Recovering Attorneys’ Fees In Florida

Published October 29th, 2018 by Kai Jacobs

The question most frequently asked in client meetings, from my own experience, is “Can I get back my attorneys’ fees?”  The most common answer I give is, “No.”

Here’s why – “Generally, the law is clear that attorney’s fees are not considered to be a “loss” or damages...”  Hubbel v. Aetna Cas. & Surety Co., 758 So. 2d 94, 97 (Fla. 2000).

            Florida follows what is known as the “American Rule” when it comes to litigation parties and the circumstances under which they try to impose the burden of paying fees on the other side.  The rule provides that, generally, each party to litigation is ordinarily responsible for its own attorneys’ fees.  See Id.The rule also recognizes two exceptions.First, if the parties are litigating over issues arising from a contract in which there is a written provision providing for the prevailing party to recover its attorneys’ fees, then the burden to recover and pay for such fees can be shifted on to the non-prevailing party.Id.  Second, certain statutes (state and federal) make express provision for a party to recover its attorneys’ fees (e.g. Title VII, Florida’s civil theft statute), which courts will enforce.  Id.  From a practical standpoint, this means that in most instances of civil litigation, the disputing parties are forced to bear and pay their own attorneys’ fees.

            Florida also has an unusual statute in place for the right to recover attorneys’ fees when a contract is involved that is designed to level the playing field.  No doubt, most people have entered into contracts of disparate bargaining power (think, buying a car or furniture) in which they are presented with form documents for signature that have no room for negotiation or modification.  They are, literally, take it or leave it propositions.  If read carefully, most consumers might be surprised to find that, not only does the contract include an attorneys’ fees provision, but it only allows for the recovery of attorneys’ fees if the other party sues under the contract.

            Florida, in an effort, to bring some equality to the scenario, enacted Section 57.105(7), Florida Statutes.  This provision, essentially, makes contractual attorneys’ fees provisions reciprocal.  It grants to the courts the authority to look past the express language of a written contract that grants a right in favor of one party and make it applicable to both.

            This legislative overriding of the parties’ written arrangement is significant.  Ordinarily, the concept of the parties’ freedom of contract and their intentions reigns supreme and there is a significant body of case law in Florida making clear that courts cannot step in a rewrite a contract just because it is an unequal or bad bargain.  But, in this one instance, the legislature has given courts the express authority to step in and expand the scope and applicability of a contractual provision irrespective of the contract’s other terms.

            The American Rule is the general framework from which a party derives or is denied the right to seek recovery of its attorneys’ fees.  There are, however, circumstances that can arise within a litigation that may give rise to the right to seek recovery of attorneys’ fees.  Generally, the three (3) most recognized are: 1) when the court invokes its inherent discretion to control the proceedings and sanctions a party for misconduct, failure to follow procedure, or disobedience of an order; 2) instances in which parties have maintained a frivolous position (Section 57.105(1)-(4), Florida Statutes); and 3) as part of a formal proposal for settlement governed by Section 768.79, Florida Statutes.  Each of these circumstances are well-litigated and developed topics of law that deserve separate treatment.  Note that, for purposes of this discussion, each of the foregoing arises only within the confines of the litigation itself and is not something parties can generally gauge or consider when first making the decision to litigate or weigh the merits of their position.

            So, in evaluating a dispute, parties should keep in mind that ordinarily they are required to bear their own litigation expenses but that such obligation might be shifted if their dispute involves a contract or statute that includes a fee shifting provision.

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