Chapter 16-3 Procedures to Recover Attorney's Fees
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16-3 Procedures to Recover Attorney's Fees
16-3:1 Pleading Requirement
The Florida Supreme Court has made it clear that it is necessary for a party to plead any claim for attorney's fees for that party to recover its fees, and that failure to do so constitutes a waiver of the claim.24 Thus, it is critical that any claim for attorney's fees must be pled in the complaint or answer. However, the Supreme Court also held that if a party is on notice that an opponent claims entitlement to attorney's fees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement, that party waives any objection to the failure to plead a claim for attorney's fees.25 Failing to allege entitlement to attorney's fees in an answer or complaint may constitute a waiver of any claim for fees.26 There are some exceptions to the general pleading requirement. For example, a defendant who files a motion to dismiss, prior to filing any responsive pleading to the complaint, may be entitled to recover attorney's fees upon the dismissal of the action, if the defendant's motion for attorney's fees is otherwise timely filed.27 However, a party filing a "notice of intent to seek attorney's fees" in a deficiency action filed after completion of a foreclosure was not entitled to recover attorney's fees, as the notice was not a pleading and did not provide sufficient notice of the defendants' claim that they would seek to recover their fees.28 The effect of waiver can work against a plaintiff, too. A plaintiff's failure to raise the issue of the defendant's failure to plead entitlement to fees may constitute the waiver of the plaintiff's objection to such lack of pleading.29 Note that the specific statutory or contractual basis for a claim for attorney's fees need not be specially pled, and that failure to plead the basis of such a claim will not result in waiver of the claim.30 The better practice, however, is to plead the legal and factual basis for any claim for fees.
16-3:2 Prevailing Party
To recover attorney's fees in an action on a contract, the party must be construed as the party that prevailed or succeeded on "any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit."31 A mortgagee that obtains a judgment of foreclosure is entitled to recover its attorney's fees, provided that it pleads and proves that the mortgagee has obligated itself to pay a reasonable attorney's fee for bringing the action.32 Conversely, a mortgagor who succeeds in having a foreclosure action dismissed (either voluntarily or involuntarily) is the prevailing party and may be entitled to recover attorney's fees incurred in defending the action.33 Or, if the plaintiff voluntarily dismisses the foreclosure action, prior to a determination on the merits, the defendant may be the prevailing party and entitled to attorney's fees.34 However, the determination of which party is the prevailing party must take into account the litigation as a whole, and the "substance of litigation outcomes—not just procedural maneuvers," to determine which party prevailed on the significant issues.35 In a case where both parties prevailed on significant claims in complex and protracted litigation, neither party may be awarded fees.36 In another case with multiple claims, where each claim is separate and distinct and would support an independent action, the prevailing party was entitled to an award of attorney's fees for those fees generated in connection with that claim.37 When a plaintiff is not a prevailing party on a reformation count, which is "outside the terms of the contract," and prevails on the foreclosure of that mortgage contract, the defendant was not entitled to attorney's fees.38 However, there is no prevailing party upon the settlement of a case, such as when the parties have agreed to a short sale of the property, or the defendant mortgagor pays the amounts due the mortgagee.39 Note that an attorney representing himself in a mortgage foreclosure action is entitled to recover attorney's fees when successfully defending a foreclosure action,40 and that an attorney who has withdrawn as attorney of record for the mortgagor in a foreclosure has no claim for attorney's fees upon dismissal of that case.41 Also, a lawyer does not have standing to bring a claim for fees on his own behalf, as the claim for fees belongs to the client, and not the lawyer.42
16-3:3 Time for Filing of Motion
The Florida Rules of Civil Procedure provide that the time for filing a motion for attorney's fees is no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.43 The 30-day time period may be extended by filing a motion under Rule 1.090(b), for cause shown prior to the expiration of the deadline, or upon a showing of excusable neglect, after the expiration of the deadline.44 The failure to timely file a motion for fees or show excusable neglect will result in the denial of a request for attorney's fees, as Fla. R. Civ. P 1.525 establishes a "bright line" time requirement for filing such motions.45 The Florida Supreme Court has clarified that a motion filed prior to the entry of a final judgment is also considered timely.46
