Can you Recover Attorney Fees for Litigating the Amount of Attorney Fees?
By William F. Cobb January 11, 2021 Posted in Business Litigation Share
In 2011, an article was published in The Florida Bar Journal entitled “Revisiting the Standard Attorneys’ fee and Cost Provision. (See Vol. 85, No. 8 September/October 2011, pg. 48, James E. Foster, Esq. and Vincent Falcone, Esq.) The article begins with the conventional thinking of Florida attorneys who represent a prevailing party in a contract dispute that they are not likely to recover fees for litigating the amount of attorney fees, despite the fees and costs provision in the contract litigated. The article opines that the general fee and cost provisions contains simple language providing that the prevailing party is entitled to recover reasonable attorney’s fees and costs from the non-prevailing party. Essentially, the authors were alerting The Bar to the fact that the “general” fees and cost provision does not adequately protect the parties regarding “all” the fees and costs expended in the litigation. The article discusses some historical decisions and concludes with recommended two revised versions to the “standard” fee and cost provision in Florida.
Prior to 1993, courts in Florida were divided regarding whether or not prevailing parties were entitled to recover the attorney’s fees associated with litigating the amount of the fees subsequent to entitlement to fees being determined. In State Farm Fire & Casualty Co. v. Palma, the Florida Supreme Court provided guidance by ruling that attorney’s fees determining entitlement were recoverable, while attorney’s fees litigating the amount of those fees was not. The Palma decision addressed the express language of an insurance statute and not a contract.
The Palma Court did recognize that federal courts that have addressed the issue have not distinguished between entitlement to fees and the amount of fees, but have permitted fees for the entire time spent on the issue.
In 2012, The Fourth District Court of Appeals decided Waverly at Las Olas Condominium Association, Inc. v. Waverly Las Olas, LLC, a case in which a condominium owner sued the condominium association over parking spaces and the association filed a third-party complaint against the developer. The operative paragraph in the unit owners’ purchase agreement provided in part:
16. Litigation. In the event of any litigation between the parties under this Agreement, the prevailing party shall be entitled to reasonable attorneys’, paralegals’ and para-professionals’ fees and costs at all trial and appellate levels.
The developer argued entitlement to all attorney’s fees for the entire litigation, including the proceedings to determine the amount of fees, and the trial court agreed. The District Court sustained the ruling of the trial court finding the various causes of action focused on a common core set of facts and relied on the “any” litigation language broad enough to encompass the time spent litigating the amount and sustain the ruling. In footnote 2 of the opinion, the District Court cited to two 2010 cases where it had previously permitted “fees-for-fees” in the context of a sanction and a marital statutory award of fees, finding Palma simply did not apply.
In 2017, the Second District Court of Appeal decided Trial Practices, Inc. v. Hahn Loeser & Parks, LLP, 260 So.3d 167 (Fla. 2018) (quashed on other grounds) which involved a trial consultant’s action against a former client, Jack J. Antaramian. The law firm was substituted as a party following Antaramian’s death. The operative provision of the contract between Trial Practices and Antaramian provided in pertinent part:
prevailing party in any action arising from or relating to this agreement will be entitled to recover all expenses of any nature incurred in any way in connection with the matter, whether incurred before litigation, during litigation, in an appeal, . . . or in connection with the enforcement of a judgment, including, but not limited to, attorneys’ and experts’ fees.
