When Are Your Civil Litigation Attorneys’ Fees Recoverable?

Litigation can be a time-consuming, stressful, and often expensive process. A civil dispute can drag on for years, causing out-of-pocket expenses in attorneys’ fees and other costs (including filing fees, expert fees, process servers, etc.) to pile on. However, there are certain ways under Florida Law in which a litigant may be entitled to recover its attorneys’ fees and/or costs. Indeed, whether such recovery is available could ultimately shift a business litigant’s entire strategy in the lawsuit.


The general rule in Florida is that the recovery of prevailing party attorneys’ fees is available through “contract or statute.” In contract disputes, the subject contract may have a prevailing party attorneys’ fee provision. However, what if the contract is silent? What recourse is available to a party in a lawsuit where the parties did not have a contract?  


There are several types of civil actions under Florida Law that provide for this potential recovery, including certain lawsuits regularly handled by our firm involving lien foreclosure actions under condominium law (Chapter 718, Florida Statutes) and construction lien actions filed under the mechanics’ lien statute (Chapter 713, Florida Statutes). Prevailing party attorneys’ fees may also be available to a unit owner or a condominium association where one party is seeking to enforce the association’s governing documents.  


But what if there is no applicable contract or statute? In a complex multi-party litigation, it could be possible to secure an assignment of another party’s contract rights. For example, if a plaintiff (Party A) sues a defendant (Party B) for damages, and then Party B sues another third-party defendant (Party C) for those same damages, Party A could potentially obtain an assignment from Party B (either as part of a settlement for their claims or for some other consideration) and go after Party C directly. If Party B had a contract with Party C with an attorneys’ fee provision, Party A could potentially recover its fees and costs from Party C pursuant to the assignment even though Party A never contracted with Party C directly.  


Another possibility is to serve a Proposal for Settlement (a “PFS”), also known as an “Offer of Judgment.” This statutory procedure requires the receiving party to either accept a proposed settlement offer within 30 days, or risk having to pay the serving party’s attorneys’ fees incurred starting on the date the PFS is served. When a defendant ignores or rejects a plaintiff’s PFS, and the plaintiff secures a final judgment at trial that is at least 25% more than the amount of the PFS, then the defendant will be obligated to pay the plaintiff’s reasonable attorneys’ fees and costs. Alternatively, when a plaintiff rejects or ignores a defendant’s PFS, and then obtains a final judgment that is at least 25% less than the PFS, the plaintiff will be required to pay the defendant’s reasonable attorneys’ fees and costs. A timely and well-considered PFS could place enormous pressure on the plaintiff or defendant to consider early settlement, insofar as no party wants to risk having to pay for the other side’s fees incurred leading up to and during a civil trial. 


Attorneys’ fees can also be awarded as sanctions. Pursuant to Florida’s 57.105 statute, Florida litigants are provided with an opportunity to place an opposing party on notice of frivolous or meritless claims, and if the improper claim is not withdrawn within 21 days, then the serving party may file a motion with the Court requesting sanctions. If the claim is not withdrawn and the judge ultimately grants the 57.105 motion, the receiving party may be ordered to pay for the other side’s attorneys’ fees. In addition, Courts have the discretion to enter sanctions against litigants for bad-faith discovery practices and/or willful disregard of Court Orders. 


This is not an exhaustive list of the potential ways in which attorneys’ fees and costs may be recovered during the course of a lawsuit, and it is important to consult with experienced business litigation attorneys in order to ensure that all potential methods of such recovery are fully explored. To learn more, contact Jacob Epstein at jepstein@haber.law.