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07/11/13 It's The Law: Attorney's Fees are not Always Awarded

It's The Law

Attorneys Fees are not Always Awarded



If I file suit and win, do I get my attorneys fees in addition to any other damages?


The general rule is that attorneys fees are only available if, (a) suit is for breach of contract and the contract provides for attorneys fees; (b) a statute applicable to the case provides for attorneys fees; or (c) very limited public policy or common law issues that include attorneys fees as part of available relief.

Contractual provisions awarding attorneys fees to the prevailing party in any litigation involving the contract are fairly common. But, if you are drafting a contract, you may want to think twice about including such a provision. In a lot of lawsuits, both parties think they will win. If they believe they will get their attorneys fees paid by the loser, the provision can actually incur litigation. By statute, if a contract provides for attorneys fees to one party in event of litigation, the provision is made reciprocal so that either party can recover fees if they win.

Many statutes provide for attorneys fees in connection with litigation. Some of the most common examples include the following:

Section 61.16 Fla. Stat. allows a Judge to award attorneys fees to a party in a divorce case, even if not the prevailing party, based upon financial resources of both parties.

Section 68.065 Fla. Stat. provides for attorneys fees when collecting on a bad check.

Section 83.480 Fla. Stat. provides for attorneys fees to the prevailing party in a residential landlord/tenant action.

Section 44.808 Fla. Stat. provides for attorneys fees to the prevailing party in actions for unpaid wages.

Section 713.29 Fla. Stat. provides for attorneys fees to the prevailing party in a construction lien suit.

Sections 718.303, .503 and .506 Fla. Stat. provide for attorneys fees to the prevailing party in condominium cases.

Even where there is no provision for an award of attorney's fees, once a judgment is entered, Section 57.115 of Florida Statutes provides for attorneys fees to a person attempting to collect a judgment.

In addition to the statutes, attorney's fees may be recovered under common law or in certain other cases. A big example is fees in a class action lawsuit. The fees for the attorney representing the class are not directly paid by the defendant, but come from the common recovery fund. The court must approve the amount of the fee and notice must be generally given to members of the class. The theory here is that the attorneys have created the fund through the class action and the fund should pay a reasonable fee before disbursement to class members. In very limited types of cases, common law provides for recovery of attorneys fees. Those cases include claims for slander of title to real property or to quiet title, claims for wrongful attachment of property, attorney's fees ever received or appointed by the court, actions for false imprisonment and certain cases involving dissolution of accounting in a partnership.

Notwithstanding all of the statutes, potential for contract provision and limited common law access to attorneys fees, many cases do not start with an automatic right to fees. Even in those cases, there are avenues to open the attorney's fees door.

One of those avenues is Section 57.105 Fla. Stat. That statute provides for an award of attorneys fees to be paid equally by the losing party and the losing party's attorney for any claim which the court finds the losing party or the losing party's attorney knew or should have known was not supported by necessary facts or law.

A most powerful alternative to obtain fees is Section 768.79 Fla. Stat. That statute provides that if a plaintiff makes a formal demand for judgment which is not accepted by the defendant within 30 days and the plaintiff gets a judgment that is at least 25% bigger than the demand, the plaintiff is entitled to attorney' fees from the date of filing the demand. If the defendant offers plaintiff a judgment and plaintiff fails to accept within 30 days, the defendant is entitled to recover attorney's fees if the plaintiff ultimately recovers a judgment that is at least 25% less than the offer. That statute generally trumps contractual provisions for award of fees and most other statutes.

The general rule is that one entitled to attorney's fees can recover the cost of proving entitlement, but not the fees associated in establishing a reasonable amount.

Recovery of attorney's fees in connection with litigation can be complicated. Availability of fees can be significantly impact tactical decisions and settlement negotiation. When litigation is contemplated or in progress, it is essential that one's attorney be familiar with the attorney's fees issue and its potential impact on the case. If you are pondering suit, be sure to discuss the fees issue with your attorney. Keep in mind if you lose, you may be paying your opponent's attorneys fees in addition to your own.

By: William G. Morris, Esquire

William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or

The Marco Island Eagle

Other articles of interest can be viewed at our website, www.wgmorrislaw.com.

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