Attorney's fee awards under Florida Civil Rights Act not limited to 25% of compensatory damages, but do count against $100,000 limit on recovery against state entities  [Added 8/21/08]

    Plaintiff sued Florida State University ("FSU") under the Florida Civil Rights Act ("FCRA").  The trial court awarded attorney's fees to Plaintiff.  The court further ruled that the fees counted against the limit on the "total limit of recovery" that applies to tort recoveries against the state and its subdivisions under Fla.Stat. sec. 760.11(5) (2005), which adopts the $100,000 limit in Fla.Stat. sec. 768.28(5).  The trial court, however, did not apply the 25% statutory cap on attorney's set out in Fla.Stat. sec. 768.28(8). 

    FSU appealed the ruling regarding the $25% attorney's fee cap, and Plaintiff cross-appealed the ruling on the $100,000 total recovery cap.  The First DCA affirmed both rulings.

    FSU argued that "that the trial court erred in failing to limit [Plaintiff]’s award of attorney’s fees to twenty-five percent of his compensatory damages pursuant to section 768.28(8)."  Relying on the language of the FCRA, the appellate court rejected this argument.  "Applying the Maggio [v. Florida Dept. of Labor and Employment Security, 899 So.2d 1074 (Fla. 2005)] analysis to the instant case, the express reference in the FCRA to section 768.28(5), but not to section 768.28(8), indicates that the Legislature did not intend for section 768.28(8) to apply to actions brought under the FCRA.  The FCRA contains no reference to section 768.28(8), and we may not impute words into the FCRA that were not included by the Legislature."  Furthermore, imposing a 25% cap would be inconsistent with the Legislature's intent because, by its terms, the FCRA is to be interpreted in a manner consistent with federal Title VII.

    The court also rejected Plaintiff's cross-appeal, citing Gallagher v. Manatee County, 927 So.2d 914 (Fla. 2d DCA 2006) and Zamora v. Florida Atlantic University Board of Trustees, 969 So.2d 1108 (Fla. 4th DCA 2008).  Board of Trustees of Florida State University v. Esposito, ___ So.2d ___ (Fla. 1st DCA, No. 1D07-2316, 8/15/2008).

Apportionment requirement of offer of judgment statute and rule applies only to current, not former, parties to litigation  [Added 8/18/08]

    Corporation and Former Employee were defendants in a lawsuit.  Corporation was vicariously liable for Former Employee's actions.  In 2006 Plaintiff voluntarily dismissed Former Employee from the suit.  In 2007 Corporation served on Plaintiff a proposal for settlement, which Plaintiff did not accept.  At trial Plaintiff recovered a net judgment that was at least 25% less than Corporation's proposal for settlement.  Corporation moved for attorney's fees and costs under the offer of judgment statute, F.S. 768.79.

    At the hearing on the motion Plaintiff argued that Corporation's proposal was defective under Fla.R.Civ.P. 1.442(c)(3), which provides:  "A proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal.  A joint proposal shall state the amount and terms attributable to each party."  Plaintiff argued, inter alia, that the proposal had required Plaintiff to sign a general release whose scope included Former Employee, and that as a result this was a "joint proposal" under the rule that failed to apportion the amounts attributable to each defendant.  The trial court agreed.  Corporation appealed.

    The Second DCA reversed.  The appellate court saw the issue as "whether the inclusion of 'former employees' in the general release made the proposal for settlement a 'joint proposal' which needed to be apportioned between" Corporation and Former Employee.  The court concluded that it was not a joint proposal for settlement.  "[I]n this case [Former Employee] was not a 'party' to the litigation when the settlement proposal was served because he had been dismissed from the lawsuit.  Even after strictly constructing rule 1.442, as we are required to do because the rule and the offer of judgment statute are in derogation of common law, Willis Shaw Express, Inc. [v. Hilyer Sod, Inc.] , 849 So. 2d [276 (Fla. 2003)] at 278, we cannot conclude that an entity or individual who has been dismissed from a lawsuit is a 'party' for purposes of rule 1.442 and section 768.79."  The court noted that "[l]ogically, an offer cannot be 'joint' where the only party defendant in the lawsuit is the one making the offer."  Carey-All Transport, Inc. v. Newby, ___ So.2d ___ (Fla. 2d DCA, No. 2D07-5006, 8/13/2008).

F.S. 57.105 attorney's fees assessed against lawyer and clients for filing disqualification motion as "litigation tactic"  [Added 8/13/08]

    Lawyer represented Movants in protracted litigation that began in November 2001.  Movants' opponent was represented by the law firm of "B&C."  One of B&C's attorney's Palma, had represented Movants on estate planning matters from 1999 until June 2001.  In 2007, Movants filed a motion to disqualify B&C and its attorneys who were working on the litigation (Palma was not involved in the litigation).  Movants asserted that they were current clients of B&C and had been since 1999, and argued that disqualification of B&C was therefore warranted under Florida Rules of Professional Conduct 4-1.7 (current client conflicts) and 4-1.10 (imputed disqualification).

    The trial court denied the disqualification motion, finding that Movants were former clients of B&C, rather than current clients.  The court's ruling, however, was based not on Movants status as current or former clients but on waiver.  "Because [Movants] did not move to disqualify [B&C] until 2007, and because it would have greatly prejudiced [Movants' opponent] to remove the firm that had been representing her for six years, the trial court ruled that [Movants] had waived any claim regarding a purported conflict of interest.  The [trial] court found it unnecessary to reach the disputed factual issue of whether [Movants] had consented to the dual representation."  Movants did not seek an evidentiary hearing to establish the material facts and did not object to the trial court's factual conclusions.

    Movants petitioned the First DCA for a writ of certiorari.  Not only did the appellate court deny the petition, it issued an order to show cause why attorney's fees should not be imposed against Movants and Lawyer under Fla.Stat. sec. 57.105(1) (2007).  The court imposed the attorney's fees sanction and explained its ruling in a written opinion.  The court noted that disqualification is an extraordinary remedy that must be sought with reasonable promptness, observed that such motions are often viewed with skepticism because they can be filed for tactical purposes, and stated:  "We believe [Movants'] motion, and certainly this petition for writ of certiorari, were filed as just such a litigation tactic."

    The court concluded that Movants' "assertion that they were current clients was baseless and not supported by the material facts or applicable law. Additionally, based on the undisputed facts, Petitioners had no legal cause to seek disqualification as former clients.  See rule 4-1.9, Fla.R.Prof.Conduct; Morse v. Clark, 890 So.2d 496 (Fla. 5th DCA 2004)."  B&C had done no work on Movants' estate plan since 2001.  Movants' argument regarding current client status was based primarily on 2 cover letters from a B&C paralegal in 2004 and a paralegal's bill for minor changes to their estate file in 2007.  The court concluded that "[n]one of these acts indicated a continuing legal representation, but rather they were ministerial tasks performed to update the completed estate planning documents.  This ministerial work does not meet the definition of the 'continuous representation rule.'  See Hampton v. Payne, 600 So.2d 1144, 1146 (Fla. 3d DCA 1992)."  Movants were former clients of B&C when they filed their disqualification motion, and furthermore Movants "never sought an evidentiary hearing to establish a factual basis to support their purely subjective claim that they were current clients of" B&C.

    Additionally, the trial court correctly ruled that Movants had waived any conflict by waiting 5 years after the litigation began to seek B&C's disqualification.

    Under Fla.Stat. sec. 57.105, a court "shall" award attorney's fees as a sanction where a party has asserted a claim unsupported by material facts or by the law applicable to the material facts.  The court imposed fees against Movants and Lawyer in equal parts.  Movants' claim that they did not know that their opponent had been represented by B&C since 2001 was "unworthy of credence."  The court also concluded that Lawyer's factual assertions in this regard were not credible.  "It is not enough for counsel to assert that he 'vetted' his clients’ representation of the facts.  To avoid liability, counsel must make an objectively reasonable investigation of the purported facts supporting a claim."  Here, such an investigation would have made it "inescapable" that Lawyer would have known.  Yang Enterprises, Inc. v. Georgalis, ___ So.2d ___ (Fla. 1st DCA, No. 1D07-6479, 8/7/2008).

Court-appointed lawyer who defended 3 separate charges filed under one case number is only entitled to fee for one charge  [Added 8/8/08]

    Defendant was charged with 3 separate offenses arising out of 3 separate transaction.  The 3 charges were contained in one information and filed under one case number.  Lawyer was appointed to represent Defendant in the case.  Defendant entered a guilty plea to 2 charges and the third was nolle prossed.  Lawyer thereafter filed a motion asking the trial judge to amend the order of appointment to "to clarify that the three charges were separate incidents and should be treated as separate cases for processing with the JAC" (Judicial Administrative Commission).  The court granted the order.  Lawyer then filed her bill with the JAC, seeking a fee of $2000 per charge ($6000 total).

    The JAC moved to vacate the trial court's order amending Lawyer's appointment, "arguing that this was a single case as to which only a single flat fee could be awarded."  The trial court disagreed and entered an order approving payment of $6000 to Lawyer.  The JAC petitioned the Fourth DCA for a writ of certiorari.

    The Fourth DCA granted the petition.  Fla.Stat. sec. 27.5034 controls, and "[u]nder the plain terms of the statute, the attorney is entitled to only one flat fee per 'case' no matter how many 'offenses' that case may encompass.  Thus, where a single information or indictment is brought and a single case number assigned, a single 'case' exists within the plain meaning of the language used."   The statute "prohibits fee 'stacking' and authorizes compensation only for the most serious offense where a defendant is charged with multiple offenses in a single case."  Justice Administrative Commission v. King, ___ So.2d ___ (Fla. 4th DCA, No. 4D07-2764, 8/6/2008).

Employer/carrier in workers' comp case entitled to costs after claimant voluntarily dismissed her petitions  [Added 8/8/08]

    One day before the scheduled final benefits hearing in a workers' compensation matter, Claimant voluntarily dismissed all 7 of her petitions for benefits.  The Employer/Carrier ("E/C") moved for its costs as the prevailing party.  The Judge of Compensation Claims ("JCC") denied the motion, reasoning that because Claimant dismissed her claims there had been no adjudication on the merits.  "Only after a second dismissal would Claimant’s claims be deemed denied, and only then would E/C be the prevailing party, thus entitled to recover its costs."  E/C appealed.

