A winning party to a lawsuit will inevitably seek recovery of prevailing party attorney’s fees from the losing side. In Florida, this usually comes through a motion to determine the winner’s fees and costs under Florida Rule of Civil Procedure 1.525, the final judgment, and the statute or contract allowing fee recovery. At this juncture, losing parties often do everything in their power to hinder execution of the judgment and recovery of fees and costs. This requires depositions, writs for execution and garnishment, and proceedings supplementary. Through these acts, losing parties cause significant additional attorney’s fees and costs. It is imperative to seek maximum recovery. If you have questions on obtaining maximum fee recovery, please contact Bernhard Law Firm at 786-871-3349, abernhard@bernhardlawfirm.com; www.bernhardlawfirm.com. Otherwise, here’s a basic approach:

First, analyze the contractual or statutory fee provision for scope. For example, the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) provides for prevailing party fees and costs “in any civil litigation resulting from an act or practice involving a violation of [FDUTPA].” § 501.2105(1), Fla. Stat. (2016) (emphasis added). The language of this provision is expansive in scope, covering nearly any type of activity in a lawsuit. Analysis shows that “the obvious purpose of [FDUTPA] is to make consumers whole for losses caused by fraudulent consumer practices . . . These aims are not served if attorney’s fees are not included in the protection.” BMW of N. Am., Inc. v. Krathen, 510 So. 2d 366, 368 (Fla. 4th DCA 1987) (holding that to FDUTPA prevailing party entitled to attorney’s fees spent to resist the post-judgment motions and enforce the judgment). This is generally the purpose for most statutes and contracts providing for prevailing party fee recovery.

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This purpose is not served unless a prevailing party is reimbursed for all attorney’s fees and costs spent both in attaining judgment and enforcing it. Id.; see also Sonara v. Star Cas. Ins. Co., 603 So. 2d 661, 664 (Fla. 3d DCA 1992) (holding insurer is liable for attorney fees incurred in pursuing claim for fees even after it has paid benefits); Planes v. Planes, 477 So. 2d 42, 42 (Fla. 3d DCA 1985) (holding party entitled to fees for attorney work rendered to enforce final judgment).

Thus, Florida law provides that where prevailing party fee provisions cover “any litigation” or similar language, the Court should award any fees and costs spent in litigating both liability/damages and the attorney fee amount itself. Waverly at Las Olas Condo. Ass’n, Inc. v. Waverly Las Olas, LLC, 88 So. 3d 386, 389 (Fla. 4th DCA 2012) (holding trial court properly awarded fees for litigating the fee amount under fee provision authorizing fees for “any litigation”); D’Alusio v. Lamb, LLC, 36 So. 3d 842, 848 (Fla. 2d DCA 2010) (holding costs of litigating the reasonableness of the amount, such as expert costs, are also recoverable from the nonprevailing party). Likewise, Florida law provides that the fees and costs spent to determine the reasonableness of the amount of fees are taxable and collectable from the losing party. See Travieso v. Travieso, 474 So. 2d 1184, 1186 (Fla. 1985) (holding expert witness fees may be taxed as costs for a lawyer who testifies as an expert as to reasonable attorneys fees).

Second, in assessing attorney’s fees, the Court should consider the losing party’s willful refusal to comply with terms of a final judgment and other court orders. Meloan v. Coverdale, 525 So. 2d 935, 937 (Fla. 3d DCA 1988) (holding where party must seek judicial enforcement of a final judgment because of other party’s willful refusal to comply, the Court may consider the recalcitrant party’s disregard of court orders in assessing attorney’s fees); Geronemus v. Geronemus, 599 So. 2d 256, 257 (Fla. 4th DCA 1992) (holding court erred by denying fees on enforcement without considering all factors, including prior contempt and whether on party’s actions compelled the other party to resort to the courts for a remedy). Inappropriate behavior to delay fee recovery should be met with a higher ultimate fee recovery. Id.

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Third, the Court should consider the attorney’s engagement terms and whether there is a multiplier. For example, where counsel is hired pursuant to a contingency fee contract, the Court may enhance the fee recovery by applying a contingency fee multiplier of up to 2.5 times the original fee. TRG Columbus Dev. Venture, Ltd. v. Sifontes, 163 So. 3d 548, 552 (Fla. 3d DCA 2015). In determining a contingency multiplier, the Court should consider the following factors: (1) whether the relevant market requires a contingency fee multiplier to obtain competent counsel; (2) whether the attorney was able to mitigate the risk of nonpayment in any way; and (3) whether any of the factors set forth in Rowe are applicable, especially the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client. Sifontes at 552.

The Court should then grant all fees and costs evidenced, with a maximum multiplier from any contempt, perjury, efforts to stop judgment and execution, and contingency arrangement. If you have questions on obtaining maximum fee recovery, please contact Bernhard Law Firm at 786-871-3349, abernhard@bernhardlawfirm.com; www.bernhardlawfirm.com.

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