16-3:4 Burden of Proof and Evidence Required
It is well established that the burden to establish the right to attorney's fees is always on the claimant, and he must show the circumstances that justify the award as well as prove the reasonableness of the fee awarded.47 The party asserting a right to attorney's fees under a written contract has the burden not only of demonstrating its general right of recovery, but also the reasonable amount due for asserting or defending the contract right.48 Furthermore, the mere fact that the contract contains an attorney's fee provision is not, by itself, enough to show that the prevailing party is entitled to recover fees. The contract must contain specific language permitting the recovery of fees under the facts and circumstances of the case before the court.49 Attorney's fees are not necessarily recoverable as to any and all litigation relating to a contract with an attorney's fee clause.50 Furthermore, if the attorney's fees are recoverable only upon the "breach of the agreement by either party," and the court did not find any such breach, no fees may be awarded.51
16-3:5 Must Prove Fees Are Reasonable
The party seeking fees must prove that the attorney's fees sought are reasonable.52 The prevailing party's attorney should keep accurate time records,53 but the failure to put the time records in evidence is not necessarily fatal to the claim for fees.54 In addition, the party must prove the amount of time actually spent in the case, and the court must make specific findings regarding the number of hours and the amount of a reasonable hourly rate.55 An expert witness must testify as to the reasonableness of the hours spent and the hourly rate, and the failure to do so may result in reversal of the attorney's fee award.56 The testimony of the expert witness is not binding upon the trial court, but it is persuasive.57 The billing records of the opposing party are relevant to the issue of reasonableness of time expended in litigating a claim for attorney's fees.58
Florida has adopted the "Lodestar" approach utilized by the federal courts as an objective structure to determine whether attorney's fees are reasonable.59 The Florida Supreme Court identified the following factors in Rowe for the court to examine in making its determination regarding the reasonableness of attorney's fees sought by a party:
(1) The time and labor required, the novelty and difficulty of the question involved, and the skill requisite to perform the legal service properly; (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) The fee customarily charged in the locality for similar legal services; (4) The amount involved and the results obtained; (5) The time limitations imposed by the client or by the circumstances; (6) The nature and length of the professional relationship with the client; (7) The experience, reputation, and ability of the lawyer or lawyers performing the services; (8) Whether the fee is fixed or contingent.60
The federal lodestar approach establishes a "strong presumption" that the lodestar represents the "reasonable fee."61
16-3:6 Fees to Determine Party's Entitlement to Attorney's Fees, But Generally Not the Amount of Fees
The Florida Supreme Court has held that a party may be entitled to recover attorney's fees to litigate whether that party is entitled to recover attorney's fees in an insurance matter.62 This rule has been extended to other civil litigation matters based upon a breach of contract.63 Thus, a prevailing party in a mortgage foreclosure action may recover its attorney's fees in obtaining an award of entitlement. However, the general rule is that a party may not recover fees in litigating the amount of the fees.64 An exception to this rule may be found where the language of the contract is broad enough to provide for an award of fees for "any litigation" between the parties.65 Furthermore, an order on attorney's fees is not final and may not be appealed until the amount of fees is determined by the trial court, as an order on the issue of entitlement only is not ripe for review.66
16-3:7 Contingency Fee Multipliers
In limited cases, the prevailing party may seek a "multiplier" of the attorney's fees awarded in cases based upon the contingent nature of the fee agreement the party had with its attorney. Those cases may include contract cases, and the Supreme Court has held that "in no case should the court-awarded fee exceed the fee agreement reached by the attorney and his client."67 A threshold determination is that any contingency fee agreement must be in writing...
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