    The First DCA reversed.  "Based on the plain meaning of [Fla.Stat.] section 440.34(3), the prevailing party is entitled to the reasonable costs it incurred in the proceedings before the JCC.  Whether the dismissal was taken with or without prejudice has no bearing on this result.  See Rose Printing Co., Inc. v. Wilson, 602 So.2d 600, 603 (Fla. 1st DCA 1992)."  E/C was the prevailing party because "[a] defendant generally becomes the prevailing party when a plaintiff dismisses its action."  (Citations omitted.)  Palm Beach County School District v. Ferrer, ___ So.2d ___ (Fla. 1st DCA, No. 1D07-4524, 8/4/2008).

Lawyers seeking fee awards are reminded to introduce evidence supporting reasonableness of fees for all lawyers and paralegals involved  [Added 8/6/08]

    Defendant appealed an order awarding attorney's fees to Plaintiff.  At a series of hearings on fees, Plaintiff's trial counsel, Schwartz, "provided a detailed account of his work on the case as well as offering his firm’s billing entries and statements, his affidavits, and the cost statements into evidence."  Plaintiff also presented unchallenged expert testimony from Zippay.

    The appeals court noted that the expert testimony related to the reasonableness of only Schwartz's hours and rates.  "The expert witness offered no testimony regarding any of the other attorneys and paralegals who worked on the case.  There is no expert testimony to support the award of attorney’s fees for work other than that performed by Schwartz.  Accordingly, the attorney’s fee order is vacated and this case is remanded for entry of an order awarding only those attorney’s fees that were supported by the expert testimony."  DeMello v. Buckman, ___ So.2d ___ (Fla. 4th DCA, Nos. 4D07-494, 4D07-735, 4D07-1058, 7/20/2008).

Trial court erred in ordering that attorney's charging lien may be executed against former client's homestead property  [Added 8/4/08]

    In a dissolution of marriage proceeding the trial court entered a final judgment adjudicating a charging lien filed by Former Wife's lawyer.  The judgment stated that the lawyer "may file and execute this Final Judgment against the marital home."  Apparently the home was Former Wife's homestead property.  She appealed.

    The Fourth DCA reversed.  "Recently, our supreme court reiterated the preeminence of Florida’s homestead exemption.  Chames v. DeMayo, 972 So.2d 850 (Fla. 2007).  'The homestead exemption has been enshrined in our state constitution for over a hundred years.'  Id. at 853.  'The public policy furthered by a homestead exemption is to 'promote the stability and welfare of the state by securing to the householder a home, so that the homeowner and his or her heirs may live beyond the reach of financial misfortune and the demands of creditors who have given credit under such law.'"  McKean v. Warburton, 919 So.2d 341, 344 (Fla. 2005) (quoting Pub. Health Trust of Dade County v. Lopez, 531 So.2d 946, 948 (Fla. 1988)).  For these long-held policy reasons, the trial court’s final judgment on the charging lien allowing execution against the marital home is reversed."  Sass v. Sass, ___ So.2d ___ (Fla. 4th DCA, No.s 4D07-1743, 4D07-1911, 7/30/2008).

Trial court exceeded its authority by granting charging lien and ordering client's assets frozen to pay attorneys' fees  [Added 8/4/08]

    In 2001, the trial court in a dissolution of marriage proceeding entered an order freezing certain of Former Wife's martial assets (i.e., stock options).  In 2003 the court entered an order granting Former Wife's lawyers a charging lien.  In 2004 the court determined the amount of the charging lien and giving "her former lawyers the right to payment from her marital assets."  Apparently, however, Former Wife disposed of the stock options despite the court's orders.  The court found her in civil contempt of court "for selling a marital asset, after a final judgment of dissolution, in violation of earlier orders freezing the asset and granting an attorney’s charging lien against appellant’s marital assets."  Former Wife appealed.

    The Fourth DCA reversed.  "When the court first ordered the wife not to dispose of her GE stock options, it was not for the purpose of protecting her counsels’ attorneys’ fees.  Indeed the court did not have the authority to freeze her assets in order to pay her own attorneys.  Rinkor v. Brborich, 957 So.2d 661 (Fla. 3d DCA 2007); Levinson v. Levinson, 895 So.2d 432 (Fla.4th DCA 2004); Widom v. Widom, 679 So.2d 74 (Fla. 4th DCA 1996)."  Pineiro v. Pineiro, ___ So.2d ___ (Fla. 4th DCA, No. 4D07-4994, 7/30/2008).

Justice Administrative Commission may not be ordered to pay court-appointed counsel for indigent, non-parent legal custodian in dependency proceeding  [Added 7/29/08]

    The Florida Justice Administrative Commission ("JAC") was ordered to pay attorney's fees and costs to the court-appointed counsel for an indigent, nonparent legal custodian in a juvenile dependency proceeding.  The child's grandfather was the child's legal custodian.  Seeking to quash the order, the JAC petitioned the Second DCA for a writ of certiorari.

    The appellate court granted the petition.  The grandfather had neither a constitutional nor statutory (see Fla.Stat. sec. 39.013(9)(a) (2006)) right to appointed counsel.  Consequently, the trial court departed from the essential requirements of law by ordering the JAC to pay for the lawyer's services.

    The court further noted that this issue was in the hands of the legislature.  "We recognize that the grandfather has been the court-approved custodian of this child for almost her entire life and that it seems counter to public policy to deny fees to the legal representative of this indigent parental substitute.  However, our branch of government possesses neither the power to appropriate funds nor the ability to identify, by enactment of law, to whom those revenues should be paid.  It is the legislature's task to perform these public policy functions and, in this instance, it has clearly spoken.  Unless the legislature elects to amend the statutory definition of parent to encompass nonparent custodians or to otherwise authorize publicly-funded counsel for nonparent legal custodians against whom a dependency proceeding is initiated, the JAC has neither the statutory nor constitutional authority to compensate court-appointed attorneys in [court-appointed counsel]'s circumstances."  Justice Administrative Commission v. Peterson, ___ So.2d ___ (Fla. 2d DCA, No. 2D07-6075, 7/23/2008).

Offer of judgment statute and rule permit award of attorney's fees even if underlying contract does not contain attorney's fees provision  [Added 7/17/08]

    Plaintiff sued Defendants over a construction contract.  Defendants served proposals for settlement on Plaintiff, who rejected them.  Defendants prevailed at trial.  Two of the defendants moved for attorney's fees pursuant to F.S. sec. 768.79 and Fla.R.Civ.P. 1.442.  The trial court granted the motion for the individual defendant but denied it as to the corporate defendant.  The court denied the motion because "the underlying construction contract [between Plaintiff and the corporate defendant] did not contain a provision for attorney's fees."

    The Second DCA reversed on appeal.  "We can find no authority supporting the trial court’s conclusion that an award of attorney’s fees pursuant to section 768.79 and rule 1.442 may not be had if the underlying contract fails to contain a provision for attorney’s fees.  To the contrary, we conclude that section 768.79 creates an independent, substantive, and statutory basis for the award of attorney’s fees when the requirements of the statute have been met."  The corporate defendant met the requirements and thus was entitled to attorney's fees.  DuPont Builders, Inc. v. Baker, ___ So.2d ___ (Fla. 2d DCA, No. 2D07-3442, 7/11/2008).

Order granting motion to confirm arbitration award was not final "judgment" for purposes of attorney's fee award under Fla.R.Civ.P. 1.525  [Added 7/15/08]

    In the trial court, Paige moved for attorney's fees and costs.  On April 28, 2007, the court had entered an order confirming an arbitration award.  Paige's motion for attorney's fees was filed on June 4, 2007.  The trial court granted the opposing party's motion to strike Paige's motion, concluding that "an order granting a motion to confirm an arbitration award is a final 'judgment' within the meaning of rule 1.525" of the Florida Rules of Civil Procedure.  Rule 1.525 requires that a party seeking attorney's fees shall serve a motion "no later than 30 days after filing of the judgment."  Paige appealed.

    The Fourth DCA reversed.  The trial court erred because "[t]he instant order granting the motion to confirm the arbitration award is not a final judgment because the order lacks words of finality.  . . .  Because the order was interlocutory and not a judgment, the order did not trigger the thirty-day cap provided in rule 1.525 for serving the motion."  Paige v. American Security Ins. Co., ___ So.2 d___ (Fla. 4th DCA, No. 4D07-3930, 7/9/2008).

Law firm representing survivor in wrongful death action was not entitled to share in contingent fee earned by personal representative's law firm  [Added 7/12/08]

    Parents were killed in an auto accident.  They were survived by 3 sons, Gary, Larry, and Robert.  Gary was appointed sole personal representative of Parents' estates pursuant to their wills.  Gary, in his capacity as personal representative, retained the KLG law firm.  KLG negotiated a settlement for the full policy limits of the tortfeasor's bodily injury policy.  These proceeds were divided equally among the brothers.

    At about the same time Larry retained the Wagner law firm ("WVMB") to represent him.  WVMB contacted KLG and informed it that Larry did not approve of the distribution apportionment.  WVMB filed a petition in the probate court to remove Gary as personal representative and return the settlement proceeds to the trust account so that Larry's objections could be heard.  The probate court denied the petition "as procedurally deficient, and [WVMB] did not make any further objections to the distribution of the settlement proceeds.  Larry cashed his settlement check without taking any further action in the courts."

    KLG then made a demand on Parents' insurer for $2 million in uninsured motorist insurance coverage.  The matter went to mediation.  On the morning of the mediation Robert retained WVMB to represent him.  The demand on the insurer was settled for $1.23 million.  The probate court thereafter held a hearing on the issue of attorney's fees.  The court "determined that [WVMB] was not entitled to a portion of the attorney's fee award because Larry and Robert did not have any competing claims with Gary."  WVMB appealed.

    The Second DCA affirmed.  F.S. sec. 768.26 "'contemplates that one lawyer, selected by the personal representative, will pursue the tort claim for the benefit of the survivors who are entitled to recover damages.'  In re Estate of Catapane, 759 So.2d 9, 11 (Fla. 4th DCA 2000).  However, when the survivors have a conflict of interest, a single attorney could not fairly represent their competing interests.  Wiggins v. Estate of Wright, 850 So.2d 444, 449 (Fla. 2003).  In those instances, attorney's fees from the awards to the estate should be apportioned as set forth by the Fourth District in In re Estate of Catapane.  Wiggins, 850 So.2d at 447-48."

    The court rejected the arguments proffered by WVMB.  It concluded:  that applicability of section 768.26 was not limited to cases where suit had been filed ("Pre-suit settlement negotiations are an important part of wrongful death litigation, and section 768.26 does not limit recoverable fees to those incurred subsequent to filing suit"); and that there was no conflict of interest ("While there was certainly a potential conflict of interest between Larry and Robert and KLG, an actual conflict never arose because Larry and Robert never objected to the amount or apportionment of the UM settlement.  Larry and Robert may have believed that the settlement was a bit low and that they were entitled to a greater portion of the settlement proceeds, but they waived any objection to the settlement by accepting their equal shares.").  Wagner, Vaughn, McLaughlin & Brennan, P.A., v. Kennedy Law Group, ___ So.2d ___ (Fla. 2d DCA, Nos. 2D07-910, 2D07-941, 7/9/2008).

