Lawyers in Florida have historically operated under the premise that "fees for fees" (1) are awarded only through the fee entitlement stage of litigation, and that the prevailing party in a lawsuit involving a contract with a prevailing party fees provision is typically awarded its fees through such entitlement award--and specifically excluding any litigation concerning the "amount" of attorneys' fees. Recent decisions, however, have changed this view and have created a new environment for attorneys' fees litigation. This article discusses Waverly at Las Olas Condominium Association, Inc. v. Waverly Las Olas, LLC, 88 So. 3d 386 (Fla. 4th DCA 2012), and Nationstar Mortgage LLC v. Glass, 219 So. 3d 896 (Fla. 4th DCA 2017), review granted, 2018 WL 2069328 (Fla. Feb. 13, 2018), two of the cases changing the landscape, and seeks a common thread between the two lines of authority that may assist practitioners in their pending cases. As it appropriately highlights the commonality between the two lines of caselaw, we first deal with the "fees for fees" issue.
The "no fees for fees" standard is most commonly attributed to the Florida Supreme Court's opinion in State Farm Fire & Casualty Co. v. Palma, 629 So. 2d 830 (Fla. 1993). Prior to Palma, the district courts of appeal did not agree as to whether "fees for fees" were recoverable. (2) It was hoped that Palma would provide clarity and resolve the issue, but the opinion failed to go so far as to declare "fees for fees" allowable or not allowable on a general basis. Instead, the opinion held that "fees for fees" were not recoverable on a narrow basis, i.e., F.S. [section]627.428 and the caselaw interpreting the same, but did not answer the question of whether they were absolutely prohibited. The Palma court stated that "[o]ur conclusion that statutory fees may be awarded for litigating the issue of entitlement to attorneys' fees but not the amount of attorneys' fees comports with the purpose of [[section]]627.428 and with the plain language of the statute." (3) While some courts interpreted Palma as an overall prohibition against the recovery of fees for litigating the amount of attorneys' fees, several courts pointed to Palma's reliance on F.S. [section]627.428 and questioned whether the prohibition applied in all cases.
In 2012, the Fourth District Court of Appeal rendered its Waverly opinion. A close reading of Waverly reveals it was Palma's intentional reliance and direct reference to F.S. [section]627.428 upon which Waverly turned to distinguish Palma. The Waverly court held that "the contractual prevailing party fee provision was broad enough to encompass time spent in litigating the amount of fees, and that Palma's statutory analysis is inapplicable to the contractual basis for fees." (4) Notwithstanding an excellent Florida Bar Journal article highlighting this departure from Palma, (5) the Waverly decision has, for the most part, flown under the radar of the average practitioner, and those aware of the decision were left asking whether other courts agree with Waverly or whether other courts found Palma to be all-encompassing and exclude fees for fees in all cases, including contract-based claims.
Does Subsequent Caselaw Support or Distinguish Waverly?
As is sometimes the case in our profession, the answer is both--as many courts have applied the Palma standard in cases of contractual prevailing party fee litigation, essentially holding that Palma is dispositive on the issue and bars "fees for...