8 FLPRAC S 16 20 9-27-09 1755 PDF

8 FLPRAC § 16:20 Page 1
8 Fla. Prac., Constr. Law Manual § 16:20 (2008-2009 Ed.)
West's Florida Practice Series TM

Current through the 2008-2009 Edition
Construction Law Manual
Larry R. Leiby
Chapter
16. Remedies
§ 16:20. Pleading and proof of attorney fees
West's Key Number Digest

West's Key Number Digest, Appeal and Error 119, 984(5)
West's Key Number Digest, Costs 194.14, 194.18, 194.44, 194.50, 198
West's Key Number Digest, Federal Civil Procedure k 2767, 2810 to 2830, 2847
Legal Encyclopedias
C.J.S., Appeal and Error §§ 136, 775
C.J.S., Costs §§ 126, 128, 131 to 132, 146
C.J.S., Federal Civil Procedure §§ 1360, 1371 to 1376, 1381 to 1390
One court has said that there seems to be no end to the myriad situations involving the
right to prevailing party attorney fees.[1] Attorney fees are generally recoverable only if there
is a specific statute that allows for recovery of fees,[2] the parties have an agreement that calls
for the recovery of fees, or there is bad faith conduct supported by detailed factual findings
describing the specific acts of bad faith conduct that resulted in the unnecessary occurrence of
attorney fees.[3] Where the wrongful act of the defendant has involved the claimant in litiga-
tion 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 attor-
ney's fees upon appropriate proof, may be recovered as an element of damages. This is called
the “wrongful acts doctrine.”[4]
Pleading Attorney Fees
Where attorney fees are sought, the party seeking such an award must specifically allege
and request the award of attorney fees in the pleadings.[5] Where federal and state claims are
involved, Florida procedure applies to the determination of entitlement to attorney fees.[6]
The failure to set forth a claim for attorney fees in a pleading seeking affirmative relief (e.g.,
complaint, answer, counterclaim) constitutes a waiver, but failure to set forth the claim in a
© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

defensive motion does not constitute waiver if the time for filing the answer has not passed.[7]
However where a party has notice that an opponent claims attorney fees, and does not object
to the lack of pleading, there may be acquiescence that would act to waive the requirement to
plead attorney fees.[8] In federal court attorney fees are recoverable for defense of a counter-
claim without a demand for attorney fees in the answer to counterclaim under Federal Rule
54(c) Fed. R. Civ. P.[9] An affirmative request for attorney fees was held waived when it was
not pleaded in an answer.[10] Where the request in the pleadings for attorney fees is not art-
fully drafted, that request may still provide sufficient notice to the opposing party in order to
support the award of fees.[11] Failure to identify the proper statute does not usually preclude
recovery.[12] However, where fees were sought pursuant to Florida Statute 57.105(1) (and not
the contract) and the other party filed a voluntary dismissal, it was held that the failure to
plead fees pursuant to the contract precluded recovery of fees.[13] Where the basis of recov-
ery of attorney fees is the “wrongful acts doctrine” the fees are special damages and the basis
for entitlement to fees must be pleaded.[14]
Parties do not create an implied contract for award of attorney fees by each party request-
ing fees from the court, where no contract or statute otherwise supports an award.[15]
However, in an arbitration where the contract adopts the AAA Construction Industry Rules,
Rule R-44(d), an argument exists that the rules, as part of the agreement, provide that fees
may be awarded if each party requests them.
Pleading attorney fees in order to put the opposing party on notice of the claim is applic-
able to a dispute that is ordered to arbitration as well. In one case, a party filed a demand for
arbitration. The opposition ignored it. The claimant filed suit seeking to compel arbitration,
which the court compelled. However, there was no claim for attorney fees made in either the
petition or the answers in the action seeking to compel arbitration. In the arbitration proceed-
ing there was no agreement to submit the fees to arbitration, thus attorney fee issues were re-
served to the court. After the arbitration award (which resulted in no recovery) the respondent
filed a motion in court to recover attorney fees (pursuant to statute). The court determined that
the failure to seek attorney fees in the answer to the petition to compel arbitration precluded
the ability of the court to award attorney fees.[16]
Where the plaintiff voluntary dismisses the case before the defendant has a chance to an-
swer, attorney fees are awardable provided that entitlement is based upon a statute or agree-
ment,[17] and provided that fees are sought in a motion filed prior to or within 30 days after
the dismissal.[18] Likewise, fees are awardable where the plaintiff voluntarily dismisses the
case after the defendant has filed a motion to dismiss although the motion to dismiss does not
contain a plea for attorney fees, provided that entitlement is based upon a statute or agree-
ment.[19] The failure to object to the failure to plead entitlement waives any objection to the
failure to plead a claim for attorney's fees.
A claim for entitlement to attorney fees cannot be raised for the first time in a post-
judgment motion.[20] Where the plaintiff voluntary dismisses the case after the defendant an-
swers and the answer does not contain a plea for attorney fees, they are waived.[21]
There are two exceptions recognized to the requirement to plead entitlement to attorney

fees. The first is where the opponent, by its conduct, recognizes or acquiesces to the claim for
attorney fees or otherwise fails to object to the failure to plead entitlement to attorney
fees.[22] A party failed to properly plead attorney fees where it filed an unsigned motion to
amend a pleading which included a plea for attorney fees, but did not state the legal basis for
the request, and did not include a request for fees in the pretrial statement or pretrial order. It
could not be said that the opposing party was put on notice so as to fall under the exception to
Stockman v. Downs.[23] In another case, a party sought attorney fees for the first time in a
motion filed shortly before the case was set for trial on the basis of fees being provided to the
other party in the contract. This was determined to be insufficient.[24] The second exception
to the requirement to plead attorney fees is when fees are sought pursuant to either Florida
Statute 57.105(1) or 768.79.[25]
Prevailing Party
Many contracts and some statutes authorize recovery to the prevailing party. At one time
the prevailing party was determined simply as the plaintiff who recovered something or the
defendant who was not required to pay anything. It was a net judgment rule. That rule began
giving way to a more reasoned approach to determination of the prevailing party. The U.S.
Supreme Court has held that a prevailing party is one that “succeeded on any significant claim
affording it some of the relief sought.”[26] The prevailing party may now be a defendant who
is only required to pay a little or pay the same or less than was offered prior to the start of lit-
igation.[27] The prevailing party is the party that prevails on the significant issues in the li-
ation. The focus of the trial court in making such a determination must be on the result ob-
tained.[28]
While the Florida Second and Fifth District Courts of Appeal allow for the court to find a
tie and not award prevailing party attorney fees based on compelling circumstances,[29] the
Third and Fourth Districts hold that there must be a prevailing party.[30]
Provisions in ordinary contracts awarding attorney fees and costs to the prevailing party
are generally enforced.[31] However, in one case it was held that the Florida Supreme Court's
"significant issue" test for prevailing party attorney fees cannot be contractually modified. In
that case the agreement between the parties stated that a party may not be considered a pre-
vailing party (for attorney fee purposes) if its recovery shall be less than 75% of its claim
amount. The court found that the 75% provision was not enforceable with respect to the
court's determination of who prevailed on the significant issues for purposes of assessing at-
torney fees.[32]
In a case where a contractor filed a $40,688.92 claim of lien against an owner and sub-
sequently prevailed at trial, the court imposed a lien for the unpaid balance of $16,024.07
(after credits were applied). As the prevailing party in the lawsuit, the contractor was entitled
to attorney's fees under Fla. Stat. 713.29. The developer appealed the award claiming that the
lower court erred by not adjusting the fee award based on the extent of success achieved by
the contractor's attorney, presumably in reducing the claim of over $40,000.00 to a judgment
of just over $16,000.00. The First District Court of Appeal reversed the attorney fee award
and instructed the trial court to enter a revised award which takes into consideration the suc-
cess achieved by the developer's attorney.[33] Where there is a claim and a compulsory coun-

terclaim, the court should not consider each claim as a distinct claim upon which there could
be different prevailing parties.[34]
While a court may be obliged to award fees to a prevailing party, the court has the discre-
tion to determine what fees were reasonably expended, and to apply the factors in assessing
fees set forth in the Code of Professional Responsibility. An award of all fees sought was re-
versed with directions to the trial court to consider whether fees spent on two unsuccessful ap-
peals were to be awarded.[35]
Where there is an applicable prevailing party attorney fee provision, the first case is dis-
missed by the Plaintiff, a second case is filed, and the Plaintiff prevails or favorably settles the
second case, the prevailing party on the first dismissed case is still entitled to recover attorney
fees for the first dismissed case.[36]
Parties had a prevailing party attorney fee clause in their contract. After trial fees were
held recoverable for claims on which the party prevailed. Fees were held not recoverable for a
claim on which the party did not prevail, nor on claims not within the scope of the contractual
attorney fee provision.[37]
A prevailing party lienor pursuant to Fla. Stat. 713.29 is a lienor who recovers more than
was offered pre-suit as a consequence of policy considerations with respect to the statutory
remedy. However the same rule does not necessarily apply to a claim for contractual prevail-
ing party attorney fees. Recovering less than was offered pre-suit may not be fatal to a prevail-
ing party attorney fee claim under a contract.[38]
In federal court a party has been considered to have prevailed when a court has rendered
judgment that has materially altered the relationship of the parties.[39]
In a case with a prevailing party attorney fee clause one side sought 6% commission and
the other side claimed that the commission was 1.5%. The court found that the commission
was 3%. In such an instance neither party was considered the prevailing party for recovery of
contractual attorney fees.[40]
A plaintiff sued for declaratory relief. The defendant counterclaimed for breach of con-
tract. The trial court granted summary judgment in favor of plaintiff. On appeal the appellate
court reversed and directed entry of judgment for the defendant on the counterclaims. The
case went to trial on damages and the defendant recovered over four million dollars in dam-
ages. The damages were vacated on appeal as being too speculative. The plaintiff sought attor-
ney fees as prevailing party, which the court declined. That also was appealed. The appellate
court said that the defendant was the prevailing party on the significant issues in the case, but
in a case such as this where the parties essentially battled to a draw it is not an abuse of dis-
cretion to decline to award attorney fees where the court determines that neither party pre-
vailed.[41]
When a party has recovered prevailing party fees at trial but the result is reversed on ap-
peal, then the attorney fee recovery should also be reversed.[42]