Attorney's charging lien does not attach to money appropriated by Legislature on claims bill  [Added 7/2/08]

    Law Firm represented Plaintiffs in a suit against the Florida Department of Health and Rehabilitative Services resulting from "botched medical treatment."  The jury awarded $2 million to the daughter and $6.5 million to her parents.  They collected $200,000, the maximum authorized by Fla.Stat. sec. 768.28(5) (waiver of sovereign immunity).

    Plaintiffs successfully pursued a claims bill in the Florida Legislature.  The bill "appropriated $6,500,000 for [the daughter] and $2,000,000 for her parents" and provided that payment for Law Firm's fees and costs "shall not exceed $1,074,667."  Law Firm sought additional fees pursuant to its contingent fee contract with Plaintiffs.  Law Firm "persuaded the circuit court to issue a charging lien against the appropriation for [Plaintiffs] in the claims bill."  Plaintiffs appealed.

    The Fourth DCA reversed, stating that "[t]he remedy of a charging lien may not be imposed against an appropriation of a claims bill."  The court pointed out that a claims bill appropriation is a act of legislative grace that was "separate and apart from the recovery in the lawsuit" and that, consequently, "the circuit court was not authorized to impose a charging lien upon it."

    Additionally, the court noted that the claims bill indicated a legislative intent to limit Law Firm's fees to $1,074,667.  Noel v. Sheldon J. Schlesinger, P.A., 984 So.2d 1265 (Fla. 4th DCA 2008).

    NOTE:  Compare this case to Richman Greer Weil Brumbaugh Mirabito & Christensen, P.A. v. Chernak, ___ So.2d ___, 33 Fla. L. Weekly D738 (Fla. 4th DCA 2008), 2008 WL 649232 (attorney's charging lien filed in suit that was later dismissed can attach to proceeds recovered by former client in related arbitration proceeding).

Retainer agreement provision requiring arbitration of fee disputes must be pursued in separate lawsuit, not in underlying dissolution of marriage action  [Added 7/2/08]

    Lawyer represented Client in a dissolution of marriage action.  The retainer agreement provided that "[a]ny controversy or claim arising out of or relating to this retainer agreement or the breach thereof or performance or breach of performance by [Lawyer] in their representation of you shall be settled through binding arbitration."  After the final judgment in the dissolution action was entered, Lawyer and Client had a fee dispute.  Lawyer filed a motion in the dissolution case to compel arbitration to resolve the fee dispute.  Lawyer mailed the motion and a notice of hearing to Client.  Lawyer did not serve Client with process.

    Client did not attend the hearing on the motion.  The court entered an order compelling arbitration.  Thereafter Client retained counsel and filed a motion to set aside the order pursuant to Fla.R.Civ.P. 1.540.  The trial court denied the motion, finding that client received proper notice of the hearing and that the fee agreement was not unconscionable.  Client appealed.

    The Fourth DCA reversed and remanded for vacation of the order compelling arbitration.  "We previously held 'that in an action for dissolution of marriage the court’s authority to award attorney’s fees is in reference to determining the amount of attorney’s fees, if any, payable by one party to the other (or other’s attorney), and that in such action the court has no power or jurisdiction to determine the fees due from a party to his or her attorney, absent a claim of a charging lien.'  [Citations omitted.]  In this case, no charging lien was filed and the issue of enforcement of the retainer agreement was not tried by consent.  Therefore, [Lawyer]'s only avenue for redress was to file a separate lawsuit to enforce the retainer agreement and properly serve [Client] with process.  See Milio v. Leinoff and Silvers, P.A., 668 So.2d 1108 (Fla. 3d DCA 1996).  Neither was done in this case."  Klein-Brown v. Brown, 984 So.2d 669 (Fla. 4th DCA 2008).

Trial court lacked authority to award attorney’s fees to non-party who hired lawyer to respond to subpoena duces tecum  [Added 6/27/08]

    The Attorney’s Title Insurance Fund (“the Fund”) sued one of its attorney-agents, and others, alleging a fraudulent scheme that led to the misappropriation of millions of dollars.  The Fund served a subpoena duces tecum on another one of its attorney-agents (“Non-party”) who was not a party to the suit.  Non-party hired a lawyer to review the documents and prepare a privilege log.  At her deposition, Non-party invoked the Fifth Amendment in response to each substantive question.  Non-party sought reimbursement for her outside counsel’s fees.  The trial court ordered the Fund to pay the fees of Non-party’s lawyer.  The Fund appealed.

    The Third DCA reversed.  The trial court had no authority to enter the fee award.  Attorney’s fees may be awarded only pursuant to contract or statute, and cannot be awarded as a matter of equity.  Unless provided for by contract or statute, “costs” do not include attorney’s fees.

    In closing, the appeals court observed:  “The expense of preparing a privilege log could have been avoided by [Non-party] had she simply done what almost every other attorney in Florida does:  review her files for privileged materials and prepare the privilege log herself.  The files were not foreign to her; they were her very own files.  Taxing the cost of an outside attorney under the circumstances would be the very antithesis of equity.”  Attorney’s Title Ins. Fund, Inc. v. Landa-Posada, 984 So.2d 641 (Fla. 3d DCA 2008).

claim for contingent fee is denied because contract was signed by person without authority and minor  [Added 6/4/08]

    An award of attorney's fees to Law Firm was appealed.  The Second DCA reversed.  Law Firm's claim "was based on a contingency fee agreement signed by a person who had no authority to sign the agreement and by a minor, who lacks the capacity to enter into a contract."  Law Firm did not make a claim for alternative relief, such as under a quantum meruit theory, and therefore was "foreclosed from an award of attorney's fees."  Charles v. Klemick and Gampel, P.A., 984 So.2d 563 (Fla. 2d DCA 2008).

Trial court erred  by not awarding F.S. 57.105 attorney's fees against both a party and her lawyer  [Added 6/2/08]

    Represented by Lawyer, Plaintiff sued Defendant over a real estate dispute.  The trial court awarded summary judgment for Defendant and awarded attorney's fees against Plaintiff under Fla.Stat. sec. 57.105.  The fee award, however, was entered only against Plaintiff rather than both Plaintiff and Lawyer.  Plaintiff appealed.  "The sole issue in this case is whether the trial court erred in failing to enter judgment for attorney’s fees pursuant to section 57.105, Florida Statutes (2006), against both appellant and appellant’s prior counsel, [Lawyer]."  The Fourth DCA reversed, concluding that the attorney's fee award should be against both Plaintiff and Lawyer.

    The evidence supported a finding that both Plaintiff and Lawyer "knew or should have known that their claims were not supported by material facts."  Furthermore, the trial court specifically found that "the evidence does not support that there was a good faith attempt by Plaintiff to create new law."  consequently, the appeals court held that "the trial court erred in not awarding attorney’s fees 'to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney' pursuant to section 57.105(1), Florida Statutes."  Danziger v. Alternative Legal, Inc., ___ So.2d ___ (Fla. 4th DCA, No. 4D06-5070, 5/21/2008).

"Significant party" test for awarding prevailing party attorney's fees cannot be modified by contract  [Added 6/2/08]

    A dispute between Contractor and Subcontractor resulted in litigation.  The attorney's fee provision in the contract between the parties stated in pertinent part:  "For the purposes of this Agreement, a party shall not be considered as a 'prevailing party' if its recovery shall be less than 75% of its claim amount."  The trial court found primarily in favor of Subcontractor, but Subcontractor's recovery apparently fell short of the 75% threshold specified in the contract.  Subcontractor argued to the trial court "that the 75% prevailing party threshold in the contract was against public policy under" Fla.Stat. sec. 57.105.  The trial disagreed, ruled that Contractor was the prevailing party, and entered an attorney's fee award for Contractor.  Subcontractor appealed the fee award.

    The appellate court noted that, in Moritz v. Hoyt Enters., Inc., 604 So.2d 807, 810 (Fla. 1992), the Florida Supreme Court addressed the test for prevailing party attorney's fees: as follows  "It is our view that the fairest test to determine who is the prevailing party is to allow the trial judge to determine from the record which party has in fact prevailed on the significant issues tried before the court."  The Fourth DCA stated that, in the instant case, it "must decide, as a matter of first impression, whether the 'significant issue' test for determining prevailing party attorney’s fees can be modified by contract."  The court concluded that the Florida Supreme Court's "significant issue" test for prevailing party fees cannot be contractually modified.  "At worst, [Subcontractor] is the 60% winner (but more than 80% considering the outcome of the counterclaim).  In our view, failing to recognize [Subcontractor]’s entitlement to fees and costs as the prevailing party violates the mutuality principle of section 57.105(7) and pre-existing public policy as articulated in P & C Thompson Bros. [v. Rowe, 433 So.2d 1388 (Fla. 5th DCA 1983).]"  (Footnote omitted.)  Port-A-Weld, Inc. v. Padula & Wadsworth Construction, Inc., 984 So.2d 564 (Fla. 4th DCA 2008).

Lawyer-paralegal bonus agreement that violates ethical fee-splitting rule is not void as against public policy and is enforceable by paralegal  [5/9/08]

    Lawyer hired Paralegal, orally agreeing to pay Paralegal a salary plus "bonus wages" that were calculated as 10% of Lawyer's attorney's fees from cases on which Paralegal worked.  At the time, Paralegal did not know that such an arrangement would violate Rule 4-5.4(a), Florida Rules of Professional Conduct.  Lawyer failed to pay Paralegal the full bonus amount.  Paralegal sued to collect.  Lawyer defended by asserting that "the agreement was not enforceable against her because her own promise to pay [Paralegal] the bonus wages was 'unethical and thus void as against public policy.'"  Lawyer moved for summary judgment on the ground that the bonus agreement was unenforceable as a matter of law.  The trial court granted the motion, citing Chandris, S.A. v. Yanakakis, 668 So.2d 180 (Fla. 1995).  (In Chandris, the Florida Supreme Court ruled that a contingent fee agreement that did not comply with the Rules of Professional Conduct was void as against public policy and that, as a result, a lawyer could not recover attorney's fees based on such an agreement.)

