Entitlement and Reasonableness
Attorney’s fees awards happen as part of a two prong process. First, you prove that you are entitled to attorney’s fees. Then, you demonstrate that the fees are reasonable. Entitlement means there is a basis for the fees and you properly plead them. Reasonableness means that the fees are, well, reasonable.
Both “entitlement” and “reasonableness” are terms of art. As a result, the Florida courts define these terms in the case law. You must know how “your” court defines these terms.
Either a contract or statute entitles you to fees. The rules require you to include this claim in your pleadings to the court. So, you make your claim for fees at the beginning of your case. Therefore, even where fees are available to you, fees are not automatic.
This cannot be fixed later. You have to ask for them and ask for them from the beginning of the case. Otherwise, you waive the right to collect them.
Rule 1.525 and 30 days
Additionally, you do not automatically get an award of fees when the case is over. After you prevail, the rules require you to file a motion to claim fees. The rules require you to act quickly.
Rule 1.525 of the Florida Rules of Civil Procedure governs Motions for Costs and Attorney’s Fees. Right now, the Rule gives you 30 days to file this motion after the entry of a judgment. But, the rules change. You must always check the rule!
First, you must prove that you are entitled to an award of fees.
The losing party might object to your claim that you are entitled to fees. If this happens, you file a motion with the court to have the court decide. After the motion is filed, you set it for hearing. Then, the court hears your motion and rules on it.
Your motion argues the basis for your claim to entitlement. Attorney’s fees are only available by agreement (contract) or by statute. Your motion argues which one applies to your case.
You must properly plead fees from the beginning.
More often, however, the losing party contests entitlement because you failed to properly plead fees in your complaint, answer, or counterclaim. These are pleadings. The rules require you to include a claim for fees in your pleadings.
Then, your motion argues that you properly plead attorney’s fees in your court filings. The courts require you to put the opposing party on notice of your intent to make a claim for prevailing party fees. The other party may choose a different strategy if they know that fees are also at issue.
The courts in Florida have created a large body of case law which outlines how to properly plead entitlement to fees. Once you prove both of these, the losing party argue the that you are not entitled to fees.
Then, you must prove the fees you seek are reasonable.
The next step is to prove that the fees you seek are reasonable. You do this by applying the Rowe factors to the facts. The Rowe factors are outlined in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (1985).
The court conducts an evidentiary hearing to determine reasonableness. At this hearing, you must present an expert witness to testify that your fees are reasonable. The losing party also gets to present an expert witness to testify that the fees are not reasonable. When the hearing is over, the court will determine the amount of fees to which you are entitled.
This simple outline belies the difficulty in the actual process. It is designed to provide an overview of the hurdles you face in getting an order for fees. Future blog posts will go deeper into the process.