In Florida there are generally 4 bases to obtain attorney’s fees as damages in a lawsuit. The general rule also known as the “American Rule” is that each party bears its attorneys fees in litigation, it is the default rule in Florida. However, here are the exceptions to that rule.
1. Statutory Basis for Attorney Fees
Any number of statutes providing for attorney’s fees for prevailing parties. Examples of prevailing party attorney fee statutes can be found for the following claims:
Non Exhaustive List- Some of the big ones are:
Foreclosure of Construction Lien/Construction Bond 713.29
Florida Civil Theft Statute 772.11
2. Attorney Fee Allocation by Contract
A contract between two parties can allocate responsibility for attorney’s fees should litigation arise out of the contract.
3. Offer of Judgment/Proposal for Settlement
This is a special statute in Florida, Statute 768.79 and Florida Rule of Civil Procedure 1.442.
It is a somewhat complicated rule in Florida, so I will oversimplify.
BY PLAINTIFF- A Plaintiff can make an offer to accept a lump sum amount from a defendant. Defendant has 30 days to accept. If accepted, then case over. If unaccepted, Plaintiff may be awarded its attorneys fees only if Plaintiff recovers a judgment of 25% GREATER than Offer. Rationale behind this is that Plaintiff, by making an offer of at least 25% less than what was awareded, made a presumptively reasonable offer, and Defendant’s failure to accept was unreasonable and caused the litigation to continue unnecessarily, therefore the law says Defendant should pay the attorney’s fees incurred after offer was made.
BY DEFENDANT- Likewise, a Defendant can make an offer to tender a lump sum amount to the Plaintiff. Plaintiff has 30 days to accept. If accepted, then case is over. If unaccepted, Defendant may be awarded its attorney fees only if Defendants wins judgment of at least 25% less of Offer. Rationale behind this is that Defendant by making an offer of at least 25% greater than what was awareded, made a presumptively reasonable offer, and Plaintiff’s failure to accept was unreasonable and unnecessary caused the litigation to continue, therefore law says Plaintiff should pay attorney’s fees incurred after offer was made.
4. Wrongful Act Doctrine – is a Florida common law basis for attorney’s fees.
[W]here the wrongful act of the defendant has involved the claimant in litigation with others, and has placed the claimant in such relation with others as makes it necessary to incur expenses to protect its interests, such costs and expenses, including reasonable attorney’s fees upon appropriate proof, may be recovered as an element of damages.
Northamerican Van Lines, Inc. v. Roper, 429 So. 2d 750, 752 (Fla. 1st DCA 1983); see also City of Tallahassee v. Blankenship & Lee, 736 So. 2d 29, 30 (Fla. 1st DCA 1999). Attorney’s fees awarded pursuant to the wrongful act doctrine are special damages, and therefore, must be specifically pled. See Winselmann v. Reynolds, 690 So. 2d 1325, 1328 (Fla. 3d DCA 1997); Fla. R. Civ. P. 1.120(g).
Simply put, if someone caused you to be involved in litigation with a third-party, you may recover attorney fees from that person since they are responsible for the basis for the lawsuit you have against a third party.
A and B are neighbors. A becomes aware that a structure on B’s property encroaches on to A’s property. A sues for encroachment. B sues the Surveyor used by B when he, B, purchased the property, and who was negligent by failing to identify the encroachment in his survey. B can seek attorneys fees from Surveyor that it is incurring to defend A’ s lawsuit.
Under the wrongful act doctrine, the attorney’s fees must be plead specifically as an element of damages.