    Paralegal appealed, and the Fourth DCA reversed.  Although the court noted that the parties did not dispute that the bonus agreement violated Rule 4-5.4(a)(4), the court distinguished Chandris on several grounds.  One distinction arose from the rationale underlying Rule 4-5.4(a)(4), which is to preclude "improper interference in a case by the paralegal" who expects to share in a percentage of the lawyer's fee.  The court stated that "[i]n contrast to the contingent fee rule at issue in Chandris, which directly protects the public by strictly regulating attorney-client fee agreements, the fee-sharing rule at issue here governs agreements between attorneys and nonlawyers in an employment context and has a less direct impact upon the public."

    Additionally, the court concluded that holding the Lawyer-Paralegal bonus agreement void "would discourage, rather than encourage, attorney compliance with" Rule 4-5.4(a)(4).  The court did not want to "reward non-compliance with the fee-sharing rule by permitting an unscrupulous attorney to repudiate a non-conforming agreement after reaping the benefit of the bargain."

    The court also invoked the doctrine of in pari delicto.  "In the instant case, [Paralegal], who is not a member of the Florida Bar, is (a) not regulated by the Rules Regulating the Florida Bar and (b) did not have knowledge that [Lawyer] was breaking the Rules.  We therefore find that [Paralegal] was an innocent party and not in pari delicto to this fee-sharing agreement."  Accordingly, the agreement was enforceable by Paralegal.

    The court concluded:  "While we recognize generally that the Rules of Professional Conduct of the Rules Regulating the Florida Bar promote the public interest, we find that the public interest is not advanced if an attorney is permitted to promise a bonus arrangement that violates the fee-sharing rule, and then invoke the Rules as a shield from liability under that arrangement.  We specifically limit our holding to the factual circumstances of this case involving an employment relationship between an attorney and a paralegal.  This opinion is not to be construed to apply to a proscribed referral fee arrangement, which is distinguishable because it raises a separate set of policy considerations."  Patterson v. A Law Office of Lauri J. Goldstein, P.A., 980 So.2d 1234 (Fla. 4th DCA 2008).

First DCA upholds trial court's rejection of attorney's fee provisions of proposed class action settlement  [Added 4/24/08]

    Class Counsel represented plaintiffs in a class action suit against County attacking the constitutionality of an ordinance.  Eventually the trial court considered several proposed settlement agreements submitted by the parties.  After rejecting several of them, the court considered the proposed agreement at issue in this case.  The trial court entered an order denying approval.  Among the problems found by the trial court were issues relating to the attorney's fees provisions of the proposed settlement agreement.  The parties petitioned the First DCA for a writ of certiorari.

    The appellate court granted the petition in part.

    Class counsel's right to appeal the underlying judgment.  The proposed agreement reserved to Class Counsel the right to appeal any final judgment approving the class action settlement.  This right to appeal was not limited to attorney's fees matters.  The appellate court agreed with the trial court that this provision went too far.  "The trial court expressed concern that the parties, based on attorneys’ fees, reserved a right to appeal any judgment of final approval itself, instead of just appealing the order awarding fees, which can be independently appealed.  By making attorneys’ fees and costs a determinative feature of the settlement, we agree with the trial court that the parties created an improper 'package deal.'  . . .  We uphold the trial court’s determination as to attorneys’ fees on this point."

    "Clear sailing" provision.  A "clear sailing" provision is one in which the party responsible for paying the attorney's fees agrees not to contest the amount awarded by the court as long as it falls below an agreed-upon ceiling.  See Weinberger v. Great N. Nekoosa Corp., 925 F.2d 518, 520 n.1 (1st Cir. 1991).  The court noted that "[s]uch an agreement is present in the proposed Settlement Agreement and Release where the parties agree that 'in no event shall the determination of the ‘lodestar’ amount or the application of any such ‘multiplier’ operate to expand or enhance such aggregate attorney’s fees beyond $335,000.00'.”  The court concluded that "although clear sailing agreements have attracted considerable debate, they do not render a settlement agreement per se invalid.  Instead, case law provides that where there is a clear sailing agreement, 'rather than merely rubber-stamping the request, the court should scrutinize it to ensure that the fees awarded are fair and reasonable.'  Lubitz v. DaimlerChrysler Corp., 2006 WL 3780789 (N.J. Super. L. 2006) (citing Weinberger, 925 F.2d at 519).  We, therefore, provide that, on remand, the trial court should have broad discretion to determine whether the fees requested in this case are fair and reasonable in order to protect the interests of the class members."  Nelson v. Wakulla County, Florida, 985 So.2d 564 (Fla. 1st DCA 2008).

Failure to plead entitlement to costs does not act as waiver of litigant's right to file motion for costs at conclusion of case  [Added 4/22/08]

    Insurer prevailed in a declaratory judgment action concerning coverage.  Insurer filed a motion to tax costs, asserting an entitlement to costs under Fla.Stat. sec. 57.041 (2005) and Fla.R.Civ.P. 1.525.  Citing Stockman v. Downs, 573 So.2d 835 (Fla. 1991) and Mook v. Mook, 873 So.2d 363 (Fla. 2d DCA 2004) (which relied on Stockman), the trial court denied the motion because Insurer had failed to plead entitlement to costs.  Insurer appealed.

    The Second DCA reversed.  "[W]e conclude that the rationale articulated in Stockman for requiring that litigants plead entitlement to attorney's fees should not be applied to impose a similar requirement with respect to costs.  Accordingly, we recede from Mook to the extent it is inconsistent with our holding here."  The court explained that attorney's fees ordinarily are not recoverable, while costs are.  "The availability of a recovery of costs is part of the warp and woof of litigation.  Every party to litigation enters the litigation on notice that costs are at issue.  Given this reality, it is unnecessary to require that litigants assert a claim for costs in the pleadings."  (Footnote omitted.)  First Protective Ins. Co. v. Featherston, 978 So.2d 881 (Fla. 2d DCA 2008) (en banc).

Trial court properly awarded defendant prevailing party attorney's fees after plaintiff voluntarily dismissed suit with prejudice and refiled  [Added 4/14/08]

    Plaintiff Bank, acting as a trustee, filed a mortgage foreclosure suit against Defendant.  The complaint and amended complaint were dismissed without prejudice because Bank failed to show it owned the note and mortgage.  When Bank did not file a second amended complaint, the trial court dismissed the amended complaint with prejudice.  Rather than appealing the dismissal, Bank chose to file a new foreclosure action against Defendant.  After the dismissal with prejudice of the original suit Defendant moved for attorney's fees under Fla.Stat. sec. 57.105(7) (2006), which provides:  "If a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract."  The trial court awarded attorney's fees to Defendant.

    Bank appealed the fee award, contending that the trial court erred because Defendant was not a prevailing party.  Bank argued that "because the same factual and legal issues raised in the dismissed action are also the subject of the new litigation, [Defendant] cannot be the prevailing party under" the statute.  The First DCA rejected Bank's argument and affirmed.

    The appeals court noted that in State ex rel. Marsh v. Doran, 958 So.2d 1082 (Fla. 1st DCA 2007), it had concluded that the refiling of the same suit after a voluntary dismissal does not alter a party's right to recover prevailing party attorney's fees incurred in defending the first suit. The court reasoned that "[h]ere, since the complaint was dismissed with prejudice, it is clear that [Defendant] was the prevailing party."

    The appellate court also affirmed the trial court's use of a multiplier of 2.5 in awarding attorney's fees:  "In its order setting the attorney’s fees, the trial court fully analyzed the factors under rule 4-1.5, Florida Rules of Professional Conduct, Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), and Standard Guarantee Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990); and made  detailed findings of fact which are supported by competent substantial evidence in the unrebutted testimony of both [Defendant's] counsel and her expert witness."  Bank of New York v. Williams, 979 So.2d 347 (Fla. 1st DCA 2008).

Plaintiff who accepted proposal for settlement not "prevailing party" for purposes of attorney's fee award under Magnuson-Moss Warranty Act; conflict certified  [Added 4/1/08]

    Plaintiff sued Defendant under the federal Magnuson-Moss Warranty Act ("MMWA") (15 U.S.C. sec. 2301 et seq.).  Defendant served a proposal for settlement pursuant to Fla.Stat. sec. 768.79 (2005) and Fla.R.Civ.P. 1.442.  Plaintiff accepted Defendant's proposal for settlement.  Under the settlement proposal Defendant "neither admitted liability nor conceded plaintiff’s entitlement to attorney's fees, but acknowledged that the plaintiff might seek attorney’s fees," and no judgment was to be entered against Defendant.  The trial court thereafter denied Plaintiff's motion for statutory attorney's fees because he was not a consumer who "finally prevails" under 15 U.S.C. sec. 2310(d)(2).  Plaintiff appealed.

    The Fourth DCA affirmed.  "A consumer will be found to have finally prevailed under section 2310(d)(2) when the trial court enters a final judgment on the merits of a claim or retains jurisdiction to enforce a settlement agreement through a consent decree.  Buckhannon Bd. & Care Home, Inc. [v. West Virginia Dept. of Health & Human Resources], 532 U.S. [598] at 603–04 [(2001)].  The essential requirement is a court-ordered change in the legal relationship between the parties regardless of whether the defendant admits liability.  Id. at 604 (citing Maher v. Gagne, 448 U.S. 122, 126 n.8 (1980))."  The court noted that a private settlement ordinarily does not satisfy this requirement and pointed out that "[t]he key is 'a court-ordered ‘change [in] the legal relationship between [the plaintiff] and the defendant.’"  Id. (quoting Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989))."  In this case, however,  the court concluded that "[t]here simply was no court-ordered change in the relationship of the parties in this case by the plaintiff’s acceptance of [Defendant]'s proposal for settlement."

    The court acknowledged that its decision was contrary to one recently reached by Second DCA and certified conflict with that decision (Dufresne v. DaimlerChrysler Corp., 9750So.2d 555 (Fla. 2d DCA 2008).  See also Martin v. DaimerChrysler Corp., ___ So.2d ___ (Fla. 3d DCA, Nos. 3D-05-2573, 3D05-2026, 4/23/2008), which is accord with Dufresne.).  Mady v. DaimlerChrysler Corp., 976 So.2d 1212 (Fla. 4th DCA 2008).

Lawyer is unsuccessful in attempt to set aside client's settlement and continue suit in client's name to pursue lawyer's fee award  [Added 3/26/08]

    Lawyer represented Client in a civil rights case against Sheriff's Office.  Lawyer and Client had a contingent fee contract.  Client "discharged [Lawyer] as her counsel in a civil rights action when she chose to settle and release all of her claims against [Sheriff's Office], using another attorney, in a worker’s compensation case."  Lawyer then filed a motion to set aside the settlement and allow him to continue the civil rights action in Client's name "in order to protect his fee claims against [Sheriff's Office] under section 760.11, Florida Statutes."

