Can I Recover My Attorney's Fees?

CAN I RECOVER MY ATTORNEY'S FEES?

By: Larry Leiby, Esq. and Harry Malka, Esq.

About the Authors:

Larry Leiby, Esq. was the founder and first chairman of the Florida Bar Construction Law Committee in 1976. He is the author of the Florida Construction Law Manual. He is Board Certified in Construction Law and was on the Construction Law Certification Committee that creates and grades the tests for construction law board certification. He was awarded the lifetime achievement award by the Florida Bar Construction Law Committee and teaches construction law at the Florida International University College of Law. He can be reached at leiby@mkpalaw.com.

Harry Malka, Esq., a founding member of the law firm of MALKA & KRAVITZ, P.A., is Board Certified in Construction Law by the Florida Bar. This certification is the highest recognition of competence provided by the Florida Bar. Mr. Malka is also rated "AV-Preeminent" by Martindale-Hubbell, the highest rating available for professional ability and ethical standards. Mr. Malka has focused his practice on matters related to construction law, for nearly 15 years, including contract negotiation, litigation, arbitration, and mediation of construction disputes. He can be reached at harry@mkpalaw.com.

For more information about the law firm of MALKA & KRAVITZ, P.A. and its attorneys, please visit www.mkpalaw.com.

As anyone who has been involved in litigation knows, attorney's fees can get very expensive in a long legal battle. Sometimes, attorney's fees can even exceed the amount of the initial claim! So, for obvious reasons, we are often asked the question by our clients when involved in litigation: Can I Recover My Attorney's Fees? The answer can be quite simple or it can be very complicated.

Simply stated, attorney fees may generally be awarded only if the contract that is at issue allows for recovery of attorney's fees or if an applicable statute allows for recovery of attorney's fees. This means that if you are the prevailing party at the end of the litigation (after a trial or an appeal), you may be awarded your attorney's fees only if your contract contains a clause providing that the prevailing party will recover its attorney's fees from the non-prevailing party. Alternatively, if you are enforcing your lien rights, Florida's Construction Lien Law provides that the prevailing party will recover its attorney's fees from the non-prevailing party.

That was the easy part. However, complications can arise when a contract is not clear as to what type of dispute is covered by the attorney fee provision. Also, the determination of which party is the "prevailing party" can also be uncertain when seeking to recover attorney's fees pursuant to your contract or Florida's Construction Lien Law.

When drafting the attorney fee provision in your contract, care should be taken as to what would trigger the ability to recover fees. A good example of a contract provision that did not give rise to prevailing party attorney's fees in a particular dispute is found in Florida Hurricane Protection and Awning, Inc. v. Pastina, 2010 WL 3488714 (Florida 4 th DCA Sept. 8, 2010), where the Owner sued a Contractor for breach of contract relating to the installation of hurricane shutters. The Owner obtained a judgment against the Contractor. However, the Court did not award attorney's fees to the Owner because the attorney's fees provision in the contract stated as follows: "[Owner] is responsible for all costs of collection including Attorney's fees." The court held that the litigation was not related to a collections action. Instead the litigation was about a breach of contract. The court further held that the provision would have given both parties the right to recover attorney's fees (even though the provision only says that the Owner was liable for the fees) only in situations where the lawsuit between the parties concerned collections of money due under the contract.

There are also numerous cases where Courts have refused to enforce attorney's fees provisions that are unclear or ambiguous. For example, in Islander Beach Club Condo. v. Skylark Sports, L.L.C., 975 So.2d 1208, 1211 (Fla. 5th DCA 2008), the Court found that an attorney's fee provision in a lease was not enforceable because the "provision as written clearly makes no sense."

At the conclusion of the litigation (in the event the dispute is not settled), the Court will have to decide (i) whether the contract provision is clear and unambiguous, (ii) whether the contract provision encompasses the dispute in the litigation, and (iii) which party prevailed on the "significant issues" tried before the court.

In light of the potential expense of attorney's fees in litigation, it is highly recommended that you have an experienced attorney carefully review your contracts before you sign them.