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Properly Preserving Your Right to Attorney's Fees in Litigation- It Is Not Enough to Just Put Your Adversary on Notice That You Are Demanding Attorney's Fees in the Litigation

One of the very first questions that clients always ask their attorney is, “if I win, can I get my attorneys’ fees back.” If there is a contractual or statutory basis for attorneys’ fees, and if you are the prevailing party, then the answer typically is yes, but only if you properly preserve the right to do so.

And how do you properly preserve the right to collect prevailing party attorneys’ fees? The Sixth District Court of Appeal recently addressed this very question in the case of Vickers v. Malpeli. In Vickers, the defendant, who was the prevailing party after a non-jury trial, appealed the trial court’s denial of her request for attorney’s fees based upon an attorney’s fees provision in a contract. In response to the complaint, the defendant in Vickers filed a motion to dismiss, and within that motion, she requested an award of attorney’s fees. When her motion was denied, the defendant filed an answer to the complaint that did not repeat her attorney’s fees request. The case proceeded for over two years, and, at one point, the defendant filed a motion for summary judgment that again included her request for attorneys’ fees. After prevailing at trial, the trial court rejected the defendant’s request for attorneys’ fees.

The issue for resolution for the Sixth District Court of Appeal on the request for attorneys’ fees is whether the claims for attorneys’ fees made in the motion to dismiss and motion for summary judgment are sufficient to permit the court to award those fees under Florida law. The Vickers court held that under Florida law a claim for attorney’s fees, whether based upon contract or statute, must be pled, and that means the defendant was required to have stated her request for attorneys’ fees in the answer to the complaint. The request for attorneys’ fees contained in the motions filed were insufficient and on such basis, the appellate court ruled that the trial court properly denied her request for attorney’s fees. The takeaway from this case is that a request for attorneys’ fees must be pled in a pleading, which includes a complaint, answer, or counterclaim – not a motion.

This case highlights the importance of following proper procedures to avoid waiving critical rights, such as the right to attorney’s fees. It is always important to hire and consult with counsel in all stages of litigation. Rosenthal Law Group is here to assist you in all your litigation needs.