In another case, a contract contained a prevailing party attorney fee provision. One of the
parties demanded arbitration against the other party and a principal of the other party. The
principal filed suit seeking to extricate himself from the arbitration where he did not sign the
agreement. The trial court dismissed that case, which was appealed. The appellate court af-
firmed the trial court decision to keep the individual in the arbitration. The claimant, who de-
fended the suit where the individual sought to extricate himself, sought attorney fees for trial
and appeal. The appellate court determined that the fees were to be awarded, if at all, if the
claimant prevailed at the arbitration.[43]
Time of Attorney Fee Proof
Note that prior to 2001 attorney fees were required to be sought within a reasonable time
post-judgment.[44] In 2001 Rule 1.525, Florida Rules of Civil Procedure became effective.
This rule requires a party seeking costs and/or attorney fees to serve a motion within 30 days
of the filing of a judgment (giving affirmative recovery or dismissal) or the service of a notice
of voluntary dismissal.[45] Filing a motion for attorney fees after the jury verdict but before
the entry of final judgment has been held to be timely.[46] The Florida rule[47] applies re-
gardless of whether the time runs from a document titled “order.” “final order,' judgment,” or
“final judgment,” as long as the document is a final resolution of the rights and obligations of
the parties.[48] A motion was not required to be filed within 30 days of a court ordered non-
binding arbitration award.[49] A motion for attorney fees need not be filed within 30 days of
an order confirming an arbitration award, which is not a judgment.[50] A motion for attorney
fees to be filed within 30 days of the judgment does not mean within 30 days of an order
denying rehearing.[51] Failure to raise the issue of lack of timely filing the motion for fees in
the trial court is a waiver of the defense.[52] Before enactment of that rule it was held that a
motion seeking attorney fees filed three months after judgment, without a reservation of juris-
diction for considering attorney fees,[53] was unreasonably tardy precluding award of attor-
ney fees.[54] It was held that a motion for attorney's fees filed two months after jury verdict
was untimely.[55] The rule requiring the filing of the motion to tax attorney fees does not re-
quire the filing of the supporting documentation within the 30 days.[56] A judgment reserving
jurisdiction for attorney fees does not excuse the requirement to serve the motion within 30
days of the filing of the judgment.[57]
A lienor filed suit in two counts: Count I, to enforce a enforce construction lien; and count
II a claim for damages (presumably breach of contract). Trial court entered a judgment award-
ing the lienor damages, reciting that the lien was not fraudulent, but making no decision on
the lien enforcement count. A motion for fees and costs was tardily filed and denied. Almost a
year after entry of the first judgment the lienor filed a motion to amend the final judgment
seeking a correction of the interest calculation and requesting the court to enter a judgment en-
forcing the lien. The court entered an amended final judgment correcting the interest calcula-
tion and ordering foreclosure of the lien. The lienor filed a motion for fees and costs within 30
days of the amended final judgment. The trial court denied the motion as untimely. The appel-
late court reversed, holding that the original judgment was not final since it did not dispose of
all of the claims in the complaint. The motion for fees and costs was timely as to the amended
final judgment.[58]
Rule 54(d) Fed. R. Civ. P. provides that in federal court motions for attorney fees and

costs must be filed within 14 days of the entry of final judgment, must specify the judgment
and the authority to recover fees, and must state at least a fair estimate of the amount sought.
Further requirements for motions for attorney fees may be addressed by local rule, e.g. Rule
7.3, Local Rules of the Southern District of Florida. So long as a motion to recover attorney
fees on appeal is made not later than the filing of the briefs, there is no requirement to seek re-
covery of appellate attorney fees within 30 days of the mandate.[59] An appellate court's dis-
missal of an appeal does not vest the trial court with authority to grant appellate attorney fees
absent a mandate from the appellate court. Appellate attorney fees are not recoverable absent
a mandate from the appellate court.[60] Appellate attorney fees are awardable only if a party
prevails on a substantive issue of the case.[61]
Florida Statute 57.105(1)
Fla. Stat. 57.105(1) was first enacted as authority to recover attorney fees for a party who
was faced with defending a totally frivolous claim, or defending where there was no possible
defense. A showing of a complete absence of any justiciable issue was required to establish
recovery of attorney fees under the pre-2000 Florida Statute 57.105(1).[62] In order to estab-
lish entitlement to attorney fees under that statute the entire action was required to be deemed
frivolous, not just a portion thereof.[63] Since 2005, there is a requirement to serve the motion
and not file it until 21 days after service to allow the paper, claim, defense, contention, allega-
tion, or denial to be withdrawn.[64] Filing the motion without the 21 day period for the oppor-
tunity to withdraw has resulted in a failure to award attorney fees.[65] In order for a court to
award attorney fees under that statute there had to be a finding[66] that the losing party knew
or should have known that a claim or defense when initially presented to the court, or at any
time before trial: a) was not supported by the material facts necessary to establish the claim or
defense; or b) would not be supported by the application of the then-existing law to those ma-
terial facts.[67] A further restriction was that fees under the statute would not be awarded if
there was a good faith attempt to change existing law.[68] Note that the time to determine
whether an action is frivolous pursuant to the statute is the time of filing the complaint.[69]
Voluntary dismissal alone did not substantiate a claim to attorney fees under pre-2000
Florida Statute 57.105.[70] An action against parent corporations that failed did not substanti-
ate a fee award under Florida Statute 57.105 where there was a reasonable belief that the par-
ent corporations exercised significant dominion and control over the subsidiaries.[71]
Failure to state a cause of action alone is not sufficient to support a finding that the claim
lacked merit to justify an award of attorney fees under Florida Statute 57.105(1).[72] Filing a
claim in an inappropriate forum does not justify an award of fees under Florida Statute
57.105(1).[73]
A party must be given an opportunity to retract or amend a frivolous paper, claim, defense,
contention, allegation or denial before a motion for sanctions, pursuant to Fla. Stat. 57.105,
may be filed or presented to the court.[74] A motion served after trial on the merits was inap-
propriate.[75]
An award of attorneys fees may be made pursuant to Fla. Stat. 57.105 against government-
al entities. However, absent the requisite findings in the order the award will be reversed. The

court must state the basis for such an award.[76]

Where a trial court determined entitlement to fees under Florida Statute 57.105, but did
not fix the amount, the appellate court lacked jurisdiction to review the order.[77] A transcript
of the trial court proceedings is not required for an appeal of the issue of entitlement to attor-
ney fees.[78]
In one case, an award of § 57.105 was made at the trial level. Subsequently, the case was
appealed. The appellate court denied appellate attorney fees. Later the trial court denied §
57.105 attorney fees based on the concept of “law of the case” with respect to the denial of the
appellate attorney fees. The case again went up and the appellate court stated that its ruling
was not “law of the case” with respect to § 57.105 fees sought in the trial court.[79]
In 2000, there was a significant change to Florida Statute 57.105(1). Courts have said that
the revision effective in 2000 was a lowering of the bar a party must overcome before becom-
ing entitled to attorney fees.[80] Since the 2000 amendment, the statute allows the merit of
particular claims and defenses to be measured as of the time when asserted or at any time pri-
or to trial. If a claim is not dropped or dismissed when it becomes evident it is no longer justi-
ciable, even though it may not have been frivolous when filed, fees may be awarded.[81]
The statute after the 2000 amendment provides that if the party or attorney knew or should
have known that the claim or defense was not supported by the material facts, or not suppor-
ted by the application of existing law, then fees may be awarded against the party and/or the
attorney, 50/50.[82] In order to have fees assessed against the attorney and the party there
must be a request for such relief. In a case where a party sought 57.105 fees against the other
party without mention of 50% being sought against counsel, that was a waiver of the claim for
fees against counsel.[83] The court noted a potential ethical obligation of counsel to advise the
client that the fees could be assessed against both counsel and the client. Note also that if the
attorney acted in good faith fees may not be assessed under Florida Statute 57.105 against the
attorney.[84] The issue of good faith may require an evidentiary hearing.[85] The law does
not allow the assessment of all fees against the attorney and the party jointly and
severally.[86] The burden is on the attorney defending a claim made under this statute to show
evidence of good faith, not on the moving party to show bad faith or absence of good faith.
With no showing of good faith by the attorney, 50% of the attorney fee award should be as-
sessed against the attorney.[87]
In one case a lawyer took over a case and was faced with a quick running of the statute of
limitations. The opposing lawyer pointed out to the new lawyer that the case was frivolous be-
cause the opposing lawyer's client was not involved on the job until 3 months after the injury.
The new lawyer asked for sworn proof to support the opposing lawyer's position, which was
not received. The new lawyer filed the claim and was faced with a claim for attorney fees un-
der Fla. Stat. 57.105 (2000). The court did not assess attorney fees because the press of time
and potential exposure for malpractice in missing the statute of limitations was a showing of
good faith (along with the failure to receive the requested sworn proof).[88]
A court may assess attorneys fees against a party who has asserted an unsupportable claim

or defense, even though that party might ultimately prevail in the case on some other
ground.[89]
Federal Courts 28 U.S.C. § 1927 and Rule 11
While Florida Statute 57.105(1) is applicable in federal courts in Florida,[90] there is an-
other basis in federal law (28 U.S.C. § 1927) for recovery of attorney fees in federal court. If
an attorney in federal court “multiplies the proceedings in any case unreasonably and vexa-
tiously,” the lawyer may be required to satisfy personally the excess costs, expenses, and at-
torneys' fees reasonably incurred because of such conduct.[91] To support sanctions under 28
U.S.C. § 1927 the court must find that there was objective intent[92] of bad faith that may be
inferred from reckless conduct.[93]
Rule 11 of the Federal Rules of Civil Procedure empowers a court to impose sanctions, in-
cluding attorney fees, on counsel for improper conduct. Rule 11 sanctions are not awardable
for tenuous claims, only claims that are completely frivolous. A frivolous claim is one that has
no reasonable chance of success and cannot be advanced as a reasonable argument to change
existing law; or is filed in bad faith or with an improper motive.[94] The merits of the plead-
ing should be assessed from the facts and law known or available to the attorney at the time of
filing.[95] When ruling on a motion for Rule 11 sanctions the court must make a two-step in-
quiry: 1) whether the claims are objectively frivolous, and 2) whether the person who signed
the pleadings should have been aware that they were frivolous.[96]
Sanctions under Rule 11 may be initiated by the Court by entering an order describing the
offensive conduct and directing counsel to show cause why there has been no violation of
Rule 11. Alternatively any party may make a motion for sanctions pursuant to Rule 11 de-
scribing offensive activity, which motion is to be served but not filed, until after 21 days from
service of the motion. The alleged offending party has the 21 day period to correct or with-
draw the alleged offensive paper, claim, defense, contention, allegation, or denial. By defini-
tion Rule 11 does not apply to disclosures or discovery issues addressed in Rule 26 through 37
of the Federal Rules of Civil Procedure.
The fee award analysis begins with a determination of a lodestar number of hours reason-
ably spent multiplied by a reasonable hourly rate.[97] The burden of establishing the reason-
able hours expended and the reasonable hourly rate lies with the party seeking the award.
Where the documentation of the hours is inadequate, the court may reduce the award accord-
ingly.[98] Hours that are excessive, redundant, or otherwise unnecessary should be
excluded.[99] Other considerations set forth in Florida Supreme Court Guidelines are then to
be considered, including a very important factor, the result obtained.[100]
Bad faith is a high standard that is rarely met.[101] When attorney fees are sought to be
assessed against the party, as opposed to the attorney, courts look to the conduct and motive
of the party, rather than the validity of the case, to find bad faith.[102]
Amount of Fees Recoverable
While parties and lawyers have groused about the concept for years, one appellate court
has stated that the ability to recover attorney fees tends to be the overriding factor in getting