    The trial court found that none of the attorneys involved in the case had attempted to defraud Lawyer of his fee.  Rather, the court indicated that any problem was caused by Client.  Accordingly, the court denied Lawyer's motions and granted the motion to dismiss filed by Sheriff's Office.  Lawyer appealed.

    The Fourth DCA affirmed.  The appellate court noted that Lawyer relied "solely on Mabry v. Knabb, 10 So.2d 330, 337 (Fla. 1942), for the following proposition:  '[W]here the client makes a fraudulent or collusive settlement intended to deprive the attorney of his compensation or cost fees, the attorney will be permitted to proceed with the suit in the client’s name for the purpose of protecting his interests.'"  The court found Mabry distinguishable.  In Mabry there had been a collusive settlement designed to deprive the lawyer of his fee; the trial court found that did not occur in the instant case.

    The court concluded:  "Despite the foregoing, [Lawyer] is not without remedy, as the discharged attorney may still recover a reasonable fee from the client for the work performed by way of quantum meruit.  See Rosenberg v. Levin, 409 So. 2d 1016 (Fla. 1982)."  Manzini & Associates, P.A. v. Broward Sheriff's Office, 976 So.2d 688 (Fla. 4th DCA 2008).

Florida Supreme Court rules that motion for attorney's fees made under offer of judgment statute may be filed in trial court before judgment is entered  [Added 3/24/08]

    Resolving a conflict among DCAs, the Florida Supreme Court ruled that a motion for attorney's fees made under the offer of judgment statute may be filed in the trial court before judgment is entered.  The Court quashed a decision of the Second DCA (Frosti v. Creel, 943 So.2d 1023 (Fla. 2d DCA 2006)) and approved a decision of the Fifth DCA (Mills v. Martinez, 909 So.2d 340, 344 (Fla. 5th DCA 2005)).

    The Court began its analysis by noting that "neither rule 1.442 [of the Florida Rules of Civil Procedure] nor section 768.79 delineates a specific period within which to file a proposal for settlement."  The Court further stated:  "After reviewing rule 1.442 and section 768.79, we find no basis to deny a party’s motion for attorney fees and costs because the underlying proposal for settlement was filed before judgment was entered.  Neither the rule nor the statute states that a proposal for settlement may not be filed prior to the filing of a judgment or unambiguously defines when a proposal for settlement should be filed.  Any grievance with the timing of the filing of a proposal for settlement can be addressed by filing a motion to strike, and the proper remedy where a court finds that a proposal is filed unnecessarily is to strike the proposal from the record, with leave to refile the proposal if and when it becomes necessary to enforce an entitlement to attorney fees and costs."  Frosti v. Creel, 979 So.2d 912 (Fla. 2008).

Court must consider more than criteria specifically listed in offer of judgment rule when awarding attorney's fees  [Added 3/24/08]

    A trial court awarded attorney's fees to Plaintiffs after Defendant rejected Plaintiffs' proposal for settlement.  Defendant appealed, arguing that "the court erred in preventing it from pursuing discovery concerning:  (1) the 'good faith' nature of the plaintiffs’ proposal for settlement; and (2) certain time spent by plaintiffs' counsel in litigating the case.  It also argues the court erred in failing to consider 'all' relevant criteria in determining the fee award."  The court affirmed on the former arguments but reversed on the latter.

    Specifically, Defendant contended that the attorney's fees award was unreasonable "because because the trial court failed to consider criteria in addition to those listed in rule 1.442 [of the Florida Rules of Civil Procedure], supporting a reduction in the lodestar amount."  Rule 1.442(h)(2), concerning the reasonable of a fee award under Fla.Stat. sec. 768.79, provides:  "When determining the reasonableness of the amount of an award of attorneys’ fees pursuant to this section, the court shall consider, along with all other relevant criteria, the following factors . . ."  [Emphasis supplied by court.]

    The trial court erred in reading Sarkis v. Allstate Ins. Co., 863 So.2d 210 (Fla. 2003), as limiting the criteria to be considered in awarding attorney's fees under the statute to those contained in rule 1.442.  The appeals court stated:  "We do not find Sarkis to be as restrictive.  First, the rule itself contemplates 'other relevant criteria.'  And, our supreme court acknowledged that a reasonable hourly rate and reasonable number of hours is to be considered, criteria not listed in rule 1.442.  We read Sarkis to hold that a contingency risk multiplier is not applicable to an award of fees under 768.79, and not to eliminate consideration of 'other relevant criteria.'"  The court concluded:  "Because the trial court appears to have limited its consideration to factors A-F of rule 1.442, we reverse and remand the case to the trial court for consideration of the other relevant criteria argued by the defendant."  Liggett Group, Inc. v. Davis, 975 So.2d 1281 (Fla. 4th DCA 2008).

After an insurer-insured dispute, insurer ordered to pay insured's attorney's fees although dispute was settled without trial  [Added 3/19/08]

    Insureds made a claim on their insurance policy after their home was damaged during a hurricane.  Insurer disputed the amount of the damage, asserting that the extent of the damage was about $715.  Insureds sought substantially more.  The policy provided that either party "may . . . demand an appraisal of the loss."  The parties participated in an appraisal process.  As a result, the loss was fixed at a little over $9000.

    After Insurer paid the claim, Insureds filed a motion for attorney's fees under Fla.Stat. sec. 627.428 (2006).  Insureds argued that the payment constituted a confession of judgment entitling them to fees under the statute, while Insurer asserted that Insureds were not entitled to fees because the dispute was resolved through appraisal rather than litigation.  The trial court denied the motion for attorney's fees.  Insureds appealed.

    The Fifth DCA reversed.  The purpose of the fee statute is to discourage insurers from contesting valid claims.  The court stated:  "What is clear is that there was a substantial discrepancy between [Insurer]'s initial estimate of the damages to the [Insureds'] property ($715.60) and the final appraisal value ($9,084.29).  It appears that there was a bona fide dispute between the parties as to the amount of property damage and that the [Insureds] complied with the policy prior to filing their lawsuit.  Further, the [Insureds] did not 'race to the courthouse' to file a complaint against [Insurer], as they waited nearly six months after [Insurer]'s initial assessment to file their complaint.  [Insurer]'s payment to the [Insureds] acted as a confession of judgment, such that the [Insureds] were entitled to attorney's fees under section 627.428, Florida Statutes."

    The court noted that Insureds would not have been entitled to fees had the appraisal process been mandatory rather than permissive.  Jenkins v. USF&G Specialty Ins. Co., 982 So.2d 15 (Fla. 5th DCA2008).

Attorney's charging lien filed in suit that was later dismissed can attach to proceeds recovered by former client in related arbitration proceeding  [Added 3/14/08]

    Law Firm represented Clients in filing a suit on their behalf (the "original suit").  A conflict of interest later required Law Firm to withdraw from the original suit.  Before withdrawing Law Firm filed a notice of charging lien in that suit for fees and costs.  Clients retained new counsel.  Clients voluntarily dismissed the original suit.  Clients thereafter filed a new action naming additional defendants (the "second suit").  The second suit, however, alleged the same material facts as the original suit.  Law Firm filed a notice of charging lien in the second suit.  While the second suit was pending, Clients were named in an arbitration proceeding initiated by one of the defendants.  The arbitration proceeding concerned the same issues as those raised in the 2 lawsuits.  A settlement was reached and ultimately enforced in the arbitration proceeding.  The arbitration award required Clients' new counsel to hold funds in its trust account to satisfy any outstanding liens.  As part of the settlement the second suit was dismissed by joint stipulation.  "There was no language in the order expressly reserving jurisdiction in the trial court to entertain any post-dismissal motion to enforce a charging lien."

    Several months later Law Firm filed a motion to enforce its charging lien in the original suit.  Clients moved to strike the motion.  The trial court granted the motion to strike, "reason[ing] that 'the charging lien only applies if there are settlement proceeds' and 'there are no proceeds from the [original suit] . . . because the case got dismissed'."  Law Firm appealed.

    The Fourth DCA reversed.  The court first discussed the nature of a charging lien and the requirements for imposing a charging lien.  The court then concluded that the trial court erred in ruling that Law Firm's lien could not be litigated in the original suit.  "[I]f an attorney’s charging lien 'is an equitable right to have costs and fees due an attorney for services in the suit secured to him, Sinclair [Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom], 428 So.2d [1383 (Fla. 1983)] at 1384, it does not appear appropriate to seek enforcement of the lien in forums where the attorney has not directly participated.  Moreover, the [Clients'] argument ignores the common law in this state that timely notice is the only requirement for perfecting a charging lien.  See Sinclair, 428 So.2d at 1385.  The lien cannot be pursued if it is not perfected.  Perfection of a charging lien typically occurs before the outcome of the case is known.  For a lien to be enforceable, an attorney must prove his or her services resulted in 'tangible fruits.'  Whether the attorney’s services produced 'tangible fruits' is an issue of proof, but it is not an issue of subject matter jurisdiction.  As [Law Firm] points out on appeal, it may not prevail in proving its services in some way contributed to the production of a settlement agreement which brought legal proceedings between the [Clients] and [the original defendant] to an end, but that does not deny [Law Firm] access to litigate that issue in the forum where it directly represented the [Clients]."  Richman Greer Weil Brumbaugh Mirabito & Christensen, P.A. v. Chernak, ___ So.2d ___, 33 Fla. L. Weekly D738 (Fla. 4th DCA, No. 4D07-647, 3/12/2008), 2008 WL 649232.

Fifth DCA refuses to enforce attorney's fee provision in lease agreement because it "clearly makes no sense"  [Added 3/11/08]

    Lessor appealed a trial court's award of attorney's fees to Tenant following a lawsuit between the parties.  Lessor argued that the attorney's fee provision in the lease agreement was "not enforceable because it is 'nonsensical'."  The Fifth DCA agreed and reversed.

    The attorney's fee provision in question stated:  "ATTORNEY’S FEES:  In the event that either party incurs legal fees or costs in the enforcement of this Lease or any provision hereof, whether suit is filed or not, shall be entitled to recover and to receive payment of reasonable attorneys’ and costs incurred by the other party."

    In construing this provision, the appeals court stated:  "The provision as written clearly makes no sense:  It provides that if either party incurs attorney’s fees or costs when trying to enforce the lease, some unnamed entity (presumably, at least, a party) is entitled to recover the fees and costs that were incurred by the other party rather than those incurred by that entity.  Thus, it does not reflect any clear intention of the parties as to whom, when, and how attorney’s fees or costs should be allowed.  We, therefore, conclude that as written, the fee provision in the lease is unenforceable."  Islander Beach Club Condominium v. Skylark Sports, L.L.C., 975 So.2d 1208 (Fla. 5th DCA 2008).

