Person responding to subpoena entitled to costs of production

In this case, the trial court ordered a third party to produce documents that were alleged to be confidential, and denied the third party its costs in providing the production.  The appellate court affirmed on the confidentiality issue, but reversed on the costs issue, holding, “The failure to make provision for the cost to a non-party to produce subpoenaed documents constitutes a departure from the essential requirement of law.”

First Call Ventures, LLC v. Nationwide Relocation Services, Inc., 38 Fla. L. Wkly D2431a (Fla. 4th DCA Nov. 20, 2013)


Plaintiff estopped from denying liability for attorneys’ fees

The Plaintiff in this Homeowner’s Association case lived and owned a home within a multi-association community.  His neighborhood was governed by a Homeowners Association and the collection of neighborhoods in his community, each consisting of an individual Homeowners Association, were collectively governed by a Master Association. Plaintiff filed suit alleging that the Master Association had failed to comply with certain provisions of Chapter 720, Florida Statutes.

more Chicago suburbs from the air
Scorpions and Centaurs / Travel Photos / CC BY-NC-SA

After a hearing, the trial court entered final summary judgment in favor of the Master Association. The Master Association thereafter moved for and was awarded prevailing-party attorney’s fees pursuant to section 720.305(1), Florida Statutes.

Plaintiff argued on appeal that he was not liable for attorneys’ fees because he was not actually a member of the Master Association, and, therefore, the applicable fee shifting language within section 720.305(1) did not apply.

The 5th DCA found, as a matter of statutory interpretation, that he was a member, but, more interestingly, also found that Plaintiff was “estopped from denying liability” for attorneys’ fees.

By filing suit, Plaintiff “held himself out to be a member of the Master Association with standing to sue under section 720.305(1).”  The Plaintiff could not claim he was a member with standing to file suit, then deny that he was a member in an attempt to avoid fee liability.

ROSENBERG v.  METROWEST MASTER ASS’N, INC., et al., 38 Fla. L. Weekly D1476a, (Case No. 5D12-4062 July 5, 2013).

Defaulted Party Still Entitled to Hearing on Attorneys’ Fees – ZHOU v. CATERPILLAR FINANCIAL SERVICES CORP.

Caterpillar filed a complaint for damages and replevin against three defendants. After service on the defendants, they failed to answer, and Caterpillar secured a clerk’s default against them all. Two of the defendants attempted to set aside the default and Caterpillar filed its motion for final judgment based upon the clerk’s default.

The summary judgment and motions to set aside the default were at the same time. The trial court upheld the entry of the clerk’s default and entered final summary judgment in favor of Caterpillar. The final judgment included the award of attorneys’ fees based on an affidavit filed by Caterpillar.

The Fourth DCA found that the defaulted defendants were still entitled to have an opportunity to contest unliquidated damages, like attorneys’ fees.

Zhou v. Caterpillar Financial Services Corp., 38 Fla. L. Weekly D112a (Fourth DCA Jan 9, 2013)

Offer of Judgment Not Valid in Case With Monetary and Non-monetary Claims – Horowitch v. Diamond Aircraft Indus., Inc.

In a case seeking monetary and non-monetary relief, pursuant to section 768.79, Florida Statutes (2011), Diamond Aircraft served Horowitch with an offer of judgment for $40,000. The offer of judgment stated:

 Diamond Aircraft offers to settle this case on the following terms:

1. Diamond Aircraft shall pay Plaintiff the sum of forty thousand dollars ($40,000.00).

2. This offer is intended to resolve all claims that were or could have been asserted by Plaintiff against Diamond Aircraft in the Amended Complaint filed March 15, 2007. The condition of this offer is that Plaintiff will dismiss his pending claims against Diamond Aircraft, with prejudice to re-file.

3. This offer shall remain open for thirty (30) days from the date hereof. Failure to accept this offer within thirty (30) days shall be deemed a rejection of this offer under Fla. Stat. § 768.79(1).

4. This offer shall be accepted by filing a written acceptance with the Court within 30 days after service. Fla. Stat. § 768.79(4).

The offer was not accepted and, after entry of judgment, Diamond Aircraft sought fees per 768.79.

The Florida Supreme Court determined that Diamond Aircraft was not entitled to recover its attorneys’ fees because “section 768.79 does not apply to cases that seek both equitable relief and damages.”   The court left open the door open to the use of an offer that was intended to settle only the monetary portion of the lawsuit, rather than the entire claim.

DIAMOND AIRCRAFT INDUSTRIES, INC. v. ALAN HOROWITCH, 38 Fla. L. Weekly S17a (Fla.  Jan. 10, 2013).

Denial of Fee Award Due to Insufficient Expert Testimony – Raza v. Deutsche Bank

In this foreclosure case, the trial court dismissed the lender’s case for failure to comply with a court order.  The borrower, Raza, moved for prevailing party attorneys’ fees under a flat-fee agreement.  The trial court denied the motion because the expert affidavit failed to state a reasonable number of hours incurred in the case.  The appellate court affirmed, holding, “We have no transcript of the fee hearing, the order on review is not facially erroneous, and Mr. Raza’s proof failed to demonstrate a reasonable fee.”