many cases resolved. The court suggested that the legislature make a cap on statutory
fees.[103]
As unliquidated damages, there must be an evidentiary hearing for quantification of attor-
ney fees, even where a default has been entered.[104]
While parties may agree to the use of affidavits for the proof of attorney fees, the use of
affidavits cannot be ordered by the Court without the agreement of the parties. The parties are
entitled to an evidentiary hearing on the issue of attorney fees.[105]
For a case discussing the various factors in determining amount, as well as several de-
fenses to the calculation of awardable fees see Centex-Rooney Constr. Co., Inc. v. Martin
County.[106] It should be no surprise that fees performed in Case 1 are not awardable in Case
2.[107]
Where a settlement agreement provided that a stated amount plus reasonable attorney fees
were to be paid, there was no longer an issue as to entitlement. The only issue for proof was
the amount of the reasonable fees.[108]
Where attorney fees are awarded, the judgment assessing fees should include specific find-
ings as to hourly rate, number of hours reasonably expended, and the propriety of reduction or
enhancement factors.[109] The purpose of requiring the findings is to allow meaningful re-
view.[110] Failure to recite findings of reasonable hourly rate and reasonable number of hours
expended and, if applicable, appropriateness to increase or decrease lodestar multiplier will
result in the attorney fee award being remanded to the trial court for such findings.[111]
However, where the only findings necessary to arrive at the proper amount of attorney fees are
the number of hours reasonably expended and the reasonable hourly rate, failure to provide
more explicit findings may be harmless error.[112] A range of fees without a specific hourly
rate and number of hours has been held to be inadequate.[113] There should also be expert
testimony that the hourly rate is appropriate for the particular counsel seeking fees.[114] A tri-
al court's statement that it felt a multiplier of 2 was reasonable was insufficient.[115] Like-
wise, failure to give specific reasons for reduction of a lodestar factor will render the award
reversible.[116]
An oral contingent fee agreement may be valid.[117] Without a written fee agreement an
attorney was denied recovery of fees where the court found that the client had good reason to
believe that the attorney fees would be paid by an award against the other side and the attor-
ney did not periodically bill the client.[118]
Where a law firm working under a contingent fee agreement was discharged prior to set-
tlement, it was entitled to quantum meruit recovery limited by the fee agreement.[119] A mul-
tiplier to the quantum meruit amount was not allowed.[120] Contingent fees are to be calcu-
lated on the amount of principal recovery and interest. The contingency does not apply to stat-
utorily awarded fees on top of the principal and interest recovered.[121]
The failure to introduce time records to support the testimony of the number of hours ex-
pended by trial counsel was not sufficient to reverse the attorney fee award.[122] In that case

there is no indication that the time records were the object of any discovery request. While
written time records are preferable, recovery of fees is not predicated on the actual detailed
time records.[123] On the other hand, unit billing without regard to actual time is an insuffi-
cient basis to award attorney fees.[124] Where there are fees awardable for a claim, and not
awardable for defense of a counterclaim, the court determined that the billing records must be
produced for both aspects, so that the parties may determine what work was for billed for the
claim. Redacted bills were insufficient.[125]
Where the bulk of attorney fees are intertwined on issues for which fees are generally
awarded, it is not error to allow fees for the entire service furnished.[126] It is the burden of
the party seeking to assess attorney fees to distinguish recoverable fees from non-recoverable
fees.[127] When a party claims fees under a written agreement, the entitlement to fees extends
only to the counts based on that agreement, unless there is a showing that the issues were so
intertwined that allocation is not feasible.[128]
The best evidence for determining an appropriate attorney fee for appellate work is the ap-
pellate record briefs, court's recollection of oral argument, and opinion of the appellate
court.[129] In an appeal from an award of appellate attorney fees, the Second District held
that 21.4 hours in planning for oral argument was excessive.[130]
The attorney who performed the services for which recovery is sought should testify to
support the claim for fees.[131] In one case the attorney filed an affidavit but did not testify.
There was expert testimony. Florida has a long standing practice of requiring testimony of an
expert fee witness to establish the reasonableness of the fees.[132] No objection was made to
the use of the affidavit at trial, but was asserted as a ground to vacate the attorney fee award
on appeal. The appellate court affirmed on the basis that the issue was not raised in the trial
court.[133]
Where attorney fee recovery is provided by contract and where the same matters in proof
of the claim also involve defense of a counterclaim, then attorney fees for defense of the coun-
terclaim should not be excluded from the award.[134] Where there are different independent
wrongs which support separate counts of a complaint, and attorney fees are recoverable for
less than all of the counts, attorney fees are to be awarded only in connection with the proof of
the items for which fees are recoverable.[135] Time spent defending a claim for quantum
meruit was held not recoverable in a case where fees were awardable for breach of
contract.[136] In that regard, the work product privilege could not be invoked to avoid discov-
ery concerning the apportionment of attorney fees between compensable and noncompensable
issues.[137]
Lengthy court proceedings may result in a disparity between the relief sought and the
amount of attorney fees incurred. For example, attorney fees of $127,000 in a hotly contested
action on an $18,000 promissory note was determined not to be excessive.[138] Nevertheless,
attorney fees are recoverable within the parameters of the expert testimony.[139] Attorney
fees of $253,500 were awarded in a case where the amount in dispute was $600. The court
said:[140]

We are fully cognizant of the great disparity between the monetary sum recovered in this
case and the amount of the attorney's fee. However, the parties elected to go toe-to-toe
over the issue and they brought to bear all of their skill and resources to try to win the day.
At least one court has used the amount of fees awarded to one defendant as a barometer of
the amount of fees recovered by another defendant.[141] Where there was no record support
of an award less than the lowest rate testified to, it was error to award attorney fees in a lesser
amount.[142] Likewise, it would be error to award attorney fees in excess of the amount
agreed to between the attorney and the client in the fee agreement.[143] However a fee agree-
ment may be modified for consideration at any time prior to the verdict.[144] This limitation
to the amount in the agreement does not apply where services for defending a counterclaim
are involved. The reasoning is that the fee agreement (and amount) was based on pursuing the
claim. Defending a counterclaim is extra. It has been held that the amount paid by the client is
not the upper limit for a fee award.[145]
The Florida Supreme Court has decided that a lodestar factor for a contingent fee case may
be assessed whether the claim for attorney fees is based on contract, or on a statute.[146]
However, the lodestar factor is not appropriate for attorney fees recoverable under the offer of
judgment statute and rule [Florida Statute 768.79 and Rule 1.442 Florida Rules of Civil Pro-
cedure (1997)].[147] The appellate districts are divided on whether to allow a contingency
multiplier under Florida Statute 57.105. The second district says no[148] and the fourth dis-
trict says yes.[149] An award of attorney fees under Fla. Stats. 627.428 and 627.756 was per-
mitted to have a multiplier, but the appellate decision certified the question of whether a mul-
tiplier was permitted as a question of great public importance.[150]
In contingent fee contract cases, the multiplier to be used, although not required, will de-
pend on whether: (1) the relevant market would require the multiplier to obtain competent
counsel, and (2) whether nonpayment could be mitigated by the attorney.[151] The contin-
gency multiplier relates to the risk of nonpayment, rather than the novelty and complexity of
the case. The novelty and complexity of the case are usually compensated by more hours in
the case. Thus, an attorney fee award which used a multiplier based on novelty and complex-
ity of the case was reversed.[152]
The landmark decision describing the factors for setting a contingency fee was Florida Pa-
tient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985) (holding modified by, Stand-
ard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990)).[153] Rowe provides for a mul-
tiplier of an hourly rate in contingent fee cases from 1.5 to 3 times the regular hourly rate. One
court has determined that where the attorney fee was a reduced hourly rate to be applied
against a contingency, the multiplier in Rowe was inapplicable. It held that a multiplier for
contingency risk was only applicable to a fully contingent fee.[154]
The Florida Supreme Court has clarified the Rowe decision by indicating that there are
different methods to calculate attorney fees for different cases. The court said that in tort and
contract claims the trial court should consider the following factors in determining whether a
multiplier is necessary:

1) Whether the relevant market requires a contingency fee multiplier to obtain competent
counsel;[155]
2) Whether the attorney is 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 in-
volved, the results obtained, and the type of fee arrangements between the attorney and his
client.
If success was more likely than not at the outset, it may apply a multiplier of 1 to 1.5. If
the likelihood of success was approximately even at the outset, it may apply a multiplier of
1.5 to 2. And if success was unlikely at the outset, the court may apply a multiplier of 2.0 to
2.5.[156]
Attorneys who represent themselves are not entitled to a contingency risk multiplier.[157]
Where billing was hourly to an insurance company there was no payment risk and no multipli-
er should be applied.[158]
A multiplier must relate to rates that are discretely those of the attorney. The application of
a lodestar multiplier for a blended rate of attorney and paralegal time was disallowed.[159] It
is error to reduce a fee based on results obtained when the basis of the results analysis relates
to claims other than the claim for which fees are awarded.[160]
Prior to October 1, 1987, there was no authority for recovery of paralegal fees as attorney
fees. After October 1, 1987, a statute[161] has authorized recovery of paralegal fees. Federal
courts have likewise permitted paralegal fees when assessing attorney fees.[162] In defending
a claim for attorney fees the federal government argued that paralegal fees should be con-
sidered an expense and only be recoverable based on the wages paid the paralegal. The U.S.
Supreme Court disagreed and said that legal fees included paralegal fees at market rate, not at
paid cost.
Attorney fees for travel time for the attorney to take a deposition as well as travel time for
document production were not recoverable as court-awarded attorney fees.[163] However,
travel time for attorney fees awarded as a sanction for discovery abuse was upheld.[164]
The rule on the ability to recover attorney fees for litigating the amount of attorney fee re-
covery was not uniform, but was resolved by the Florida Supreme Court in 1993. Under Flor-
ida law attorney fees for determining entitlement to attorney fees are awardable, but fees to
determine the amount of attorney fees are not awardable[165] unless the fees are being awar-
ded as a sanction.[166] Fees incurred to determine whether there was a valid settlement agree-
ment with an insurance carrier were held to be awardable.[167] Time spent litigating whether
a multiplier should be utilized goes to amount and is not recoverable.[168] However, where
the basis for attorney fee recovery is under federal law, attorney fees are recoverable for litig-
ating both entitlement and amount.[169]
Where attorney fees are set out in the agreement as a percentage of recovery, they still
must be reasonable. A statute provides that attorney fees provided for in a written instrument
is not required to be proved to be reasonable where the arrangement provides for attorney fees
not in excess of 10 percent.[170] On the other hand, where the attorney fee agreement does

not set fees in terms of a percentage of recovery, it has been held that the statute has no ap-
plication.[171] Where the fee agreement said that it would be based on the amount recovered,
the amount recovered included post judgment interest, and was not limited to the face amount
of the judgment.[172]
Interest on Attorney Fee Award
Prejudgment interest on an award of attorneys fees accrues from the date entitlement is de-
termined. Postjudgment interest accrues on the prejudgment amount that is merged into the
judgment. Failure to award prejudgment interest on fees was error.[173]
Entitlement to attorney fees is fixed or determined through agreement, arbitration award,
or court determination.[174] In one case, interest on fees did not begin to run on attorney fees
for an arbitration until after a summary judgment was entered determining a prevailing party.
Interest awarded from the date of the arbitration award was reversed.[175] For attorney fees
recoverable for a frivolous claim,[176] as well as a prevailing party,[177] interest accrues
from the date that the court determined that there was entitlement to the fee. A trial court erred
in establishing the amount of attorney fees solely through the testimony of the attorney who
performed the services without corroboration through expert testimony.[178]
Fees awarded against the state pursuant to the insured waiver of sovereign immunity[179]
are limited to 25% of the judgment, not just the damages.[180]
Offer of Judgment/Proposal for Settlement
Where attorney fees are sought to be recovered as a matter of contract, as distinguished
from a matter of costs pursuant to statute, an offer of judgment in a stated amount plus costs is
presumed to include the amount of attorney fees recoverable in the amount of the offer of
judgment.[181]
Rule 1.442 Florida Rules of Civil Procedure, provides that an offer of judgment may not
be served on a defendant sooner than 90 days from service of process; or on a plaintiff sooner
than 90 days from filing the action. A premature offer of judgment may void the attorney fee
provisions that are a part of the statute and rule.[182]
Note also that where recovery is less than what was offered prior to trial, a strong argu-
ment exists that attorney fees should not be recovered.[183] However, the Florida Supreme
Court has reasoned that an offer of settlement that was not formally made under the offer of
judgment rule, coupled with a judgment in an amount less than what was offered, does not
preclude recovery of attorney fees under a contract providing for same to the prevailing
party.[184]
A defendant offered judgment to a plaintiff pursuant to the rule. Subsequently, the defend-
ant obtained a summary judgment of dismissal. The defendant sought to recover attorney fees
under the offer of judgment rule. Where the defendant made an offer of judgment under Flor-
ida Statute 768.79 and the plaintiff voluntarily dismissed its claim, defendant was entitled to
attorney fees.[185] It is not bad faith to make an offer of judgment under Florida Statute
768.79 that is vastly below what the opposing party had expended in attorney fees.[186]
However, one court has held that a nominal offer of judgment of $100.00 that was “not based