On its own motion First DCA imposes f.s. 57.105 fees against lawyer who appealed his disqualification by administrative Law Judge for "unruly" behavior  [Added 2/27/08]

    Lawyer represented a client in a proceeding before Administrative Law Judge ("the ALJ").  The ALJ found Lawyer's behavior to be disruptive and disqualified him.  Lawyer petitioned for review, challenging his disqualification and expulsion from the proceedings.  The First DCA denied Lawyer's petition and issued an order to show cause why Lawyer should not have appellate attorney's fees imposed against him pursuant to Fla.Stat. sec. 57.105 and 120.595(6).  After receiving the parties' responses, the appeals court imposed appellate attorney's fees.

    The court noted that section 57.105 "does not require a party seeking fees to show the complete absence of a justiciable issue of fact or law, but permits fees to be recovered for any claim or defense that is insufficiently supported."  The court concluded that all of the arguments raised by Lawyer in his petition lacked merit.  One of the arguments rejected as meritless was that the ALJ's action in disqualifying Lawyer "was an exercise of judicial contempt power, which ALJs do not possess."  An ALJ, however, has the authority "to disqualify a counsel engaging in unruly, disruptive behavior."  Furthermore, in this case "the ALJ never mentioned contempt when he expelled [Lawyer], and the order of expulsion made no reference to contempt and imposed no fine or punishment.  The order was not an exercise of criminal contempt power as it was issued to preserve decorum during the proceeding, not for punishment."

    The court imposed the fees in equal parts against Lawyer and his client.  Gopman v. Dept. of Education, 974 So.2d 1208 (Fla. 1st DCA 2008).

Party that settled pursuant to offer of judgment can be "prevailing party" for purposes of attorney's fee award under Magnuson-Moss warranty Act  [Added 2/12/08]

    Plaintiff sued Defendant under the federal Magnuson-Moss Warranty Act ("MMWA") (15 U.S.C. sec. 2301-2312).  Plaintiff settled pursuant to an offer of judgment.  The trial court denied Plaintiff's motion for statutory attorney's fees because he was not a "prevailing party."  Plaintiff appealed.

    The Second DCA reversed.  After discussing Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health & Human Resources, 532 U.S. 598, 604 (2001), and American Disability Ass'n v. Chmielarz, 289 F.3d 1315, 1319 (11th Cir. 2002), the court stated:  "Although the trial court here did not enter an order explicitly retaining jurisdiction, a settlement agreement entered into pursuant to an offer of judgment is nevertheless judicially enforceable because the offer of judgment statute states that '[u]pon filing of both the offer and acceptance, the court has full jurisdiction to enforce the settlement agreement.'  See § 768.79(4).  We therefore conclude that the settlement here is the functional equivalent of a consent decree and that [Plaintiff] is not precluded from claiming entitlement to attorney's fees under the MMWA simply because he accepted the proposal for settlement."  Dufresne v. DaimlerChrysler Corp., 975 So.2d 555 (Fla. 2d DCA 2008).

    NOTE:  The Fourth DCA reached a decision contrary to Dufresne and certified conflict.  Mady v. DaimlerChrysler Corp., 976 So.2d 1212 (Fla. 4th DCA 2008).

Florida Supreme Court resolves conflict among Districts regarding construction of pre-2006 version of Fla.R.Civ.P. 1.525 (attorney's fee motions)  [Added 2/8/08]

    The Florida Supreme Court exercised its conflict jurisdiction to resolve a conflict among Districts regarding application of the pre-2006 version of Florida Rule of Civil Procedure 1.525, which provided:  "Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion within 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal."

    The Court summarized the the conflict among DCAs:  "All of the district courts of appeal, except the Second District, have construed the rule as setting an outside deadline in which the motion for costs or fees is untimely only if served more than thirty days after the filing of the judgment.  The Second District, however, has held that the rule creates a narrow window for serving the motion that begins only after the filing of the judgment and closes thirty days later."

    The Court explored the history and purpose behind the rule, including a discussion of the meaning of the word "within," before concluding:  "[T]he prior version of rule 1.525 in effect in 2004 was not intended to create a limited thirty-day window for service of a motion for attorneys’ fees or costs or both.  The rule in effect in 2004, just like the rule amended effective 2006, requires only that the motion be served no later than thirty days following the filing of the judgment."  (In a footnote, the Court added that its decision "does not alter the pleading requirements for claims for attorneys' fees that have been established by prior case law.  See Stockman [v. Downs], 573 So.2d [835] at 837 [(Fla. 1991)].")

    Consequently, the Court quashed the decision in Barco v. School Board of Pinellas County, 946 So.2d 1244 (Fla. 2d DCA 2007), disapproved the decision in Swann v. Dinan, 884 So.2d 398 (Fla. 2d DCA 2004), and approved the decisions in Norris v. Treadwell, 907 So.2d 1217 (Fla. 1st DCA 2005), rev. dism'd 934 So.2d 1207 (Fla. 2006), Byrne-Henry v. Hertz Corp., 927 So.2d 66 (Fla. 3d DCA), rev. dism’d, 945 So.2d 1289 (Fla. 2006), Swift v. Wilcox, 924 So.2d 885 (Fla. 4th DCA 2006), rev. den., 949 So.2d 199 (Fla. 2007), and Martin Daytona Corp. v. Strickland Construction Services, 941 So.2d 1220 (Fla. 5th DCA 2006).  Barco v. School Board of Pinellas County, 975 So.2d 1116 (Fla. 2008).

Trial court erred by awarding prevailing party attorney's fees before conclusion of case  [Added 2/4/08]

    Plaintiff sued Defendant in a multi-count complaint that included federal and state antitrust claims, breach of contract, and violations of the Florida Deceptive and Unfair Trade Practices Act.  Ultimately the antitrust claims were dropped.  Defendant then sought an award of attorney's fees as a prevailing party.  The court awarded fees to Defendant.  Plaintiff appealed.

    The Third DCA reversed, concluding that the trial court erred in awarding prevailing party attorney's fees.  "The circuit court’s determination of [Defendant]’s entitlement to attorney’s fees as prevailing party on the State Antitrust Counts due to [Plaintiff]’s abandonment of these claims is premature given that significant counts remain pending in the lawsuit.  . . .  Because stated causes of action remain in the instant lawsuit, it is impossible to determine the 'substantially prevailing' party until such time as all pending counts are resolved."  Kapila v. AT&T Wireless Services, Inc., 973 So.2d 600 (Fla. 3d DCA 2008).

Florida Supreme Court rules that assignee, but not subrogee, is entitled to attorney's fees under F.S. 627.428 for prevailing in coverage dispute against principal's insurer  [Added 1/29/08]

    Exercising its conflict jurisdiction, the Florida Supreme Court addressed the following issue:  "[W]hether a surety that pays money on behalf of its principal and is subrogated to any rights the principal has against its own insurer under principles of equitable subrogation is entitled to recover its attorney’s fees under section 627.428, Florida Statutes (2006), for prevailing in a coverage dispute against the principal’s insurer."  The Court answered the question presented by stating:  "We conclude that a surety that has no written assignment from the insured and is not a named or omnibus insured or named beneficiary under the policy is not entitled to attorney’s fees under section 627.428."  In resolving the conflict between the Districts, the Court quashed the Second DCA's decision in Ryan Inc. Eastern v. Continental Casualty Co., 910 So.2d 298 (Fla. 2d DCA 2005), and approved the First DCA's decision in Western World Insurance Co., Inc. v. Travelers Indemnity Co., 358 So.2d 602 (Fla. 1st DCA 1978).

    The statute in question gives attorney's fee rights to a "named or omnibus insured."  The surety contended that it stood in the shoes of a "named insured" and therefore was entitled to a fee award.  The Supreme Court disagreed.  The Court distinguished the concepts of assignment and subrogation.  "Although the surety may stand in the shoes of the principal, the principal does not lose its status as an insured under the policy.  . . .  Because the principal retains its rights under the policy, which includes the statutory right to claim attorney’s fees, the surety does not acquire the principal’s status as one of the designated entities entitled to attorney’s fees under the statute.  This prevents the insurer from being subject to a claim for attorney’s fees from both the principal (insured) and the surety (subrogee) when, as in this case, both litigate the same coverage issue.  On the other hand, an assignment transfers all of the insured’s rights to a claim under the policy, including its status as an insured under the policy.  Thus, an assignee is entitled to an award of fees under section 627.428.  See Roberts [v. Carter], 350 So. 2d [78] at 79 [Fla. 1977)].  Continental Casualty Co. v. Ryan Incorporated Eastern, 974 So.2d 368 (Fla. 2008).

Attorney's fees may be awarded based on motion filed by defendant within 30 days of voluntary dismissal of complaint  [Added 1/17/08]

    Plaintiff filed suit against Defendant for collection of a promissory note.  Plaintiff voluntarily dismissed the suit before Defendant filed an answer, but after the answer was due.  Defendant filed a motion for attorney's fees within 30 days after the dismissal.  The trial court denied the motion for fees.  Defendant appealed.

    The Fourth DCA reversed.  The court read Stockman v. Downs, 573 So.2d 835 (Fla. 1991), as holding that "the failure to set forth a claim for attorney’s fees in a complaint, answer, or counterclaim, if filed, constitutes a waiver" (citing Green v. Sun Harbor Homeowners' Ass'n, 730 So.2d 1261, 1263 (Fla. 1998)).  "In Green, however, the court stated that the failure to set forth a claim for attorney’s fees in a motion does not constitute a waiver.  Id.  The court stated:  'Until a rule is approved for cases that are dismissed before the filing of an answer, we require that a defendant’s claim for attorney’s fees is to be made either in the defendant’s motion to dismiss or by a separate motion which must be filed within thirty days following a dismissal of the action.  If the claim is not made within this time period, the claim is waived.'"

    In the instant case, Defendant complied with Green by filing its motion for attorney's fees within 30 days after the voluntary dismissal.  Stolper, LLC v. Jeffer, 971 So.2d 279 (Fla. 4th DCA 2008).

