Everyone wishes their Attorney's fees and costs were covered by the losing party at trial. However, even in the case in which the parties had an agreed under the contract subject to the litigation that the fees and costs would be paid to the prevailing party, the Florida Supreme Court had ruled in State Farm Fire  & Casualty Co. v. Palma, 629 So.2d 830 (Fla.1993) that the fees reimbursed by to the party did not include the fees for the dispute of the amount. In short, any litigation relating to the amount of the attorney's fees would not be reimbursed.

In Waverly at Las Olas Condominium Association Inc. v. Waverly Las Olas LLC, 88 So.3d 386 (Fla. 4th DCA 2012), the court ruled differently. It held that were the intent in the agreement is clear and unambiguous, the prevailing party may be reimbursed for the litigation part of the fees. The client would thus be reimbursed for any litigation relating to the fees that arose out of the litigation itself - fee dispute of fees. The key element for this to happen is that the contractual clause must be broad enough to incorporate this intent and non-ambiguous.

So what's left? The challenge of the reasonableness of the fees. It also leads us to the situation in which fees are recoverable under a Statute. In such a case, the Waverly exception would not apply and the Palma case would. This means that the litigation of the fees would not be recoverable fees by the prevailing party.

When analyzing a case, we will look to see whether we can recover the attorney's fees and costs during litigation to try to make the client as whole as possible. In certain circumstances, it may be requested and awarded by the judge as well, independently from the agreement.

If you have a case that requires litigation, call us so we can help! (239)963-6043

*This is general information not intended as legal advice. It does not create a Client-Attorney Agreement or privilege. Please contact us directly to discuss your situation as every case is different and requires an individual analysis.