on any reasonable foundation” but in order to create an entitlement to attorney fees, was not
made in good faith. The court said that such nominal offers not founded upon a reasonable
and realistic assessment of liability should be viewed with skepticism.[187]
The court denied attorney fees and strictly interpreted the rule by finding that a plaintiff
must recover a judgment before the offer of judgment rule comes into play for recovery of a
defendant's attorney fees.[188] The defendant who completely wins must pay for his or her
own attorney fees. An offer of judgment, if accepted, would still be entitled to an award of
taxable costs (unless otherwise provided in the offer).[189] The sovereign immunity waiver
statute,[190] which limits attorney fees to 25% of the judgment obtained, controls entitlement
to attorney fees pursuant to an offer of judgment.[191]
An award of attorney fees based upon an offer of judgment must be supported by express
findings that the offer was unreasonably rejected. While the offer of judgment statute creates a
presumption that that offer was unreasonably rejected if the judgment is at least 25% less than
the offer rejected, the presumption is not absolute.[192]
Pursuant to an offer of judgment an order finding entitlement to fees but not setting the
amount is not an appealable final order.[193]
The recovery of attorney fees against a governmental entity arising in tort is limited to
25% of the amount of the judgment.[194]
Where attorney fees are awardable by contract and a jury trial has been demanded, absent
a clear stipulation, the issue of attorney fees is to be heard by the jury.[195] Failure to present
evidence to the jury or failure to request an instruction on attorney fees as an element of dam-
age is a waiver of the issue.[196] In non-jury cases, it appears that proof of attorney fees,
which have been properly pleaded, may be presented for the first time after final judgment
pursuant to a motion for attorney fees.[197]
Prior to 2001, a motion to tax attorney fees was required to be filed within a reasonable
time after entry of final judgment.[198] Since 2001, Rule 1.525 Florida Rules of Civil Proced-
ure has been effective in Florida Courts. This rule requires a motion seeking attorney fees
and/or costs to be served within 30 days of the filing of a judgment or the service of a notice
of voluntary dismissal.[199] The courts are not clear on the effect of an order reserving juris-
diction to tax fees. The first and fifth district courts of appeal have held that reservation of jur-
isdiction to award fees does not automatically grant an extension to the requirement to seek
fees within 30 days of the judgment.[200] The fourth district court of appeal has held that a
motion for attorney fees filed later than 30 days from the judgment was not barred where the
judgment expressly reserved jurisdiction to tax fees in favor of a particular party.[201]
There is no requirement for the service or filing of supporting affidavits for attorney fees
within the 30 day period required for the motion.[202]
When seeking attorney fees pursuant to the offer of judgment statute[203] the motion to
tax fees and costs must be made within 30 days of the return of the verdict in a jury action if
there has been no motion filed to extend the time prior to expiration of the 30 days.[204]

Where an order granting summary judgment reserved the right to tax attorney fees and a
motion was filed eight days after an unsuccessful appeal of the summary judgment order, the
motion for attorney fees was filed within a reasonable time after the entry of the final judg-
ment as there was no surprise or prejudice to the opposing party.[205]
A post judgment motion for attorney fees, where the issue has been retained by the trial
court in its judgment, constitutes a collateral independent claim which the trial court has con-
tinuing jurisdiction (assuming a timely motion) to entertain within a reasonable time, notwith-
standing that a judgment has been entered and satisfied in regard to the main claim.[206]
Even where a notice of appeal is filed, the trial court retains jurisdiction for taxing attor-
ney fees where jurisdiction has been reserved by the trial court for such purpose.[207] An
award of attorney fees based upon a partial summary judgment where other counts remain
pending is premature and should be reversed.[208]
There is no time limit in the rules within which a motion seeking to quantify appellate at-
torney fees must be set, so long as the motion to tax attorney fees was filed at or before the
time of filing the reply brief.[209] The amount of fees may be set by the appellate court or the
quantification may be remanded to the trial court.
Appealable orders
The standard of review for an award of attorney fees is abuse of discretion.[210]
An order determining entitlement to attorney fees is not appealable. One court has said
that the rule of appellate procedure[211] which gives authority to appeal an order determining
“the” issue of liability does not authorize an appeal of an order determining “an” issue of liab-
ility.[212] Where the court determined entitlement to fees under Florida Statute 57.105, but
did not fix the amount, the appellate court lacked jurisdiction to review the order.[213] An ap-
peal of an award of attorney fees is premature where the amount of fees remains to be determ-
ined.[214] However, once an agreed final order on the amount of fees was filed jurisdiction
vested in the appellate court to consider the issue of entitlement.[215] An order denying or
awarding attorney's fees and costs after a voluntary dismissal was reviewed by petition for
writ of certiorari prior to 2002.[216] Now such review may be by plenary appeal.[217]
In an appeal from an award of appellate attorney fees, the Second District held that 21.4
hours in planning for oral argument was excessive.[218]
In order to seek recovery of attorney fees for appeal, there must be a motion filed with the
appellate court not later than the time for filing the reply brief.[219] There must be evidence
of time spent to support attorney fee recovery. The appellate court may receive affidavits, or
may remand for quantification by the trial court.[220] Where attorney fees are awarded for in-
terlocutory appeal on the basis of prevailing party, such attorney fees are conditioned upon
that party ultimately being the prevailing party as of final judgment.[221] Where a judgment
recognizing a lien claim is reversed on appeal, the order awarding attorney fees should also be
reversed.[222]
Garnishment

A corporation was awarded attorney fees. A judgment creditor of the corporation attemp-
ted to garnish the attorney fee award. It was held that the attorney fee award was not subject to
garnishment because the corporation did not own the award. The award was required to be
paid over to the corporation's lawyer.[223]
[FN1] Scutti v. Daniel E. Adache & Associates Architects, P.A., 515 So. 2d 1023 (Fla.
4th DCA 1987).
[FN2] For example the construction lien law, Fla. Stat. 713.29.
[FN3] For the inequitable conduct doctrine see Diaz v. Diaz, 826 So. 2d 229 (Fla.
2002); Moakley v. Smallwood, 826 So. 2d 221 (Fla. 2002); and State, Dept. of Reven-
ue v. Barry S. Franklin & Associates, P.A, 841 So. 2d 608 (Fla. 3d DCA 2003).
[FN4] Northamerican Van Lines, Inc. v. Roper, 429 So. 2d 750 (Fla. 1st DCA 1983);
City of Tallahassee v. Blankenship & Lee, 736 So. 2d 29 (Fla. 1st DCA 1999); Rob-
bins v. McGrath, 955 So. 2d 633 (Fla. 1st DCA 2007), review denied, 965 So. 2d 823
(Fla. 2007); Winselmann v. Reynolds, 690 So. 2d 1325 (Fla. 3d DCA 1997).
[FN5] Brown v. Gardens by the Sea South Condominium Ass'n, 424 So. 2d 181 (Fla.
4th DCA 1983); Ocala Music & Marine Center v. Caldwell, 389 So. 2d 222 (Fla. 5th
DCA 1980) (disapproved of by, Stockman v. Downs, 573 So. 2d 835 (Fla. 1991));
Altamonte Hitch and Trailer Service, Inc. v. U-Haul Co. of Eastern Florida, 498 So. 2d
1346 (Fla. 5th DCA 1986); Res Panel Refrigeration Corp. v. Bill Collins Refrigeration
Services, Inc., 636 So. 2d 569 (Fla. 3d DCA 1994); Callaway v. City of West Palm
Beach, 674 So. 2d 921 (Fla. 4th DCA 1996). Tri-County Development Group, Inc. v.
C.P.T. of South Florida, Inc., 740 So. 2d 573 (Fla. 4th DCA 1999); Green v. Sun Har-
bor Homeowners' Ass'n, Inc., 730 So. 2d 1261 (Fla. 1998); Wunderle v. Fruits, Nuts &
Bananas, Inc., 715 So. 2d 325 (Fla. 2d DCA 1998); Stockman v. Downs, 573 So. 2d
835, 837 (Fla. 1991); Perez v. Doroska, 881 So. 2d 22 (Fla. 5th DCA 2004); Walker v.
Cash Register Auto Ins. of Leon County, Inc., 946 So. 2d 66 (Fla. 1st DCA 2006), re-
view denied, 959 So. 2d 718 (Fla. 2007).
[FN6] Callaway v. City of West Palm Beach, 674 So. 2d 921 (Fla. 4th DCA 1996).
[FN7] Green v. Sun Harbor Homeowners' Ass'n, Inc., 730 So. 2d 1261 (Fla. 1998).
[FN8] Rabbit Hill Homeowners Ass'n, Inc. v. Cory, 976 So. 2d 663 (Fla. 1st DCA
2008).
[FN9] Inland Dredging Co., L.L.C. v. Panama City Port Authority, 406 F. Supp. 2d
1277 (N.D. Fla. 2005).
[FN10] C & C Wholesale, Inc. v. Fusco Management Corp., 564 So. 2d 1259 (Fla. 2d
DCA 1990); Max Dial Porsche Audi, Inc. v. Kushner, Inc., 596 So. 2d 156 (Fla. 4th

