have a contractual or statutory basis to recover attorney’s fees want to know they will get a judgment for reasonable attorney’s fees if they prevail in the underlying action. There is authority that when parties seek fees pursuant to a statute, they are not entitled to fees associated with litigating the amount of fees. See State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830 (Fla. 1993). What about if a party seeks fees pursuant to a contract? Can the party recover attorney’s fees associated with litigating the amount of...

03 November

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Prevailing Party for Purposes of Attorney’s Fees in Breach of Contract Claims

Posted by David Adelstein

in Trial Perspectives

To be entitled to attorney’s fees, there needs to be a contractual or statutory basis to recover attorney’s fees (absent serving a proposal for settlement). There is oftentimes the misconception in breach of contract cases that the party that recovers a positive net judgment will automatically recover their attorney’s fees. While, certainly, sometimes this is the case, this is NOT what you should be banking on. The law has tried to progress to a point where it does not want certain cases to be driven solely by the prospect of recovering attorney’s fees just because you won $1. The Florida Supreme Court in Moritz v....

16 October

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Proposals for Settlement when there is a Contractual or Statutory Basis for Attorney’s Fees

Posted by David Adelstein

in Trial Perspectives

In an earlier posting I talked about proposals for settlement / offers of judgment. Again, these are used as a vehicle to create an argument for attorney’s fees down the road, particularly in cases where a party does not have a contractual or statutory basis to recover attorney’s fees. Please check out this article for more information on proposals for settlement because they have become an unnecessarily complicated vehicle with nuances that have resulted in an exorbitant amount of case law. As a result, while the argument to recover fees is preserved by serving the proposal for settlement, it is...

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