Home :: Attorneys :: Roger H. Miller III :: May 2007
Attorney's Fees - Can I Recover Them?
By: ROGER H.
MILLER
May, 2007
Most clients believe at the outset of
representation that they can recover their attorney’s fees from the
opposing party in the event of a lawsuit. This may or may not be true.
In Florida, a party to a lawsuit is generally only entitled to recover
attorney’s fees if the contract or statute, under which the suit is
brought, provides for the recovery of attorney’s fees. It comes as a
surprise to many clients that there is no universal rule that entitles
them to recover their attorney’s fees if they prevail in litigation.
In the context of a real estate transaction,
the contract itself must provide for the recovery of attorney’s fees in
the event a party defaults under the contract; otherwise, attorney’s
fees will likely not be recoverable. Florida Statute § 713.29, for
example, is a statute that provides for the recovery of attorney’s fees
in the enforcement of a construction lien under Chapter 713 of the
Florida Statutes. If the lienor is successful, it will be awarded its
attorney’s fees. Conversely, the homeowner will be awarded fees if the
homeowner prevails.
Attorney’s fees in litigation can sometimes
exceed the amount that is in dispute; therefore, whether or not fees are
recoverable is one of the threshold questions that must be answered
before deciding on a course of action. The contract and any statutes
that may apply to the dispute must be analyzed to determine if
attorney’s fees may be recoverable. If a contract and/or statute
provides for the recovery of attorney’s fees, the complaint or
counter-claim must request that the court award attorney’s fees.
While the vast majority of civil cases
settle before a trial or final hearing is ever held, if judgment is
entered in favor of a party, the party requesting attorney’s fees will
need to prove entitlement to those fees under a contract or statute. In
cases with multiple legal theories and counter-claims, a party may
prevail on some theories, but not on others. The court will need to
determine which party was the prevailing party on the “significant
issue” of the case. The court must then determine the amount of
attorney’s fees to award to the prevailing party. The prevailing party
will need to show that the amount of the attorney’s fees sought is
reasonable, which is usually accomplished through testimony by another
attorney who has no interest in the outcome of the case. Typically, the
court has considerable discretion in awarding attorney’s fees,
especially as to the amount. There is no guarantee that the court will
award a party all of the attorney’s fees expended, even if the evidence
shows that the amount was reasonable.
A party seeking an award of attorney’s fees
must not only plead for attorney’s fees in the complaint, counter-claim
or answer, but must also file a motion for an award of such fees no
later than thirty (30) days after the filing of the judgment or
dismissal. Failure to file the motion for attorney’s fees within such
time will result in the loss of the prevailing party’s right to an award
of attorney’s fees.
Even after a party has pled for, proven and
obtained a judgment for attorney’s fees, the party then has to collect
on that judgment from assets of the party against whom the judgment was
entered. Thus begins the next chapter in litigation entitled “Judgment
Collection,” which is beyond the scope of this article. Please see the
Farr Law Firm newsletter “So You’ve Obtained a Judgment – Now What?” for
more information on judgment collection.
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