Just as with Waverly, the trial court found that the contract provision was broad enough to include a recovery for the attorney’s fees for litigating the entitlement to and amount of attorney’s fees and costs. The opinion recognizes both the Florida Supreme Court and Second District Court of Appeals have recognized when parties seeking attorneys’ fees pursuant to a statute are not necessarily entitled to attorneys’ fees for litigating the amount, but distinguished Trial Practices, Inc. as the fees being awarded on the fee-shifting provision above contained within the Consulting Agreement, which it opined were broad enough to encompass the award of “fees-for-fees.” Further, the opinion recognizes that parties are free to contract on the issue of attorney’s fees and the court will not rewrite a contract, especially in order to relieve Trial Practices, Inc. from the result of its obligation under the Consulting Agreement. Of importance is the portion of the opinion where the court was not persuaded by the cases presented regarding the denial of “fees-for-fees” that relied upon attorney retainer agreements seeking fees from third parties, the usual circumstance, but recognized this was a direct contract between the parties to the action. It should be noted that the Florida Supreme Court quashed the decision regarding costs. (See footnote 2)
In 2019, the First District Court of Appeals decided Windsor Falls Condominium Association, Inc. v. Davis, an action between a condominium association and unit owner regarding past due assessments. The association prevailed but the trial court did not include the “fees-for-fees” being sought and appealed, claiming error by: 1) failing to include Rowe findings in the final judgment; 2) not awarding all costs incurred by Appellant; 3) not awarding attorney’s fees incurred in litigating the amount and reasonableness of fees; and 4) relying on the arbitrary opinion of Appellee’s expert to determine the award. The First District rejected the second and fourth issues without discussion. The “contract,” presuming the governing document for the association, provided in pertinent part that the unit owner was responsible for condominium assessments and the “costs of collection thereof, including Legal Fees.” The trial court had already determined the association was the prevailing party and the parties stipulated to the association’s entitlement to legal fees and costs. The opinion provides that the litigation over the amount of reasonable attorney’s fees did not constitute litigating the “collection” of condominium assessments and denied the third basis, remanding for further proceeds regarding Rowe findings.
Following Davis, the Fifth District Court of Appeal decided Bayview Loan Servicing, LLC v. Cross involving the voluntary dismissal of a foreclosure action and request for prevailing party attorney’s fees. The trial court allowed “fees-for-fees” finding the provisions in the loan documents were “broad enough to encompass fees incurred in litigation the amount of fees,” as set forth in Trial Practices, Inc. and Waverly as exceptions to the general rule that attorney’s fees incurred in litigating the amount of attorney’s fees to be awarded are not recoverable. In reversing, the court found three applicable contractual attorney’s fees provision in the note and mortgage, none of which includes such broad and undefined language analogous to the “any litigation” and “all expenses of any nature incurred in any way” language, as was present in Trial Practices, Inc. and Waverly. The court also found the fees provisions would not have authorized Bayview to recover “fees-for-fees” and therefore section 75.105(7) cannot function to allow Cross to recover such fees that were not authorized for Bayview in the contract.
Although following Waverly and Trial Practices, Inc. courts began to agree if the language of the contract was sufficiently broad to include “fees-for-fees” the fees were included in the award. Although Davis and Bayview provide for a clear analysis of the express contract language and its purpose to reject “fees-for-fees.” As a prevailing party under a reciprocal fees provision in a contract or proceeding under section 57.105(7) that you assess the contract as a whole regarding attorney’s fees and not the obvious “attorney’s fees” provision. There may be and often is broader language elsewhere in the contract discussing fees, costs, appeals, arbitration and other proceedings that may be of value. While Waverly and Trial Practices, Inc. allow for the opportunity to recover “fees-for-fees” in a contractual setting, they do not revise or modify the rule that you cannot get “fees-for-fees” on a statutory claim set forth in Palma. Remember, the federal rule is exactly the opposite. Sheet Metal Workers’ Int’l Ass’n v. Law Fabrication, LLC, 237 Fed. Appx. 543 (11th Cir. 2007).
The authors of the 2011 article were ahead of their time, or at least have been supported in their theory that contracts can be constructed in such a manner as to provide for “fees-for-fees” if artfully drawn. Providing for every recovery available to clients dictates that any contracts drafted should include sufficiently broad enough terms to include a potential for recovery of ALL fees.
For more information about the author of this blog, visit: https://www.cobbgonzalez.com/attorneys/william-f-cobb-esq/
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