DCA 1992); Swortz v. Southern Rainbow Corp., 603 So. 2d 107 (Fla. 3d DCA 1992);
Laguna Palms Properties Ltd. v. Long, 622 So. 2d 556 (Fla. 3d DCA 1993); Precision
Tune Auto Care, Inc. v. Radcliffe, 815 So. 2d 708 (Fla. 4th DCA 2002).
[FN11] Tri-County Development Group, Inc. v. C.P.T. of South Florida, Inc., 740 So.
2d 573 (Fla. 4th DCA 1999); Stockman v. Downs, 573 So. 2d 835, 837 (Fla. 1991).
[FN12] Caufield v. Cantele, 837 So. 2d 371 (Fla. 2002); Holiday Square Owners Ass'n,
Inc. v. Tsetsenis, 820 So. 2d 450 (Fla. 5th DCA 2002).
[FN13] See Concrete & Lumber Enterprises Corp. v. Guaranty Business Credit Corp.,
829 So. 2d 247 (Fla. 3d DCA 2002).
[FN14] Robbins v. McGrath, 955 So. 2d 633 (Fla. 1st DCA 2007), review denied, 965
So. 2d 823 (Fla. 2007); Winselmann v. Reynolds, 690 So. 2d 1325 (Fla. 3d DCA
1997).
[FN15] Kovack Securities, Inc. v. Bailey, 933 So. 2d 1202 (Fla. 4th DCA 2006).
[FN16] Prudential Securities Inc. v. Ruskin, 707 So. 2d 782 (Fla. 4th DCA 1998).
[FN17] Thornber v. City of Ft. Walton Beach, 568 So. 2d 914 (Fla. 1990); 51 Island
Way Condominium Ass'n, Inc. v. Williams, 458 So. 2d 364 (Fla. 2d DCA 1984);
Sopena v. Rowland Coffee Roasters, Inc., 716 So. 2d 799 (Fla. 3d DCA 1998).
[FN18] Ajax Paving Industries, Inc. v. Hardaway Co., 824 So. 2d 1026 (Fla. 2d DCA
2002).
[FN19] Bruce v. Barcomb, 675 So. 2d 219 (Fla. 2d DCA 1996).
[FN20] Bowman v. Corbett, 556 So. 2d 477 (Fla. 5th DCA 1990); Stockman v. Downs,
573 So. 2d 835 (Fla. 1991); Vie-A-Mer, Ltd. v. S. Toub & Associates, Inc., 684 So. 2d
216 (Fla. 2d DCA 1996).
[FN21] Bruce v. Barcomb, 675 So. 2d 219 (Fla. 2d DCA 1996); Laguna Palms Proper-
ties Ltd. v. Long, 622 So. 2d 556 (Fla. 3d DCA 1993).
[FN22] Stockman v. Downs, 573 So. 2d 835 (Fla. 1991); Sopena v. Rowland Coffee
Roasters, Inc., 716 So. 2d 799 (Fla. 3d DCA 1998).
[FN23] Wunderle v. Fruits, Nuts & Bananas, Inc., 715 So. 2d 325 (Fla. 2d DCA 1998).
[FN24] Precision Tune Auto Care, Inc. v. Radcliffe, 815 So. 2d 708 (Fla. 4th DCA
2002).
[FN25] Ganz v. HZJ, Inc., 605 So. 2d 871 (Fla. 1992); Tampa Letter Carriers, Inc. v.
Mack, 649 So. 2d 890 (Fla. 2d DCA 1995) (disapproved of by, MX Investments, Inc.
v. Crawford, 700 So. 2d 640 (Fla. 1997)); National Environmental Products, Ltd., Inc.
v. Falls, 678 So. 2d 869 (Fla. 4th DCA 1996).

[FN26] Texas State Teachers Ass'n v. Garland Independent School Dist., 489 U.S. 782,
109 S. Ct. 1486, 103 L. Ed. 2d 866, 52 Ed. Law Rep. 19 (1989); Powell v. Carey In-
tern., Inc., 547 F. Supp. 2d 1281 (S.D. Fla. 2008).
[FN27] C.U. Associates, Inc. v. R.B. Grove, Inc., 472 So. 2d 1177 (Fla. 1985); R & M
Cabinet Sales, Inc. v. Hallmark Bldg. Supply, 621 So. 2d 1090 (Fla. 2d DCA 1993);
Grant v. Wester, 679 So. 2d 1301 (Fla. 1st DCA 1996); Corley v. Rivertown, Inc., 863
So. 2d 1244 (Fla. 5th DCA 2004).
[FN28] Granoff v. Seidle, 915 So. 2d 674 (Fla. 5th DCA 2005).
[FN29] KCIN, Inc. v. Canpro Investments, Ltd., 675 So. 2d 222 (Fla. 2d DCA 1996);
Merchants Bonding Co. (Mutual) v. City of Melbourne, 832 So. 2d 184 (Fla. 5th DCA
2002); Miller v. Jacobs & Goodman, P.A., 820 So. 2d 438 (Fla. 5th DCA 2002).
[FN30] Port-A-Weld, Inc. v. Padula & Wadsworth Const., Inc., 984 So. 2d 564 (Fla.
4th DCA 2008); Lucite Center, Inc. v. Mercede, 606 So. 2d 492 (Fla. 4th DCA 1992);
Reinhart v. Miller, 548 So. 2d 1176 (Fla. 4th DCA 1989); Green Companies, Inc. v.
Kendall Racquetball Investment, Ltd, 658 So. 2d 1119 (Fla. 3d DCA 1995).
[FN31] Lashkajani v. Lashkajani, 911 So. 2d 1154 (Fla. 2005).
[FN32] Port-A-Weld, Inc. v. Padula & Wadsworth Construction, Inc., 984 So.2d 564
(Fla. 4th DCA 2008). See also P & C Thompson Bros. Const. Co. v. Rowe, 433 So. 2d
1388 (Fla. 5th DCA 1983).
[FN33] Shipwatch Development Corp. v. Salmon, 646 So. 2d 838 (Fla. 1st DCA
1994).
[FN34] Port-A-Weld, Inc. v. Padula & Wadsworth Construction, Inc., 984 So.2d 564
(Fla. 4th DCA 2008); Orix Capital Markets, LLC v. Park Avenue Associates, Ltd., 881
So. 2d 646 (Fla. 1st DCA 2004).
[FN35] See JPG Enterprises, Inc. v. Viterito, 841 So. 2d 528 (Fla. 4th DCA 2003).
[FN36] Alhambra Homeowners Ass'n, Inc. v. Asad, 943 So. 2d 316 (Fla. 4th DCA
2006); Dolphin Towers Condominium Ass'n, Inc. v. Del Bene, 388 So. 2d 1268 (Fla.
2d DCA 1980).
[FN37] Inland Dredging Co., L.L.C. v. Panama City Port Authority, 406 F. Supp. 2d
1277 (N.D. Fla. 2005).
[FN38] Sullivan v. Galske, 917 So. 2d 412 (Fla. 2d DCA 2006).
[FN39] Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and
Human Resources, 532 U.S. 598, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001); Friskney
v. American Park & Play, Inc., 2007 WL 675974 (S.D. Fla. 2007).

[FN40] Terranova Corp. v. 1550 Biscayne Associates Corp., 912 So. 2d 347 (Fla. 3d
DCA 2005), review denied, 933 So. 2d 1154 (Fla. 2006).
[FN41] M.A. Hajianpour, M.D., P.A. v. Khosrow Maleki, P.A., 975 So. 2d 1288 (Fla.
4th DCA 2008); Merchants Bonding Co. (Mutual) v. City of Melbourne, 832 So. 2d
184 (Fla. 5th DCA 2002).
[FN42] Marty v. Bainter, 727 So. 2d 1124 (Fla. 1st DCA 1999); Dooley and Mack
Constructors, Inc. v. Buildtec Const. Group, Inc., 983 So. 2d 1243 (Fla. 3d DCA
2008).
[FN43] Sawyer v. Florida Development Associates, Ltd., 957 So. 2d 1199 (Fla. 3d
DCA 2007).
[FN44] Bal Bay Realty, Ltd. v. Pepsomers Corp., 833 So. 2d 320 (Fla. 4th DCA 2003).
[FN45] Ulico Cas. Co. v. Roger Kennedy Const., Inc., 821 So. 2d 452 (Fla. 1st DCA
2002); Diaz v. Bowen, 832 So. 2d 200 (Fla. 2d DCA 2002); Oglesby-Dorminey v.
Lucy Ho's Restaurant/Lucy Ho's Bamboo Garden, Inc., 815 So. 2d 749 (Fla. 1st DCA
2002); Gulf Landings Ass'n, Inc. v. Hershberger, 845 So. 2d 344 (Fla. 2d DCA 2003);
Parrot Cove Marina, LLC v. Duncan Seawall Dock & Boatlift, Inc., 978 So. 2d 811
(Fla. 2d DCA 2008).
[FN46] Norris v. Treadwell, 907 So. 2d 1217 (Fla. 1st DCA 2005), review granted,
919 So. 2d 435 (Fla. 2006) and review dismissed, 934 So. 2d 1207 (Fla. 2006); Barco
v. School Bd. of Pinellas County, 975 So. 2d 1116 (Fla. 2008).
[FN47] Rule 1.525 Fla. R. Civ. P.
[FN48] Cardillo v. Qualsure Ins. Corp., 974 So. 2d 1174 (Fla. 4th DCA 2008).
[FN49] Landing Group of Tampa, Inc. v. Kifner, 951 So. 2d 1014 (Fla. 5th DCA
2007).
[FN50] Paige v. American Sec. Ins. Co., 2008 WL 2663756 (Fla. 4th DCA 2008).
[FN51] Manimal Land Co. v. Randall E. Stofft Architects, P.A., 889 So. 2d 974 (Fla.
4th DCA 2004); Clampitt v. Britts, 897 So. 2d 557 (Fla. 2d DCA 2005), review denied,
946 So. 2d 1069 (Fla. 2006).
[FN52] Moss v. Moss, 901 So. 2d 177 (Fla. 2d DCA 2005), review granted, decision
quashed, 914 So. 2d 942 (Fla. 2005); Estate of Brungart v. Smallwood, 901 So. 2d 247
(Fla. 3d DCA 2005).
[FN53] U.S. Fidelity & Guar. v. Martin County, 669 So. 2d 1065 (Fla. 4th DCA 1996).
[FN54] McAskill Publications, Inc. v. Keno Bros. Jewelers, Inc., 647 So. 2d 1012 (Fla.
4th DCA 1994). See also National Environmental Products, Ltd., Inc. v. Falls, 678 So.

2d 869 (Fla. 4th DCA 1996).

[FN55] Wunderle v. Fruits, Nuts & Bananas, Inc., 715 So. 2d 325 (Fla. 2d DCA 1998).
[FN56] P & R Smith Corp. v. Goyarrola, 864 So. 2d 584 (Fla. 3d DCA 2004).
[FN57] Clampitt v. Britts, 897 So. 2d 557 (Fla. 2d DCA 2005), review denied, 946 So.
2d 1069 (Fla. 2006); Saia Motor Freight Line, Inc. v. Reid, 930 So. 2d 598 (Fla. 2006);
ZC Ins. Co. v. Brooks, 2007 WL 911843 (Fla. 4th DCA 2007), opinion withdrawn and
superseded on reh'g, 962 So. 2d 419 (Fla. 4th DCA 2007), reh'g granted, (Aug. 22,
2007).
[FN58] Alpaugh Plumbing & Supply of Tampa, Inc. v. The Fee-Walters Corp., 947 So.
2d 682 (Fla. 2d DCA 2007).
[FN59] Computer Task Group, Inc. v. Palm Beach County, 809 So. 2d 10 (Fla. 4th
DCA 2002).
[FN60] Devido v. Curry, 973 So. 2d 1287 (Fla. 4th DCA 2008); Real Estate Apart-
ments, Ltd. v. Bayshore Garden Apartments, Ltd., 530 So. 2d 977 (Fla. 2d DCA 1988);
Gieseke v. Gieseke, 499 So. 2d 839 (Fla. 4th DCA 1986).
[FN61] Parrot Cove Marina, LLC v. Duncan Seawall Dock & Boatlift, Inc., 978 So. 2d
811 (Fla. 2d DCA 2008).
[FN62] Branch v. Charlotte County, 627 So. 2d 577 (Fla. 2d DCA 1993); Cossio v.
World Sav. and Loan Ass'n, 619 So. 2d 402 (Fla. 3d DCA 1993); Sykes v. St. Andrews
School, 625 So. 2d 1317 (Fla. 4th DCA 1993); State, Dept. of Transp. v. Kisinger
Campo & Associates, Corp., 661 So. 2d 58 (Fla. 2d DCA 1995); Bruce v. Barcomb,
675 So. 2d 219 (Fla. 2d DCA 1996).
[FN63] Remova Pool Fence Co. v. Roth, 647 So. 2d 1022 (Fla. 4th DCA 1994).
[FN64] Fla. Stat. 57.105(4) (2005).
[FN65] Burgos v. Burgos, 948 So. 2d 918 (Fla. 4th DCA 2007).
[FN66] Apgar & Markham Const. of Florida, Inc. v. Macasphalt, Inc., 424 So. 2d 41
(Fla. 2d DCA 1982); Strothman v. Henderson Mental Health Center, Inc., 425 So. 2d
1185 (Fla. 4th DCA 1983); Mason v. Highlands County Bd. of County Com'rs, 817 So.
2d 922 (Fla. 2d DCA 2002); Broad and Cassel v. Newport Motel, Inc., 636 So. 2d 590
(Fla. 3d DCA 1994); Valdes v. Lovaas, 784 So. 2d 474 (Fla. 3d DCA 2001).
[FN67] Mason v. Highlands County Bd. of County Com'rs, 817 So. 2d 922 (Fla. 2d
DCA 2002).
[FN68] Vasquez v. Provincial South, Inc., 795 So. 2d 216 (Fla. 4th DCA 2001).
[FN69] Huie v. Dent & Cook, P.A., 635 So. 2d 111, 113 (Fla. 2d DCA 1994); Simkins