Party's claim for attorney's fees is waived by failing to specifically plead it, and demand in summary judgment motion does not suffice  [Added 1/17/08]

    Plaintiffs sued Bank seeking information pertaining to some accounts.  Plaintiffs' amended complaint alleged that they had retained a law firm and were obligated to pay that firm's fees and costs.  The complaint, however, did not include a demand or request for fees.  Plaintiffs subsequently filed a motion for summary judgment.  That motion did contain a demand for attorney's fees.  After the trial court granted Plaintiffs' summary judgment motion, they filed a motion for attorney's fees.  Bank objected on grounds that included Plaintiffs' alleged "failure to plead sufficiently a request for fees."  The trial court entered an attorney's fee award in favor of Plaintiffs.  Bank appealed.

    The Third DCA reversed.  A claim for attorney's fees must be pled.  Stockman v. Downs, 573 So.2d 835, 837-38 (Fla. 1991).  Plaintiffs did not file a pleading requesting fees.  Plaintiffs' complaint "merely stated that it had retained counsel and was obligated to pay fees to that firm.  That allegation does not 'plead specifically a request for attorney’s fees' and is therefore insufficient.  [Footnote omitted.]  See Res Panel Refrigeration Corp. v. Bill Collins Refrigeration Servs., Inc., 636 So.2d 569, 570 (Fla. 3d DCA 1994).  In addition, [Plaintiffs'] subsequent filing of its motion for summary judgment requesting an award of fees does not justify a fee award.  The request for such relief in a summary judgment motion does not satisfy Stockman.  See Green v. Sun Harbor Homeowners' Ass'n, 730 So.2d 1261, 1263 (Fla. 1998) ('This Court's use of the phrase ‘must be pled’ is to be construed in accord with the Florida Rules of Civil Procedure.  Complaints, answers, and counterclaims are pleadings pursuant to Florida Rule of Civil Procedure 1.100(a).'); Sardon Found. v. New Horizons Serv. Dogs, Inc., 852 So.2d 416, 421 (Fla. 5th DCA 2003); Taylor v. T.R. Props., Inc. of Winter Park, 603 So.2d 1380, 1381 (Fla. 5th DCA 1992)."  American Express Bank International v. Inverpan, S.A., 972 So.2d 269 (Fla. 3d DCA 2008).

Section 57.105 fees imposed against lawyer who convinced Court to enter judgment against uninsured motorist insurer in excess of policy limits; parties may stipulate that entire award will be entered against lawyer  [Added 1/10/08]

    Lawyer represented Insured in a suit against Insurer on her uninsured motorist insurance policy.  The jury rendered a verdict for more than $440,000.  Although policy limits were $50,000, Lawyer "convinced the trial court to enter a judgment for the entire amount of the jury's verdict without any allegation in the pleadings, much less a factual determination, that [Insurer] had committed bad faith."  Insurer appealed.  The Second DCA reversed and remanded for entry of a judgment in accordance with the policy limits.

    Insurer also sought an award of attorney's fees against Insured and Lawyer pursuant to Fla.Stat. sec. 57.105 (2006).  The appeals court granted the fee award.  The court noted that "longstanding, well-established law" provided that "a judgment entered against an insurance carrier for benefits provided by its policy must be limited to the policy limits."  (Bad faith was not alleged in this case.)  "We conclude that [Lawyer] knew or should have known that his proposed final judgment was not supported by existing law when he presented it for entry to the trial court, and his defense of the amount of the final judgment in this appeal was without merit."

    In a footnote the court indicated that, despite the statute's language, on remand the entire amount of the fee award could be entered against Lawyer (rather than Lawyer and Insured jointly).  "We note that section 57.105 states that these fees must be paid in equal amounts by [Insured] and her attorney and does not permit this court to impose a higher portion of the fees upon the attorney, even if it is obvious that the circumstances justifying the imposition of fees are matters exclusively attributable to the attorney.  See Morton v. Heathcock, 913 So.2d 662, 669 (Fla. 3d DCA 2005). On rehearing, to his credit, [Lawyer] asked that all fees imposed as a sanction be imposed only against him.  [Insurer] did not object to this proposal.  We are not convinced that we have the authority to order a sanction in contravention of the statute, but we see no reason why the parties cannot stipulate to that result on remand."  Nationwide Mutual Fire Ins. Co. v. Voigt, 971 So.2d 239 (Fla. 2d DCA 2008) (on rehearing).

Error to apply contingency risk multiplier to fee award absent evidence that client had difficulty securing competent counsel  [Added 1/6/08]  --  Eckhardt v. 424 Hintze Management, LLC, 969 So.2d 1219 (Fla. 1st DCA 2007).

Even "nominal" settlement offer may be made in good faith and support award of fees under offer of judgment statute.  [Added 1/6/08]  --  Downs v. Coastal Systems International, Inc., 972 So.2d 258 (Fla. 3d DCA 2008).

Florida Supreme Court rules that clause in lawyer-client fee contract cannot waive homestead protection that applied to client's property.  [Added 12/27/2007]  --  Chames v. DeMayo, 972 So.2d 850 (Fla. 2007).

Judgment awarding fees to lawyer is reversed on ground that there was no evidence lawyer had actual or apparent authority to represent purported corporate client.  [Added 12/9/07]  --  Florida State Oriental Medical Ass'n, Inc. v. Slepin, 971 So.2d 141 (Fla. 1st DCA 2007).

Non-compliance with Fla.R.Civ.P. 1.525 regarding trial court attorney's fee awards does not preclude an award of appellate attorney's fees if a motion is timely filed.  [Added 11/30/07]  --  Parrot Cove Marina, LLC v. Duncan Seawall Dock & Boatlift, Inc., 978 So.2d 811 (Fla. 2d DCA 2008).

Strictly construing notice requirements of Fla.Stat. sec. 57.105, Third DCA reverses attorney's fees award.  [Added 11/24/07]  --  Davidson v. Ramirez, 970 So.2d 855 (Fla. 3d DCA 2007).

questioned fee arrangement does not result in reversal of conviction, but defense counsel's handling of murder weapon does.  [Added 11/14/07]  --  Alessi v. State, 969 So.2d 430 (Fla. 5th DCA 2007).

$100,000 statutory cap on damages against state agencies in tort actions includes amounts awarded for attorney's fees.  [Added 11/9/07]  --  Zamora v. Florida Atlantic University Board of Trustees, 969 So.2d 1108 (Fla. 4th DCA 2007).

Lawyer who withdrew from contingent fee case for health reasons may not have forfeited right to fee.  [Added 11/1/07]  --  Collier v. Bohnet, 966 So.2d 1033 (Fla. 4th DCA 2007).

    NOTE:  The Fourth DCA's decision did not discuss two points of possible interest.  First, the Faro court indicated that the exception to the rule that a withdrawing lawyer gives up the right to share in a continent fee applied when a lawyer was forced to withdraw as a result of the client's conduct.  "We hold that when an attorney withdraws from representation upon his own volition, and the contingency has not occurred, the attorney forfeits all rights to compensation.  . . .  We further hold, however, that if the client's conduct makes the attorney's continued performance of the contract either legally impossible or would cause the attorney to violate an ethical rule of the Rules Regulating The Florida Bar, that attorney may be entitled to a fee when the contingency of an award occurs."  Faro v. Romani, 641 So.2d 69, 71 (Fla. 1994) (emphasis added).  Second, there are Florida cases holding that a quantum meruit fee that is paid to a lawyer who was discharged without cause in a contingent fee case is to be paid from the client's share of the recovery.  See, e.g., Jones & Granger v. Johnson, 788 So.2d 381 (Fla. 1^st DCA 2001); Doremus v. Florida Energy Systems of South Florida, Inc., 676 So.2d 444 (4th DCA 1996); Stabinski, Funt & De Oliveira, P.A. v. Alvarez, 490 So.2d 159 (Fla. 3d DCA 1986); Adams v. Fisher, 390 So.2d 1248 (Fla. 1st DCA 1980).

Fla.Stat. sec. 44.103(6) does not preclude court award of attorney's fees incurred during non-binding arbitration.  [Added 11/1/07]  --  Midway Services, Inc. v. Custom Manufacturing & Engineering, Inc., 974 So.2d 427 (Fla. 2d DCA 2007).

Insurer's workers' compensation lien does not attach to fees paid to lawyer who prosecuted claimant's suit against third party tortfeasor.  [Added 10/25/07]  --  Luscomb v. Liberty Mutual Ins. Co., 967 So.2d 379 (Fla. 3d DCA 2007).

Florida Supreme Court rejects request to adopt rule of procedure eliminating need for expert witness testimony at attorney's fee hearings.  [Added 10/2/07]  --  In re: Amendments to Florida Rules of Civil Procedure, 966 So.2d 943 (Fla. 2007).

Trial court erred in entering attorney's fee award in divorce case that was structured so payment could be delayed until youngest child turned 19 (in 2019).  [Added 8/20/07]  --  Wright v. Wright, 965 So.2d 1168 (Fla. 2d DCA 2007) (on motion for clarification).

Trial court erred by awarding attorney's fees under Fla.Stat. sec. 57.105 in domestic violence injunction case.  [Added 8/20/07]  --  Dudley v. Schmidt, 963 So.2d 297 (Fla. 5th DCA 2007).

In dispute between 2 law partners that involved the "functional equivalent" of an action for an accounting, trial court did not err in awarding attorney's fees.  [Added 8/2/07]  --  Larmoyeux v. Montgomery, 963 So.2d 813 (Fla. 4th DCA 2007).

Error for trial court to award legal fees and expert witness fees incurred by lawyer in perfecting and enforcing charging lien.  [Added 7/24/07]  --  Rudd v. Rudd, 960 So.2d 885 (Fla. 4th DCA 2007).

Award of attorney's fees under offer of judgment statute reversed because proposed release was an ambiguous non-monetary term of offer.  [Added 7/24/07]  --  Sparklin v. Southern Industrial Associates, Inc., 960 So.2d 895 (Fla. 5th DCA 2007).

Disposition of case on merits not necessary to support award of attorney's fees under F.S. 57.105.  [Added 7/2/07]  --  Hustad v. Architectural Studio, Inc., 958 So.2d 569 (Fla. 4th DCA 2007).

Florida Family Law Rule of Procedure 12.525 (rather than Fla.R.Civ.P.) applies to motions for attorney's fees in all cases pending on Rule 12.525's effective date (March 3, 2005).  [Added 6/23/07]  --  Montello v. Montello, 961 So.2d 257 (Fla. 2007).

Florida Supreme Court draws another "bright line" regarding offer of judgment rule, strictly requiring that offer cite applicable statute.  [Added 6/16/07]  --  Campbell v. Goldman, 959 So.2d 223 (Fla. 2007).

Trial court erred in awarding attorney's fees under F.S. 57.105 in collateral criminal proceeding.  [Added 5/11/07]  --  Ortiz v. McDonough, 957 So.2d 1256 (Fla. 1st DCA 2007).

