Get Prevailing Party Fees for Winning, After Losing the Case by Dismissing?

The general rule in Florida is that you pay your own attorney’s fees for litigation. In some circumstances, a statute or contract between parties provides that the litigation loser pays the winner’s fees, but this is contrary to the general rule. The winner is usually determined by whoever gets a judgment in their favor, or if one party gives up through dismissal (the plaintiff) or consent/default judgment (the defendant). Sometimes there is a middle road, where a lawsuit becomes moot through changing events—a challenged statute is repealed; a minor comes of age; a deadline passes; a defendant has a change of heart and gives in outside of court. In this last example, what happens to the case? Who is the winner? Perhaps more importantly at this juncture, who pays all the attorney fees? Bernhard Law Firm handles fee disputes, evidentiary hearings, and appeals. If you have any questions about fees and fee determinations, please contact Bernhard Law Firm at 786-871-3349, abernhard@bernhardlawfirm.com, http://www.bernhardlawfirm.com.

Bernhard Law FirmUnder Florida law, where a defendant renounces its defense and voluntarily provides the relief sought by the plaintiff in the action, thereby mooting the complaint, this is the functional equivalent of a judgment or verdict in favor of the plaintiff. Bessard v. Bessard, 40 So. 3d 775, 778 (Fla. 3d DCA 2010) (holding where defendant renounced position for which injunctive relief was sought, thereby necessarily mooting the complaint, it was the functional equivalent of a judgment or verdict in favor of the plaintiffs, entitling plaintiffs to prevailing party fees and costs); Augustin v. Health Options of S. Fla., Inc., 580 So. 2d 314, 315 (Fla. 3d DCA 1991) (finding that when the defendant changed its position in the matter and made full payment as prayed for in the plaintiff’s complaint, it necessarily mooted the complaint and was the functional equivalent of a judgment or verdict in favor of the plaintiff entitling the plaintiff to an award of attorney’s fees as the prevailing party); see also Smith v. Adler, 596 So. 2d 696, 697 (Fla. 4th DCA 1992) (holding that “it is [the] results, not [the] procedure, which governs the determination” of which party prevailed for purposes of awarding attorney’s fees).

Under these circumstances, the plaintiff is entitled to prevailing party attorney’s fees and costs if a contract or statute provides for prevailing party attorneys fees. Id. This is so even if the case must be dismissed for mootness. Id. This is so even if the plaintiff must dismiss its own case, and thereby technically appears to have lost the case. Id. The purpose of this exception to the rule is to prevent a defendant from unfair gamesmanship. If a defendant engages in costly litigation over an extended period, only to relinquish on the eve of an impending negative judgment, the plaintiff would be unjust forced to hold the bill. Defendants should keep this rule in mind when weighing possible settlement and deciding how long to hold out on a bad case. Bernhard Law Firm handles fee disputes, evidentiary hearings, and appeals. If you have any questions about fees and fee determinations, please contact Bernhard Law Firm at 786-871-3349, abernhard@bernhardlawfirm.com, http://www.bernhardlawfirm.com.

Bernhard Law Firm

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