Industries, Inc. v. Lawyers Title Ins. Corp., 696 So. 2d 384 (Fla. 3d DCA 1997);
Suarez v. Gonzalez, 820 So. 2d 342 (Fla. 4th DCA 2002); McCall v. Alabama Bruno's,
Inc., 647 So. 2d 175 (Fla. 1st DCA 1994).
[FN70] Westwood Community Two Ass'n, Inc. v. Lewis, 662 So. 2d 1011 (Fla. 4th
DCA 1995); Strothman v. Henderson Mental Health Center, Inc., 425 So. 2d 1185
(Fla. 4th DCA 1983).
[FN71] Pappalardo v. Richfield Hospitality Services, Inc., 790 So. 2d 1226 (Fla. 4th
DCA 2001).
[FN72] Stagl v. Bridgers, 807 So. 2d 177 (Fla. 2d DCA 2002).
[FN73] See Westwood Community Two Ass'n, Inc. v. Lewis, 662 So. 2d 1011 (Fla.
4th DCA 1995).
[FN74] Walker v. Cash Register Auto Ins. of Leon County, Inc., 946 So. 2d 66 (Fla.
1st DCA 2006), review denied, 959 So. 2d 718 (Fla. 2007).
[FN75] O'Daniel v. Board of Com'rs of Monroe County, 916 So. 2d 40 (Fla. 3d DCA
2005).
[FN76] Orange County Bldg. Codes v. Strickland Const. Services Corp., 913 So. 2d
718 (Fla. 5th DCA 2005).
[FN77] Gonzalez Engineering, Inc. v. Miami Pump and Supply Co., Inc., 641 So. 2d
474 (Fla. 3d DCA 1994).
[FN78] Zuckerman v. A & B Window and Glass, Inc., 930 So. 2d 632 (Fla. 3d DCA
2005); Somerset Village Ltd. Partnership v. Carlton, Fields, Ward, Emmanuel, Smith
& Cutler, P.A., 782 So. 2d 414 (Fla. 3d DCA 2001).
[FN79] Labbee v. Harrington, 957 So. 2d 1188 (Fla. 3d DCA 2007).
[FN80] Albritton v. Ferrera, 913 So. 2d 5 (Fla. 1st DCA 2005); Barthlow v. Jett, 930
So. 2d 739 (Fla. 1st DCA 2006).
[FN81] Albritton v. Ferrera, 913 So. 2d 5 (Fla. 1st DCA 2005)
[FN82] Gahn v. Holiday Property Bond, Ltd., 826 So. 2d 423 (Fla. 2d DCA 2002);
Americana Associates, Ltd. v. WHUD Real Estate Ltd. Partnership, 846 So. 2d 1194
[FN83] Kerzner v. Lerman, 849 So. 2d 1185 (Fla. 4th DCA 2003).
[FN84] Fla. Stat. 57.105(1) (2000).
[FN85] O'Grady v. Potash, 861 So. 2d 1281 (Fla. 3d DCA 2003).

[FN86] Neustein v. Miami Shores Village, 837 So. 2d 1054 (Fla. 3d DCA 2002).
[FN87] Andzulis v. Montgomery Road Acquisitions, Inc., 831 So. 2d 237 (Fla. 5th
DCA 2002); O'Hara Gallery, Inc. v. Nader, 892 So. 2d 512 (Fla. 3d DCA 2004).
[FN88] Cooke v. Custom Crete of Southwest Florida, Inc., 833 So. 2d 315 (Fla. 2d
DCA 2003).
[FN89] Bridgestone/Firestone, Inc. v. Herron, 828 So. 2d 414 (Fla. 1st DCA 2002);
Barthlow v. Jett, 930 So. 2d 739 (Fla. 1st DCA 2006).
[FN90] Dictiomatic, Inc. v. U.S. Fidelity & Guar. Co., 127 F. Supp. 2d 1239 (S.D. Fla.
1999); Suarez v. Gonzalez, 820 So. 2d 342 (Fla. 4th DCA 2002); McCall v. Alabama
Bruno's, Inc., 647 So. 2d 175 (Fla. 1st DCA 1994).
[FN91] 28 U.S.C. § 1927. See also Dictiomatic, Inc. v. United States Fid. & Gty Co.,
127 F.Supp. 2d 1239 (S.D.Fla.1999); Carlucci v. Piper Aircraft Corp., Inc., 775 F.2d
1440, 3 Fed. R. Serv. 3d 325 (11th Cir. 1985); Footman v. Cheung, 341 F. Supp. 2d
1218 (M.D. Fla. 2004), aff'd in part, appeal dismissed in part, 139 Fed. Appx. 144
(11th Cir. 2005); Friskney v. American Park & Play, Inc., 2007 WL 675974 (S.D. Fla.
2007); Bernstein v. Boies, Schiller & Flexner, L.L.P., 416 F. Supp. 2d 1329 (S.D. Fla.
2006), aff'd, 236 Fed. Appx. 564 (11th Cir. 2007).
[FN92] Amlong & Amlong, P.A. v. Denny's, Inc., 457 F.3d 1180, 65 Fed. R. Serv. 3d
1106 (11th Cir. 2006), opinion amended and superseded, 500 F.3d 1230 (11th Cir.
2007).
[FN93] Cordoba v. Dillard's, Inc., 419 F.3d 1169 (11th Cir. 2005).
[FN94] Altadis USA, Inc. v. NPR, Inc., 2004 WL 2624890 (M.D. Fla. 2004); Baker v.
Alderman, 158 F.3d 516, 41 Fed. R. Serv. 3d 1484 (11th Cir. 1998); Pelletier v.
Zweifel, 921 F.2d 1465, 21 Fed. R. Serv. 3d 1217 (11th Cir. 1991); Massengale v. Ray,
267 F.3d 1298, 51 Fed. R. Serv. 3d 225 (11th Cir. 2001); Davis v. Carl, 906 F.2d 533,
61 Ed. Law Rep. 37, 17 Fed. R. Serv. 3d 716 (11th Cir. 1990); Threaf Properties, Ltd.
v. Title Ins. Co. of Minnesota, 875 F.2d 831, 13 Fed. R. Serv. 3d 763 (11th Cir. 1989).
[FN95] Jones v. International Riding Helmets, Ltd., 49 F.3d 692, 31 Fed. R. Serv. 3d
713 (11th Cir. 1995); In re Evergreen Security, Ltd., 318 B.R. 220, 60 Fed. R. Serv. 3d
226 (Bankr. M.D. Fla. 2004).
[FN96] Baker v. Alderman, 158 F.3d 516, 41 Fed. R. Serv. 3d 1484 (11th Cir. 1998);
In re Evergreen Security, Ltd., 318 B.R. 220, 60 Fed. R. Serv. 3d 226 (Bankr. M.D.
Fla. 2004).
[FN97] Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292, 24 Fed.
R. Evid. Serv. 771, 10 Fed. R. Serv. 3d 810 (11th Cir. 1988); Hensley v. Eckerhart,
461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983); Powell v. Carey Intern., Inc.,
547 F. Supp. 2d 1281 (S.D. Fla. 2008).

[FN98] ibid.
[FN99] Ibid.
[FN100] Ibid.
[FN101] Friskney v. American Park & Play, Inc., 2007 WL 675974 (S.D. Fla. 2007).
[FN102] Friskney v. American Park & Play, Inc., 2007 WL 675974 (S.D. Fla. 2007);
Rothenberg v. Security Management Co., Inc., 736 F.2d 1470, 39 Fed. R. Serv. 2d 744
(11th Cir. 1984).
[FN103] See J. Sourini Painting, Inc. v. Johnson Paints, Inc., 809 So. 2d 95 (Fla. 2d
DCA 2002).
[FN104] Roggemann v. Boston Safe Deposit and Trust Co., 670 So. 2d 1073 (Fla. 4th
DCA 1996); Asian Imports, Inc. v. Pepe, 633 So. 2d 551 (Fla. 1st DCA 1994).
[FN105] Guyton v. Leonard Dewey Wilkinson Action Welding Supply, Inc., 707 So.
2d 885 (Fla. 1st DCA 1998).
[FN106] Centex-Rooney Const. Co., Inc. v. Martin County, 725 So. 2d 1255 (Fla. 4th
DCA 1999).
[FN107] Ortega v. Banco Central del Ecuador, 205 F.R.D. 648 (S.D. Fla. 2002), aff'd,
48 Fed. Appx. 739 (11th Cir. 2002); MK Enterprises, LLC v. Wolfe, 844 So. 2d 653
(Fla. 3d DCA 2003).
[FN108] Toyota Motor Credit Corp. v. Dollar Enterprises, Inc., 702 So. 2d 1319 (Fla.
3d DCA 1997).
[FN109] Freedom Sav. and Loan Ass'n v. Biltmore Const. Co., Inc., 510 So. 2d 1141
(Fla. 2d DCA 1987); Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145
(Fla. 1985) (holding modified by, Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d
828 (Fla. 1990)); Travelers Indem. Co. v. Sotolongo, 513 So. 2d 1384 (Fla. 3d DCA
1987); Barton v. McGovern, 504 So. 2d 457 (Fla. 1st DCA 1987) (disapproved of by,
Searcy, Denney, Scarola, Barnhart & Shipley, P.A. v. Poletz, 652 So. 2d 366 (Fla.
1995)); Abdalla v. Southwind, Inc., 561 So. 2d 468 (Fla. 2d DCA 1990); Rodriguez v.
Campbell, 720 So. 2d 266 (Fla. 4th DCA 1998); Role Model Builders, Inc. v. Lanzetta,
2003 WL 729027 (Fla. 3d DCA 2003); Highlands Carpentry Service, Inc. v. Connone,
873 So. 2d 611 (Fla. 2d DCA 2004); Teat v. City Of Apalachicola, 880 So. 2d 819
(Fla. 1st DCA 2004); Baratta v. Valley Oak Homeowners' Ass'n at the Vineyards, Inc.,
928 So. 2d 495 (Fla. 2d DCA 2006).
48 Fed. Appx. 739 (11th Cir. 2002).
[FN111] Jones v. Associates Finance Inc., 565 So. 2d 394 (Fla. 1st DCA 1990); Barton

