Recovery of Attorneys’ Fees – Part II: Key Considerations in Statutory Entitlement to Attorneys’ Fees

This blog post is part II in a series of blogs posts discussing the recovery of attorneys’ fees.  Part I explored some considerations in the recovery of attorneys’ fees when the recovery is by virtue of a contractual provision.  This second post in the series discusses those scenarios where a Florida state statute entitles litigants to reimbursement of prevailing party attorney’s fees.

There are many statutes that provide for an award of attorneys’ fees.  While certainly not exhaustive, here is a list of some of the commonly used Florida state statutes for the recovery of fees:

• Section 57.115, Florida Statutes: Execution on Judgments
• Section 59.46, Florida Statutes: Appeals
• Section 68.065, Florida Statutes: Dishonored Checks
• Section 77.28, Florida Statutes: Garnishment Actions
• Section 501.2105, Florida Statutes: FDUTPA
• Section 607.07401, Florida Statutes: Shareholder Derivative Actions
• Section 701.04, Florida Statutes: Failure to Satisfy Mortgage
• Section 713.29, Florida Statutes: Construction Liens

In comparison to the number of statutes that provide for the entitlement to attorneys’ fees, this list is comparatively short.  Regardless of which statute is utilized for a claim to fees, certain conditions must be met in every claim for attorneys’ fees.  First and foremost, the entitlement to fees is never automatic or guaranteed.  You may be suing under a statute that provides for an award of attorney’s fees and the court may clearly hand down a ruling in favor of your client, but if you never included the request for attorneys’ fees, you can say goodbye to any award of fees.

It is a long-standing rule that failure to request attorneys’ fees waives any entitlement to fees.  The request for fees should be in the initial pleading.  In Tunison v. Bank of America, 144 So. 3d 588 (Fla. 2d DCA 2014), the property owner moved to dismiss the bank’s mortgage foreclosure action, and thereafter, the lender dismissed its mortgage foreclosure action. The trial court denied the owner’s motion for attorneys’ fees because the fees were not requested in the motion to dismiss. The Second District Court of Appeal reversed because although the motion to dismiss did not include a request for attorneys’ fees, the owner did not waive his claim for attorneys’ fees.  A motion to dismiss is not a pleading and the owner in Tunison was never required to file an answer (or any other pleading) in response to the complaint.  Thus, there was no waiver of fees as the owner still had the opportunity to request an award for fees where no pleading had been filed.

Another common issue with pleading requirements and attorneys’ fees is the use of Florida Rule of Civil Procedure 1.442, proposals for settlement (also referred to as offers of judgment).  As this blog post generally covers issues with entitlement to attorneys’ fees, we will not delve into the specifics for proposals of settlements as the topic could consume its own series of blog posts.  Just to hit a few high points, one of the more recent cases concerning an offer of judgment was Diamond Aircraft Industries, Inc. v. Horowitch, 107 So. 3d 362 (Fla. 2013), where the Court found that the offer of judgment was defective because it did not specify whether the amount included attorneys’ fees and did not state whether the opposing party was claiming entitlement to fees.  The courts are going through the proposals for settlement with a fine-tooth comb.  Even something as discrete as failing to include a certificate of service on an offer of judgment may deem the offer of judgment defective.  Milton v. Reyes, 22 So. 3d 624 (Fla. 3d DCA 2009).  While these cases relate specifically to proposals for settlement/offers of judgment, they are vital reminders that courts strictly enforce the conditions for statutory entitlement to attorneys’ fees.

So let’s say you have made it to the end of the case and you have successfully persuaded the court to award attorneys’ fees.  The battle has been won and you get your fees, right? Not exactly.  How was your record-keeping?  Although the trial court may rule that you are entitled to attorneys’ fees, if there is no evidence to support the amount of fees, no fees will be awarded.  Booth v. Booth, 91 So. 3d 272 (Fla. 4th DCA 2012).  Even where you charged the client a flat rate, there must be a record of the hours spent on the case.  See Raza v. Deutsche Bank, 100 So. 3d 121 (Fla. 2d DCA 2012) (where the prevailing party under Section 57.105, Fla. Stat., charged a “flat rate” and there was no evidence of hours spent on the case, the court denied fees for lack of evidence).

Another issue related to the award of attorneys’ fees that arises after the resolution of the case is the timing of the motion for attorneys’ fees.  Under Florida Rule of Civil Procedure 1.525, any party seeking attorneys’ fees, costs, or both must serve a motion no later than thirty (30) days after filing a judgment.  Just as the issues mentioned above, the court is not lenient on this time requirement.  For example, in Borroto v. Garcia, 103 So. 3d 136 (Fla. 3d DCA 2012), the plaintiff was successful on an offer of judgment but because he filed his motion for attorneys’ fees approximately seventy-three (73) days after the final judgment, the court denied an award of fees.

The takeaway for practitioners is to ensure strict compliance with the pleading requirements for statutory entitlement to attorneys’ fees.  While this is easier said than done, far too many practitioners have taken for granted the extensive number of statutes that allow an award for attorneys’ fees and have essentially presumed that they will automatically receive an award of fees.  Stay tuned for Part III of this series for a discussion of common law exceptions to the general rule, discussing the recovery of fees when there is a lack of a contractual provision or fee-awarding statute.