Raza v. Deutsche Bank, 37 Fla. L. Wkly D2243c (Fla. 2d DCA Sept. 1, 2012)

Prevailing Party Entitled to Recover Attorneys’ Fees Paid by Third Party – Rogers v. Vulcan Manufacturing Co., Inc.

Following a suit for breach of contract, the prevailing party moved to recover attorneys’ fees pursuant to the terms of the contract, which provided:

(c) In any action to enforce any term, condition, or provision of this agreement, the prevailing party shall be entitled to recover the reasonable attorney’s fee incurred to enforce same.

The trial court denied the award of fees because it found that the entirety of the prevailing party’s attorneys’ fees were paid by a third party.  According to the trial court, this meant that the prevailing party had no fees to recover.  The 1st DCA reversed finding that the plain intent of the agreement was that the “loser pays, and the winner does not.”  According to the 1st DCA, denying the award of attorneys’ fees because the prevailing party had to have a third party cover his fees would result in an inequitable windfall for the losing party.  As such, the prevailing party was entitled to recover attorneys’ fees paid by the third party.

Rogers v. Vulcan Manuf. Co., Inc., Case No. 1D11-3927 (Fla. 1st DCA June 1, 2012).

Failure to Plead For Attorneys Fees – Imseis v. Zaher

The Plaintiff in this lawsuit lost his claims for cancellation of a deed, ejectment, and equitable lien.  The Court entered judgment and included language in the judgment that reserved ruling on attorneys’ fees.  The Plaintiff appealed as the Defendant neither party pled a fee claim.

The Second DCA found that neither party could recover their fees and that the judge’s inclusion of language reserving the right to award fees was improper.  “A claim for attorneys’ fees must be pleaded, whether based on contract or statute.”  citing BMR Funding, LLC v. DDR Corp., 67 So. 3d 1137, 1140 (Fla. 2d DCA 2011) (citing Stockman v. Downs, 573 So. 2d 835, 837 (Fla. 1991)). See also Florida Rule of Civil Procedure 1.525 (“Additionally, a timely motion is required.”)

Imseis v. Zaher, Case No. 2D10-5990 (Fla. 2d DCA April 4, 2012)

Overturning Sanctions for Failure to Make Specific Factual Findings – Cox v. Great American Insurance Co.

At issue in this appeal before the Fourth DCA was the trial court’s award of sanctions, pursuant to Florida Rule of Civil Procedure 1.730(c), for a parties violation of a mediation agreement.  The Fourth DCA determined that the imposition of sanctions per Rule 1.730(c) required specific factual findings as to the breach or failure to perform under the terms of the mediation agreement.  Instead, the trial court had merely entered an order summarily granting such fees without stating the basis for the determination of fee entitlement.

Cox v. Great American Insurance Co., 37 Fla. L. Wkly D686a (Fla. 4th DCA March 21, 2012)

River Bridge Corp. v. American Somax Ventures – Attorneys’ Fees

After the appeals court issued an opinion partially reversing an $8 million final judgement, the trial court was required to hold a new hearing on attorneys’ fees.  The trial court had entered a fee award while the appeal was pending.  After the appeals court partially reversed the underlying judgment, the trial court, without hearing, simply entered an order reaffirming the prior attorneys’ fee award.  The 4th DCA determined that the trial court should have held an additional hearing to determine the proper amount of fees in light of the partial reversal.

The 4th DCA’s reasoning was based on Fla. R. Civ. P. 1.540(b)(5), which provides for relief from a judgment where such judgment is based on a prior judgment that has been “reversed or otherwise vacated.”  The 4th DCA’s prior decisions have required an evidentiary hearing where a party sought to set aside judgment per Rule 1.540(b).  See Schuman v. Int’l Consumer Corp., 50 So.3d 75 (Fla. 4th DCA 2010).

River Bridge Corp. v. American Somax Ventures, 36 Fla. L. Wkly D2615 (4th DCA Nov. 30th, 2011).

Ramle Int’l Corp. v. The Greens Condo. Assoc., No. 3D08-2834 (Fla. 3d DCA Feb. 10, 2010)

In this attorneys’ fees case, Ramle Int’l prevailed at trial and was awarded attorneys’ fees as part of the judgment. The trial court reserved jurisdiction as to the amount of fees and Ramle waited eleven months to file its motion to determine the amount of attorneys’ fees owed.

After Ramle moved for a determination of fees, The Greens Condo filed a brief in opposition arguing that Ramle waived its right to seek attorneys’ fees by failing to file its motion within 30 days of judgment, which they argued was required by Rule 1.525, Fla. R. Civ. Pro. The trial court then denied Ramle’s fee motion as untimely and The Greens Condo appealed.
The Third DCA reversed the trial court, finding that the time limit in Rule 1.525 only applied to the determination of entitlement to fees, not in cases where the Court has already established entitlement.  Citing Amerus Life Ins. Co. v. Lait, 2 So.3d 203, 207 (Fla. 2009).