v. McGovern, 504 So. 2d 457 (Fla. 1st DCA 1987) (disapproved of by, Searcy, Den-
ney, Scarola, Barnhart & Shipley, P.A. v. Poletz, 652 So. 2d 366 (Fla. 1995)); P & S
Properties v. Ganz Plumbing, Inc., 558 So. 2d 458 (Fla. 4th DCA 1990); Jones v. As-
sociates Finance Inc., 565 So. 2d 394 (Fla. 1st DCA 1990); Barakat v. Sharp, 674 So.
2d 174 (Fla. 3d DCA 1996); Guardianship of Halpert v. Rosenbloom, 698 So. 2d 938
(Fla. 4th DCA 1997); Southern Farm Bureau Life Ins. Co. v. Hoover, 833 So. 2d 261
[FN112] Blits v. Renaissance Cruises, Inc., 647 So. 2d 971 (Fla. 4th DCA 1994).
[FN113] Highlands Carpentry Service, Inc. v. Connone, 873 So. 2d 611 (Fla. 2d DCA
2004).
[FN114] Highlands Carpentry Service, Inc. v. Connone, 873 So. 2d 611 (Fla. 2d DCA
2004).
[FN115] Atlantis Bldg. B Condominium Ass'n, Inc. v. Skawski, 544 So. 2d 1069 (Fla.
4th DCA 1989).
[FN116] Fashion Tile & Marble, Inc. v. Alpha One Const. & Associates, Inc., 532 So.
2d 1306 (Fla. 2d DCA 1988); Beisswenger v. Omicron Const. & Development Co.,
Inc., 552 So. 2d 240 (Fla. 4th DCA 1989).
[FN117] High Tech Mica, Inc. v. Baretta & Associates, Inc., 648 So. 2d 286 (Fla. 4th
DCA 1995).
[FN118] Hallowes v. Bedard, 877 So. 2d 953 (Fla. 5th DCA 2004).
[FN119] Manzini & Associates, P.A. v. Broward Sheriff's Office, 976 So. 2d 688 (Fla.
4th DCA 2008).
[FN120] David B. Mishael, P.A. v. Ferrell, Cardenas, Fertel, Rodriguez & Mishael,
P.A., 606 So. 2d 651 (Fla. 3d DCA 1992).
[FN121] World Service Life Ins. Co. v. Bodiford, 537 So. 2d 1381 (Fla. 1989); Royal
Belge v. New Miami Wholesale, Inc., 858 So. 2d 336 (Fla. 3d DCA 2003).
[FN122] Executive Square, Ltd. v. Delray Executive Square, Ltd, 553 So. 2d 803 (Fla.
4th DCA 1989).
[FN123] Glades, Inc. v. Glades Country Club Apartments Ass'n, Inc., 534 So. 2d 723
(Fla. 2d DCA 1988).
[FN124] Browne v. Costales, 579 So. 2d 161 (Fla. 3d DCA 1991); Nickerson v. Nick-
erson, 608 So. 2d 835 (Fla. 3d DCA 1992).
48 Fed. Appx. 739 (11th Cir. 2002).

[FN126] State Farm Fire & Cas. Co. v. Becraft, 501 So. 2d 1316 (Fla. 4th DCA 1986);
Current Builders of Florida, Inc. v. First Sealord Sur., Inc., 2008 WL 2261502 (Fla. 4th
DCA 2008).
[FN127] Salisbury v. Spielvogel, 451 So. 2d 974 (Fla. 4th DCA 1984); Fairways Roy-
ale Ass'n, Inc. v. Hasam Realty Corp., 428 So. 2d 288 (Fla. 4th DCA 1983); Franzen v.
Lacuna Golf Ltd. Partnership, 717 So. 2d 1090 (Fla. 4th DCA 1998).
[FN128] Lubkey v. Compuvac Systems, Inc., 857 So. 2d 966 (Fla. 2d DCA 2003);
Clipper v. Bay Oaks Condominium Ass'n, Inc., 810 So. 2d 541, 544 (Fla. 2d DCA
2002); Allen v. Laabs, 567 So. 2d 53 (Fla. 2d DCA 1990).
[FN129] Dalia v. Alvarez, 605 So. 2d 1282 (Fla. 3d DCA 1992).
[FN130] See G.H. Johnson Const. Co. v. A.P.G. Elec., Inc., 630 So. 2d 1108 (Fla. 2d
DCA 1993).
[FN131] In re One 1972 Volvo Vehicle I.D. # 1426363290699 Florida Tag # NUE
848, 489 So. 2d 1240 (Fla. 4th DCA 1986); Barton v. McGovern, 504 So. 2d 457 (Fla.
1st DCA 1987) (disapproved of by, Searcy, Denney, Scarola, Barnhart & Shipley, P.A.
v. Poletz, 652 So. 2d 366 (Fla. 1995)).
[FN132] Crittenden Orange Blossom Fruit v. Stone, 514 So. 2d 351 (Fla. 1987);
Pridgen v. Agoado, 901 So. 2d 961 (Fla. 2d DCA 2005); Snow v. Harlan Bakeries,
Inc., 932 So. 2d 411 (Fla. 2d DCA 2006).
[FN133] DM Records, Inc. v. Turnpike Commercial Plaza, Phase II, Condominium
Ass'n, Inc., 894 So. 2d 1030 (Fla. 4th DCA 2005).
[FN134] Erickson Enterprises, Inc. v. Louis Wohl & Sons, Inc., 422 So. 2d 1085 (Fla.
3d DCA 1982). Crane v. Barnett Bank of Palm Beach County, 687 So. 2d 1384 (Fla.
4th DCA 1997).
[FN135] Zaremba Florida Co. v. Klinger, 550 So. 2d 1131 (Fla. 3d DCA 1989). See
also Williams v. Florida Memorial College, 453 So. 2d 541, 19 Ed. Law Rep. 456 (Fla.
3d DCA 1984); Franzen v. Lacuna Golf Ltd. Partnership, 717 So. 2d 1090 (Fla. 4th
DCA 1998).
[FN136] Barakat v. Sharp, 674 So. 2d 174 (Fla. 3d DCA 1996).
[FN137] Martin v. Paunovich, 632 So. 2d 611 (Fla. 5th DCA 1993), on reh'g, (Mar. 4,
1994).
[FN138] Pici v. First Union Nat. Bank of Florida, 705 So. 2d 50 (Fla. 2d DCA 1997).
[FN139] Sockolof v. Eden Point North Condominium Ass'n, Inc., 487 So. 2d 1114
(Fla. 3d DCA 1986); State Farm Fire & Cas. Co. v. Palma, 524 So. 2d 1035 (Fla. 4th
DCA 1988), decision approved, 555 So. 2d 836 (Fla. 1990).

[FN140] State Farm Fire & Cas. Co. v. Palma, 524 So. 2d 1035 (Fla. 4th DCA 1988),
decision approved, 555 So. 2d 836 (Fla. 1990).
[FN141] Cosmos Developers, Inc. v. Margaretten and Co., Inc., 704 So. 2d 687 (Fla.
3d DCA 1997). See also State, Dept. of Transp. v. Skidmore, 720 So. 2d 1125 (Fla. 4th
DCA 1998); Shudlick v. Shudlick, 618 So. 2d 740 (Fla. 4th DCA 1993); Chrysler
Corp. v. Weinstein, 522 So. 2d 894 (Fla. 3d DCA 1988); Brown Distributing Co. of
West Palm Beach v. Marcel, 866 So. 2d 160 (Fla. 4th DCA 2004).
[FN142] G & A Bldg. Maintenance v. Makuski, 510 So. 2d 1074 (Fla. 1st DCA 1987).
[FN143] International Bankers Ins. Co. v. Wegener, 548 So. 2d 683 (Fla. 3d DCA
1989), cause dismissed, 557 So. 2d 868 (Fla. 1990); Miami Children's Hosp. v.
Tamayo, 529 So. 2d 667 (Fla. 1988); Royal Belge v. New Miami Wholesale, Inc., 858
So. 2d 336 (Fla. 3d DCA 2003); Lane v. Head, 566 So. 2d 508 (Fla. 1990); Florida Pa-
tient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985) (holding modified
by, Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990)).
[FN144] Lugassy v. Independent Fire Ins. Co., 636 So. 2d 1332 (Fla. 1994).
[FN145] Wackenhut Corp. v. Aetna Cas. and Sur. Co., 423 So. 2d 410 (Fla. 3d DCA
1982); Alston v. Sundeck Products, Inc., 498 So. 2d 493 (Fla. 4th DCA 1986)
(disapproved of by, Perez-Borroto v. Brea, 544 So. 2d 1022 (Fla. 1989)); D & A Ex-
cavating Service, Inc. v. J.I. Case Co., 555 So. 2d 1256 (Fla. 4th DCA 1989).
[FN146] Bell v. U.S.B. Acquisition Co., Inc., 734 So. 2d 403 (Fla. 1999).
[FN147] Sarkis v. Allstate Ins. Co., 863 So. 2d 210, 119 A.L.R.5th 611 (Fla. 2003).
[FN148] Richardson v. Merkle, 646 So. 2d 289 (Fla. 2d DCA 1994).
[FN149] Collins v. Wilkins, 664 So. 2d 14 (Fla. 4th DCA 1995).
[FN150] Bluegrass Art Cast, Inc. v. Consolidated Erection Services, Inc., 870 So. 2d
196 (Fla. 5th DCA 2004).
[FN151] Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990); Lane v.
Head, 566 So. 2d 508 (Fla. 1990); Kaufman v. MacDonald, 557 So. 2d 572 (Fla.
1990).
[FN152] Rosenberg v. Ross, 613 So. 2d 505 (Fla. 3d DCA 1993).
[FN153] Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985)
(holding modified by, Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla.
1990)).
[FN154] Head v. Lane, 495 So. 2d 821 (Fla. 4th DCA 1986).
[FN155] Progressive Exp. Ins. Co. v. Schultz, 948 So. 2d 1027 (Fla. 5th DCA 2007),

review denied, 966 So. 2d 968 (Fla. 2007).

[FN156] Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990).
[FN157] See American Reliance Ins. Co. v. Nuell, Baron & Polsky, 654 So. 2d 289
(Fla. 3d DCA 1995).
[FN158] Pompano Ledger, Inc. v. Greater Pompano Beach Chamber of Commerce,
Inc., 802 So. 2d 438 (Fla. 4th DCA 2001).
[FN159] Department of Transp., State of Fla. v. Robbins & Robbins, Inc., 700 So. 2d
782 (Fla. 5th DCA 1997).
[FN160] American Sign Co. v. Falconer, 696 So. 2d 473 (Fla. 2d DCA 1997).
[FN161] Fla. Stat. 57.104 (1987).
[FN162] Richlin Sec. Service Co. v. Chertoff, 128 S. Ct. 2007 (U.S. 2008)
[FN163] Florida Gas Co. v. Spectra-Physics, Inc., 406 So. 2d 1280 (Fla. 1st DCA
1981); C.B.T. Realty Corp. v. St. Andrews Cove I Condominium Ass'n, Inc., 508 So.
2d 409 (Fla. 2d DCA 1987).
[FN164] Eve's Garden, Inc. v. Upshaw & Upshaw, Inc., 801 So. 2d 976 (Fla. 2d DCA
2001).
[FN165] State Farm Fire & Cas. Co. v. Palma, 629 So. 2d 830 (Fla. 1993). See also
McMahan v. Toto, 311 F.3d 1077 (11th Cir.2002); Mediplex Const. of Florida, Inc. v.
Schaub, 856 So. 2d 13 (Fla. 4th DCA 2003).
[FN166] Condren v. Bell, 853 So. 2d 609 (Fla. 4th DCA 2003).
[FN167] Pepper's Steel & Alloys, Inc. v. U.S., 850 So. 2d 462 (Fla. 2003).
[FN168] Allstate Indem. Co. v. Hicks, 880 So. 2d 772 (Fla. 5th DCA 2004); State
Farm Mut. Auto. Ins. Co. v. Trevino, 904 So. 2d 495 (Fla. 2d DCA 2005).
[FN169] McGowan v. King, Inc., 661 F.2d 48 (5th Cir.1981); Citibank Federal Sav.
Bank v. Sandel, 766 So. 2d 302 (Fla. 4th DCA 2000).
[FN170] Fla. Stat. 687.06 (1973).
[FN171] Sand Dollar Investments, Inc. v. Anja, Inc., 492 So. 2d 1 (Fla. 4th DCA
1986).
[FN172] Parsons v. Trynor, 790 So. 2d 1285 (Fla. 4th DCA 2001).
[FN173] Ericksen v. Fastening Systems, Inc., 932 So. 2d 271 (Fla. 2d DCA 2005).
[FN174] Quality Engineered Installation, Inc. v. Higley South, Inc., 670 So. 2d 929

