Fees on Fees Rejected by Third District
Two new decisions from Florida’s Third District Court of Appeal make clear that parties should generally not assume they will be awarded attorney’s fees the time spent litigating the amount of attorney’s fees, even if they have a statutory or contractual basis for an award of attorney’s fees generally.
In Diaz v. Kasinsky, No. 3D19-1188 (Fla. 3d DCA Aug. 12, 2020), the Court held that a trial court did not abuse its discretion in declining to award fees on fees in an situation where the trial court had otherwise awarded attorney’s fees as an inherent sanction under the Florida Supreme Court’s decision in Moakley v. Smallwood, 826 So.2d 221 (Fla. 2002). Relying on Moakley and the general rule that shifting attorney’s fees to the other side is against the “American Rule” that each party bear its own fees and costsm, the Court explained that the power to shift fees must be construed narrowly, and held that “Moakley does not provide automatic entitlement to additional attorneys’ fees incurred in securing an underlying sanctions award.” Applying this test, the court find the trial court had acted within its discretion in denying fees on fees.
The Diaz court cites the court’s recent decision in Silver Law Group, P.A. v. Bates, No. 3D19-933, 2020 WL4495452 (Fla. 3d DCA Aug. 5, 2020) as standing for the proposition that Section 57.105, Fla Stat. does not provide a basis for an award of fees for attorneys’ time incurred litigating the amount of fees. The Silver decision does not discuss that case’s facts in detail, but notes that the rule against awarding fees on fees is not new: it reverses “the portion of the award that represents fees incurred for litigating the amount of fees.” based on a citation to a 25 year old case, Eisman v. Ross, 664 So. 2d 1128, 1129 (Fla. 3d DCA 1995).