Ordinarily, where an attorneys’ fee award is available, a party is entitled to fees for litigating the entitlement to those fees, but not the amount. The Second District Court of Appeal has now recognized that this rule is not absolute, and the language of an attorney fee provision in a contract can provide for a more extensive award.
In Trial Practices, Inc. v. Hahn Loeser & Parkes, LLP, 2D13-6051 & 2D14-86 (Fla. 2d DCA Apr. 12, 2017), Trial Practices (“TPI”) sued its former client for legal consulting services, claiming entitlement to a percentage of the client’s settlement of a third-party lawsuit. The client prevailed against TPI, and the judgment was affirmed on appeal.
The client then sought an award of attorneys’ fees pursuant to the Consulting Agreement between himself and TPI. The Consulting Agreement stated:
[the] prevailing party in any action arising from or relating to this agreement will be entitled to recover all expenses of any nature incurred in any way in connection with the matter, whether incurred before litigation, during litigation, in an appeal, . . . or in connection with enforcement of a judgment, including, but not limited to, attorneys’ and experts’ fees.
The trial court entered an award of fees that included a significant amount “attributed to [the client’s] attorney’s litigation of the issue of the amount of attorneys’ fees and costs.” On appeal, the Second District held that the language of the “Consulting Agreement” was sufficiently broad to encompass this “fees for fees” award.
The Second District held that this case, in which fees were sought pursuant to contract, is distinguished from cases in which fees were sought pursuant to statute—where “fees for fees” is generally unavailable. The Court also recognized that Florida law allows parties to “freely contract on the issue of attorney[s’] fees,” and that courts are not permitted to rewrite contracts to relieve parties of their obligations.
The Second District also held that attorneys who testified as fact witnesses in the original trial were entitled to receive reasonable compensation for their assistance, and that the “Consulting Agreement” was sufficiently broad to allow an award of overhead expenses as part of a cost award. It did reverse, in part, for the trial court to itemize a bulk cost award in the judgment, and determine which costs were taxable and which costs were not taxable; and to change the date from which prejudgment was calculated.
In sum, if a party is seeking an award of attorneys’ fees pursuant to a broad contractual provision, the fee award may encompass not only time spent in litigating entitlement to fees, but also to litigating the amount.