(Fla. 1996); Mason v. Reiter, 564 So. 2d 142 (Fla. 3d DCA 1990); Visoly v. Security
Pacific Credit Corp., 625 So. 2d 1276 (Fla. 3d DCA 1993); Bremshey v. Morrison, 621
So. 2d 717 (Fla. 5th DCA 1993).
[FN175] Olde Discount Corp. v. Amsel, 800 So. 2d 667 (Fla. 5th DCA 2001).
[FN176] Fla. Stat. 57.105(1) (1999).
[FN177] Fischbach & Moore, Inc. v. McBro, Div. of McCarthy Bros. Co., 619 So. 2d
324 (Fla. 3d DCA 1993).
[FN178] Yakubik v. Board of County Com'rs of Lee County, 656 So. 2d 591 (Fla. 2d
DCA 1995); Crittenden Orange Blossom Fruit v. Stone, 514 So. 2d 351 (Fla. 1987);
Palmetto Federal Sav. and Loan Ass'n v. Day, 512 So. 2d 332 (Fla. 3d DCA 1987).
[FN179] Fla. Stat. 768.28 (1999).
[FN180] City of Jacksonville v. Brooks, 823 So. 2d 184 (Fla. 1st DCA 2002).
[FN181] River Road Const. Co. v. Ring Power Corp., 454 So. 2d 38 (Fla. 1st DCA
1984); George v. Northcraft, 476 So. 2d 758 (Fla. 5th DCA 1985).
[FN182] Frosti v. Creel, 943 So. 2d 1023 (Fla. 2d DCA 2006), review granted, 959 So.
2d 715 (Fla. 2007); Bottcher v. Walsh, 834 So. 2d 183 (Fla. 2d DCA 2002).
[FN183] Westinghouse Elec. Corp. v. Shafer & Miller, Inc., 515 So. 2d 248 (Fla. 3d
DCA 1987); Greenough v. Aetna Cas. & Sur. Co., 449 So. 2d 1001 (Fla. 4th DCA
1984); C.U. Associates, Inc. v. R.B. Grove, Inc., 472 So. 2d 1177 (Fla. 1985).
[FN184] Fixel Enterprises, Inc. v. Theis, 524 So. 2d 1015 (Fla. 1988).
[FN185] Tangerine Bay Co. v. Derby Road Investments, 664 So. 2d 1045 (Fla. 2d
DCA 1995).
[FN186] Gasperin v. Reeves, 664 So. 2d 1062 (Fla. 2d DCA 1995).
[FN187] Eagleman v. Eagleman, 673 So. 2d 946 (Fla. 4th DCA 1996).
[FN188] Coe v. B & D Transp. Services, Inc., 561 So. 2d 469 (Fla. 2d DCA 1990)
(disapproved of by, Timmons v. Combs, 608 So. 2d 1 (Fla. 1992)).
[FN189] Williams v. Brochu, 578 So. 2d 491 (Fla. 5th DCA 1991) (abrogated by,
White v. Steak and Ale of Florida, Inc., 816 So. 2d 546 (Fla. 2002)).
[FN190] Fla. Stat. 768.28(8) (2000).
[FN191] Hellmann v. City of Orlando, 634 So. 2d 245 (Fla. 5th DCA 1994); City of
Jacksonville v. Brooks, 823 So. 2d 184 (Fla. 1st DCA 2002).

[FN192] Gray v. Bradbury, 668 So. 2d 296 (Fla. 1st DCA 1996).
[FN193] Salem v. Abram, 868 So. 2d 1213 (Fla. 2d DCA 2004).
[FN194] Kirkland v. Allstate Ins. Co., 655 So. 2d 106 (Fla. 1st DCA 1995); City of
Live Oak, Fla. v. Harris, 702 So. 2d 276 (Fla. 1st DCA 1997).
[FN195] Riess v. Goldman, 196 So. 2d 184 (Fla. 3d DCA 1967); Commodore Plaza at
Century 21 Condominium Ass'n, Inc. v. Cohen, 350 So. 2d 502 (Fla. 3d DCA 1977);
Machado v. Foreign Trade, Inc., 478 So. 2d 405 (Fla. 3d DCA 1985) (disapproved of
by, Cheek v. McGowan Elec. Supply Co., 511 So. 2d 977 (Fla. 1987)).
[FN196] Mystery Fun House, Inc. v. Magic World, Inc., 417 So. 2d 785 (Fla. 5th DCA
1982).
[FN197] Parham v. Price, 486 So. 2d 34 (Fla. 1st DCA 1986), decision approved, 499
So. 2d 830 (Fla. 1986); Finkelstein v. North Broward Hosp. Dist., 484 So. 2d 1241
(Fla. 1986); Cheek v. McGowan Elec. Supply Co., 483 So. 2d 1373 (Fla. 1st DCA
1985), approved and remanded, 511 So. 2d 977 (Fla. 1987).
[FN198] Stockman v. Downs, 573 So. 2d 835 (Fla. 1991); Wunderle v. Fruits, Nuts &
Bananas, Inc., 715 So. 2d 325 (Fla. 2d DCA 1998); McAskill Publications, Inc. v.
Keno Bros. Jewelers, Inc., 647 So. 2d 1012 (Fla. 4th DCA 1994).
[FN199] Ulico Cas. Co. v. Roger Kennedy Const., Inc., 821 So. 2d 452 (Fla. 1st DCA
2002). See also Patin v. Popino, 459 So. 2d 435 (Fla. 3d DCA 1984); Frumkes v.
Frumkes, 328 So. 2d 34 (Fla. 3d DCA 1976); Bradley Const. Co., Inc. v. Westburne
Supply, Inc., 685 So. 2d 1353 (Fla. 2d DCA 1996).
[FN200] Wentworth v. Johnson, 845 So. 2d 296 (Fla. 5th DCA 2003); Braxton v. Mor-
ris, 914 So. 2d 8 (Fla. 1st DCA 2005), review denied, 944 So. 2d 343 (Fla. 2006).
[FN201] Fisher v. John Carter and Associates, Inc., 864 So. 2d 493 (Fla. 4th DCA
2004) (disapproved of by, Saia Motor Freight Line, Inc. v. Reid, 930 So. 2d 598 (Fla.
2006)).
[FN202] P & R Smith Corp. v. Goyarrola, 864 So. 2d 584 (Fla. 3d DCA 2004); Silver
Springs Properties, L.L.C. v. Era Murray Realties, Inc., 874 So. 2d 712 (Fla. 4th DCA
2004).
[FN203] Fla. Stat. 768.79 (2000).
[FN204] Oglesby-Dorminey v. Lucy Ho's Restaurant/Lucy Ho's Bamboo Garden, Inc.,
815 So. 2d 749 (Fla. 1st DCA 2002).
[FN205] U.S. Fidelity & Guar. v. Martin County, 669 So. 2d 1065 (Fla. 4th DCA
1996).

[FN206] Holm v. Sharp, 715 So. 2d 1159 (Fla. 5th DCA 1998).
[FN207] Dade County v. Davidson, 418 So. 2d 1231 (Fla. 3d DCA 1982); Ruby
Mountain Const. & Development Corp. v. Raymond, 409 So. 2d 525 (Fla. 5th DCA
1982); Finst Development, Inc. v. Bemaor, 449 So. 2d 290 (Fla. 3d DCA 1983); Bern-
stein v. Berrin, 516 So. 2d 1042 (Fla. 2d DCA 1987); Hanley v. Kajak, 647 So. 2d 916
[FN208] Arango v. Cainas, 666 So. 2d 970 (Fla. 3d DCA 1996).
[FN209] Computer Task Group, Inc. v. Palm Beach County, 809 So. 2d 10 (Fla. 4th
DCA 2002).
[FN210] Bateman v. Service Ins. Co., 836 So. 2d 1109 (Fla. 3d DCA 2003); Granoff v.
Seidle, 915 So. 2d 674 (Fla. 5th DCA 2005).
[FN211] Rule 9.130(a)(3)(C)(iv), Florida Rules of Appellate Procedure.
[FN212] Winkelman v. Toll, 632 So. 2d 130 (Fla. 4th DCA 1994); Adlow, Inc. v.
Mauda, Inc., 632 So. 2d 714 (Fla. 5th DCA 1994).
[FN213] Gonzalez Engineering, Inc. v. Miami Pump and Supply Co., Inc., 641 So. 2d
474 (Fla. 3d DCA 1994); Escambia County v. U.I.L. Family Ltd. Partnership, 915 So.
2d 731 (Fla. 1st DCA 2005).
[FN214] Easley, McCaleb & Stallings, Ltd. v. Gibbons, 667 So. 2d 988 (Fla. 4th DCA
1996); Vanderslice v. Vanderslice, 396 So. 2d 1185 (Fla. 4th DCA 1981).
[FN215] Easley, McCaleb & Stallings, Ltd. v. Gibbons, 667 So. 2d 988 (Fla. 4th DCA
1996).
[FN216] Sopena v. Rowland Coffee Roasters, Inc., 716 So. 2d 799 (Fla. 3d DCA
1998); Chatlos v. City of Hallandale, 220 So. 2d 353 (Fla. 1968); O.A.G. Corp. v. Brit-
amco Underwriters, Inc., 707 So. 2d 785 (Fla. 3d DCA 1998) (abrogated by, Caufield
v. Cantele, 837 So. 2d 371 (Fla. 2002)).
[FN217] Caufield v. Cantele, 837 So. 2d 371 (Fla. 2002).
[FN218] G.H. Johnson Const. Co. v. A.P.G. Elec., Inc., 630 So. 2d 1108 (Fla. 2d DCA
1993).
[FN219] Rule 9.400 Florida Rules of Appellate Procedure; Salley v. City of St. Peters-
burg, 511 So. 2d 975 (Fla. 1987).
[FN220] Sierra v. Sierra, 505 So. 2d 432 (Fla. 1987).
[FN221] General Acc. Ins. Co. v. Packal, 512 So. 2d 344 (Fla. 4th DCA 1987).
[FN222] Ocean Beach Resort, Inc. v. Rodack, 586 So. 2d 365 (Fla. 3d DCA 1991).

[FN223] Edward F. Gerace, P.A. v. Hayden, 550 So. 2d 1143 (Fla. 3d DCA 1989).
Westlaw. © 2009 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
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8 FLPRAC § 16:20 Page 1

8 Fla. Prac., Constr. Law Manual § 16:20 (2008-2009 Ed.)

West's Florida Practice Series TM

§ 16:20. Pleading and proof of attorney fees

West's Key Number Digest

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

court must state the basis for such an award.[76]

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

2d 869 (Fla. 4th DCA 1996).

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

review denied, 966 So. 2d 968 (Fla. 2007).

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

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