Lawyer and client assessed appellate attorney's fees under F.S. 57.105 for pursuing frivolous appeal seeking specific performance of alleged real estate contract.  [Added 4/11/07]  --  de Vaux v. Westwood Baptist Church, 953 So.2d 677 (Fla. 1st DCA 2007).

Division of contingent fee between co-counsel in different firms governed by fee agreement, not quantum meruit, even though one co-counsel was discharged before contingency occurred.  [Added 4/6/07]  --  Jay v. Trazenfeld, 952 So.2d 635 (Fla. 4th DCA 2007).

Trial court erred in awarding fees in divorce case based solely on parties relative income.  [Added 3/28/07]  --  Balko v. Balko, 957 So.2d 15 (Fla. 2d DCA 2007).

Arbitration award not "judgment" for purposes of Fla.R.Civ.P. 1.525 30-DAY time period for filing motion for attorney's fees.  [Added 3/28/07]  --  Landing Group of Tampa, Inc. v. Kifner, 951 So.2d 1014 (Fla. 5th DCA 2007).

Computerized legal research expenses are not taxable "costs" to prevailing party, per Fourth DCA  [Added 3/24/07]  --  Wood v. Panton & Co. Realty, Inc., 950 So.2d 534 (Fla. 4th DCA 2007).

Same standard applies to plaintiffs and defendants under prevailing party attorney's fee provisions of Florida Deceptive and Unfair Trade Practices Act.  [Added 3/19/07]  --  Humane Society of Broward County, Inc. v. Florida Humane Society, 951 So.2d 966 (Fla. 4th DCA 2007).

In collection case, trial court directed to enter attorney's fee award without contingency risk multiplier; no evidence that multiplier necessary to attract competent counsel.  [Added 3/12/07]  --  Sumner Group, Inc. v. M.C. Distributec, Inc., 949 So.2d 1205 (Fla. 4th DCA 2007).

Fifth DCA exercises discretionary jurisdiction to conclude that trial court erred in applying multiplier to fee award in PIP suit.  [Added 3/7/07]  --  Progressive Express Ins. Co. v. Schultz, 948 So.2d 1027 (Fla. 5th DCA 2007).

Florida Commission on Ethics order denying attorney's fees to subject of ethics complaint is reversed.  [Added 2/21/07]  --  Osborne v. Commission on Ethics, 951 So.2d 25 (Fla. 5th DCA 2007).

Trial court erred in refusing to order payment of former wife's attorney's fees from proceeds of sale of marital home, which former husband claimed was his homestead.  [Added 2/15/07]  --  Sell v. Sell, 949 So.2d 1108 (Fla. 3d DCA 2007).

Error for trial court to use multiplier when awarding fees in suit brought under Florida Civil Rights Act.  Added 2/13/07]  --  Haines City HMA, Inc. v. Carter, 948 So.2d 904 (Fla. 2d DCA 2007).  NOTE:  See also Winn-Dixie Stores, Inc. v. Reddick, 954 So.2d 723 (Fla. 1st DCA 2007) (contingency fee multipliers not permitted under Florida Civil Rights Act).

Trial court erred in awarding contingent fee to lawyer discharged by client before contingency occurred.  [Added 1/9/07]  --  Fields v. Klein, 946 So.2d 119 (Fla. 4th DCA 2007).

Lawyer's charging lien can attach to any positive recovery produced for client by lawyer's efforts, even if client faces net loss due to counterclaims.  [Added 12/22/06]  --  Rebecca J. Covey, P.A. v. American Import Car Sales, 944 So.2d 1202 (Fla. 4th DCA 2006).

Defendant may be awarded prevailing party attorney's fees after plaintiff voluntarily dismisses case, even through plaintiff later refiled case and prevailed.  [Added 12/14/06]  --  Alhambra Homeowners Ass'n, Inc. v. Asad, 943 So.2d 316 (Fla. 3d DCA 2006).

In wrongful death case trial, court erred in not awarding fees to all lawyers for survivors in proportion to their efforts.  [Added 12/13/06]  --  Garces v. Montano, 947 So.2d 499 (Fla. 3d DCA 2006).

Under Fla.Stat. 627.428, attorney's fees may be awarded to assignee of insured's third-party bad faith claim against insurer.  [Added 12/6/06]  --  Allstate Ins. Co. v. Regar, 942 So.2d 969 (Fla. 2d DCA 2006).

Fla.R.Civ.P. 1.525 applies to attorney's fee motions emanating from arbitration proceedings, and such motions served before entry of judgment are timely.  [Added 11/26/06]  --  Martin Daytona Corp. v. Strickland Construction Services, 941 So.2d 1220 (Fla. 5th DCA 2006).

Attorney's fee may be awarded in discharging lis pendens, per Florida Supreme Court.  [Added 11/19/06]  --  S and T Builders v. Globe Properties, Inc., 944 So.2d 302 (Fla. 2006).

Judge erred by enforcing law firm's charging lien in amount less than full contract amount owed to law firm by former client.  [Added 11/18/06]  --  Gossett & Gossett, P.A. v. Mervolion, 941 So.2d 1207 (Fla. 4th DCA 2006).

Florida Supreme Court rules on attorney's fee awards in guardianship cases and insurer-insured disputes.  [Added 11/14/06]  --  Heirs of a ward's estate may have standing to participate in guardianship proceedings concerning attorney's fee awards.  Hayes v. Guardianship of Thompson, 952 So.2d 498 (Fla. 2006).  No appellate attorney's fees to insured unless insured prevails on appeal.  Brass & Singer, P.A. v. United Automobile Ins. Co., 944 So.2d 252 (Fla. 2006).

Not including specific conditions of release in offer of judgment results in denial of attorney's fee award.  [Added 10/9/06]  --  Papouras v. BellSouth Telecommunications, Inc., 940 So.2d 479 (Fla. 4th DCA 2006).

Court may award attorney's fees for time spent litigating amount of fee award, where fees awarded as sanction.   [Added 10/6/06]  --  Bates v. Islamorada, Village of Islands, 939 So.2d 171 (Fla. 3d DCA 2006).

Florida Supreme Court approves rule permitting waiver of clients' rights under constitutional amendment regarding attorneys' fees in medical malpractice cases.  [Added 9/28/06]

    The Florida Supreme Court revised the Florida Rules of Professional Conduct (specifically, Rule 4-1.5(f)(4)(B)) by adopting a rule permitting clients in medical malpractice cases to waive the rights granted to them under Article I, Section 26 of the Florida Constitution.  Article I, Section 26 was added to the constitution in 2004 when voters approved an amendment entitled the "Medical Malpractice Claimant's Compensation Amendment," which provided that in medical malpractice cases being handled by a lawyer on a contingent fee basis the client "is entitled to no less than 70% of the first $250,000.00 in all damages received by the claimant, and 90% of damages in excess of $250,000.00, exclusive of reasonable and customary costs and regardless of the number of defendants."

    The Court adopted (with modifications) the proposed rule offered by the Florida Bar, electing to reject a proposal presented by former Chief Justice Stephen Grimes and other bar members.  The Court was of the view that the rights provided by Article I, Section 26 could be waived by an affected client.  The Court, however, declined to require judicial review of the waiver in every waiver.  The Court stated that "[t]he waiver form not only is extremely detailed but, importantly, sets forth the actual language of article I, section 26 and requires the client to specifically acknowledge that he or she (1) has been advised that signing the waiver releases an important constitutional right; (2) has been advised of the opportunity to consult with separate and independent counsel and to have the waiver explained or reviewed by a court; (3) agrees to an increase in the attorney fee that would otherwise be owed if the constitutional provision were not waived; (4) has three business days in which to cancel the waiver; (5) wishes to engage the named lawyer or law firm, but is unable to do so because of the constitutional limitation and therefore knowingly and voluntarily waives the constitutional limitation in consideration of the lawyer or law firm’s agreement to represent him or her; and (6) has selected the named lawyer or law firm as counsel of choice, could not otherwise engage their services without the waiver, and specifically states that the waiver is knowingly and voluntarily made" (footnote omitted).

    The Court described its modification of the form proposed by the Bar as follows:  "[W]e modify the form to require the client to acknowledge not only that he or she is agreeing to an increased fee, but also to specifically acknowledge the maximum contingency fee percentages currently set forth in rule 4-1.5(f)(4)(B)(i), up to which the lawyer and client may agree, without prior court approval, if the waiver is executed.  Under the rule as adopted, judicial approval is mandatory only where a client waives his or her rights under article I, section 26 and agrees to a contingent fee in excess of the maximum contingency fee percentages set forth in rule 4-1.5(f)(4)(B)(i).  In such a case, court approval under the process set forth in [existing] rule 4-1.5(f)(4)(B)(ii) is necessary" (emphasis in original).

    Two justices dissented "from the rule's failure to provide for judicial review of the client's waiver."

    The amendments to Rule 4-1.5(f)(4)(B) as approved by the Court is effective immediately (September 28, 2006).  In re: Amendment to the Rules Regulating The Florida Bar -- Rule 4-1.5(f)(4)(B) of the Rules of Professional Conduct, 939 So.2d 1032 (Fla. 2006).

Cause of action for breach of fee sharing agreement among lawyers does not accrue until fee in underlying case has been collected.  [Added 9/27/06]  --  Barbara G. Banks, P.A. v. Thomas D. Lardin, P.A., 938 So.2d 571 (Fla. 4th DCA 2006).

Per Third DCA, Family Law Rule of Procedure 12.525 (re fee motions) applies to all cases pending on rule's effective date; conflict with other Districts certified.  [Added 9/8/06]  --  Montello v. Montello, 937 So.2d 1154 (Fla. 3d DCA 2006).

Fourth DCA affirms summary judgment against lawyer who failed to honor letter of protection.  [Added 8/3/06]  --  Koenig v. Charles S. Theofilos, M.D., P.A., 933 So.2d 1293 (Fla. 4th DCA 2006).

Lawyer who continues to represent multiple clients after conflict arises not entitled to fees for work performed after that time.  [Added 7/8/06]  --  James T. Butler, P.A. v. Walker, 932 So.2d 1218 (Fla. 5th DCA 2006).

Law firm may maintain retaining lien over files even absent court order or written contract.  [Added 7/8/06]  --  Shelowitz, Shelowitz, Terrell & Coffey, P.A. v. Peters, 931 So.2d 1059 (Fla. 4th DCA 2006).

First DCA rejects constitutional and other challenges to statutory attorneys' fee limits in workers' compensation cases.