Turning Complex Issues Into Simple Solutions Reach Out Now

Attorney’s Fees in Contract Litigation

Our clients at The Spence Law Firm always want to know if there is a way to get back the attorney’s fees they will have to pay to pursue a contract lawsuit. Under Florida law, there are several ways to win back the attorney’s fees incurred. The downside is there is no way to get reimbursed for attorney’s fees incurred until after the lawsuit is over, provided that you win the lawsuit.

Florida Law on Recovery of Attorney’s Fees in Contract Lawsuits

Under Florida law, we have adopted what is known as the “American rule” of attorney’s fees, which means attorney’s fees are awarded only if authorized by the parties’ contract or by a statute or court rule. Contrast the American rule with the “British rule,” under which the prevailing party typically receives their attorney’s fees automatically as part of the judgment.

So there are two basic ways that a party can recover their attorney’s fees. First, if the parties’ contract expressly states that one or both parties may recover attorney’s fees. Second, if there is an applicable statute or court rule that allows one or both parties to recover attorney’s fees.

It’s important to discuss with an attorney whether or not to include an attorney’s fee provision in your particular contract. On the one hand, it can deter frivolous claims by the other side. But on the other hand, should you breach the contract, the other side has incentive to sue you, as they can potentially recover their attorney’s fee should they do so.

Specific Claims That Allow the Recovery of Attorney’s Fees

Listed below are some of the more well known examples in which the Florida legislature has allowed for the prevailing party to recover attorney’s fees by law.

Landlord – Tenant disputes
Home Owner’s Association disputes
Disputes that involve the Florida Deceptive and Unfair Trade Practices Act.
Disputes in which an insured prevails against an insurance company.
Divorce and family law cases.
Disputes related to discovery in civil litigation matters
Disputes related to non-compete and non-solicitation agreements

The Florida legislature has provided two other methods by which parties may potentially recover their attorney’s fees: Florida Statutes section 57.105 and Florida Statutes section 768.79.

Florida Statutes Section 57.105 allows a party to recover attorney’s fees for defending against “frivolous” claims or lawsuits. If a party files a document that is not supported by relevant facts or is clearly barred by existing law, the other party can

file a motion seeking recover of their attorney’s fees incurred in responding to and prevailing over the frivolous claim or defense asserted.

Proposals for Settlement and Offers of Judgement

Florida Statutes Section 768.79 and Florida Rule of Civil Procedure 1.442 establish what are known as “offers of judgement” or “proposals for settlement.” A plaintiff may serve a proposal on a defendant, in which the plaintiff makes a monetary offer to the defendant. If the defendant accepts, then the case is over and the parties have settled the case. If the defendant declines the offer, however, and the plaintiff obtains a judgment that is at least twenty-five percent greater than the amount offered, the defendant is required to pay the Plaintiff’s attorney’s fees from the date of the rejection through trial. Similarly, the defendant may serve a proposal for settlement on the plaintiff. If the plaintiff accepts, the case is over. If the plaintiff rejects the offer, and after trial the amount of the judgment obtained by plaintiff is at least twenty-five percent less than the defendant’s offer, the plaintiff is required to pay the defendant’s attorney’s fees incurred from the date of the rejection through trial.

Attorney’s Fees in Contract Litigation