A guide to Prevailing Party Attorney's Fees in Florida
How can you get prevailing party attorney's fees?
You want to sue someone in Florida. Legal actions are expensive. How can you get the court to award you attorney's fees and costs in litigation? First, there are two ways to get attorney's fees and costs in Florida: by statute or by contract. Absent either of those two provisions, you pay to play! This is the so called American Rule.
Law makers will often include an attorney's fees provision in a statute as a penalty for the party held liable. For example, where the cause of action falls under the condominium statutes, homeowner's association statues, or co-op statutes, the legislature has included a provision for prevailing party attorney's fees.
Where the parties enter into a contract, the parties are free to include a term that provides prevailing party fees for the prevailing party who is forced to bring or defend an action under the contract, most usually for breach of contract. The language that is included in this provision must be specifically worded to provide for (or not provide for) attorney's fees after judgment is entered in a case. The parties to a contract must decide if fees will be available for the determination of the fees and for any appeals that may be taken by either party. Sometimes it is possible to win the case and fees, only to go deep into your pocket for the rest of the litigation.
Pleading fees is mandatory
Failure to plead fees will be fatal to a claim for attorney's fees. Florida case law has developed the proper procedure for pleading fees in both the complaint and in the answer and counterclaim. Including a claim for attorney's fees, but doing so in the wrong manner, will also be fatal to any claim for attorney's fees. Protecting your claim for prevailing party attorney's fees is vital to your claim. Make sure it is properly done!
Other ways to make a claim for Attorney's Fees
If you have a claim that does not give you a right to make a claim for prevailing party attorney's fees, there may be other ways to get the attorney's fees. For example, an offer of judgment or offer of settlement includes an award of attorney's fees if the offer is properly made and rejected so long as other conditions are met at trial. Another example is Florida Statute 57.105, which awards attorney's fees to the prevailing party when an action is considered frivolous. This is a powerful tool that must be used properly. Litigants are urged to consider all possible methods of an award of attorney's fees if they are forced to litigate or defend.
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