Second DCA holds you can get “fees for fees”—if it is in your contract

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.

Register Now for Second District eDCA Access

Florida’s Second District Court of Appeal is now accepting registration for its new eDCA system, which will go live for filing on March 1st. If you are a Second District practitioner, be sure to register now, so that you are ready to transition next week. Now is also a good time to update any staff on new procedures, if they (or you) are not familiar with using the eDCA system. As we’ve previously reported, Clerk Mary Beth Kuenzel announced the transition to eDCA earlier this month at the Breakfast with the Second DCA CLE, and things are moving along on the pace she outlined at the breakfast. Be ready!

Second DCA to Switch to eDCA System

At this Morning’s State of the Second DCA CLE, Clerk Mary Beth Kuenzel announced a big and imminent change in the way that Court will be processing changes: as soon as March 1st, the Court will have transitioned to the eDCA filing system, and away from the Florida Court’s Portal. What does this mean for practitioners? If you are used to practicing in other DCAs, this transition won’t be too difficult, but for folks who only know the Portal, there will be some adjustment needed.

Sign Up Early. Watch the Clerk’s Website for the chance to sign up for eDCA in the next week. You’ll want to get your registration processed before it goes live and you need to file. You need a separate login for each District’s eDCA system.

Be Ready to Effectuate Separate Service. While eDCA provides “Case Mail” as soon as something is filed, that does not count as Service under Florida Rule of Judicial Administration Rule 2.516. You have to go back to sending a separate email for service.

Instant Orders. What we give up with service, we’ll get back tenfold by getting Court orders and opinions by email instead of U.S. Mail. This will save the Clerk more than $50,000 a year in postage, and save attorneys a lot of hassle, too.

Record on Demand. With eDCA, attorneys of record can download from the docket any DCA filing, including the Record on Appeal once transmitted. No more need for the FTP work around, which worked, but was time intensive for Court staff.

Briefs on Demand. Registrants to the system will also be able to pull briefs in cases where they are NOT counsel of record. Pretty handy if you are briefing the same issue!

Portal for Payment. The Second District will still be on the portal for one reason — to accept payment of filing fees. If you pay through the portal, plan to upload a simple payment transmittal letter, and ONLY a payment transmittal letter. Any other document or pleading will be kicked.

The hope is that the portal will be ready to work with the DCA internal docketing systems by Spring of 2018, and at that point, all of them will switch to the portal. But for now, all DCAs will require separate eDCA login.

Editor’s Note: We were in such a rush to get out this news, we forgot to mention the payment issue. This article is updated to reflect that information!