I WON THE FLORIDA LAWSUIT! I WANT MY ATTORNEYS FEES PAID ! recent Florida attorneys fee case reveals why you can’t get that money from non parties

Attorneys fees in Florida litigation and Florida trials often become an important part of the case. A party to a Florida lawsuit may only recover attorneys fees from the losing side if there is a contract or a specific Florida statute. This is an exception to the American rule which provides, generally, that each party to a lawsuit pays their own way.

In the Florida probate litigation world, in Florida inheritance lawsuits, and certainly in the Florida probate process, there are Florida statutes, probate, estate, and trust laws, which provide a Florida probate court judge with the authority to make one party pay the other side’s attorney’s fees. A Florida probate court judge may also decrease your inheritance, from an estate, or a trust, and direct from what part of the probate estate or Florida trust, meaning your inheritance, attorneys fees may be paid from.

Attorneys fees in Florida are generally not recoverable, absent a statute or contract, unless you are able to seek those attorneys fees as an element of damages. In Florida trials, in that case, you generally need to plead attorneys fees as “special damages”.

So, you may get the sense that attorneys fees in Florida are are not guaranteed and that there are unique rules and laws regarding recovering your attorneys fees from a Florida trial. Attorneys fees may be recovered in Florida estate, probate and trust proceedings, including lawsuits, and they generally involve a separate, special hearing just on “entitlement” to Florida attorney’s fees, and then the amount of attorney’s fees. Attorneys fees hearings, so-called “mini trials”, have become a subspecialty within the area of Florida probate litigation and Florida estate litigation. The same holds true for trust disputes in Florida trust litigation. Florida Attorneys fees hearings involve proving your entitlement to Florida attorneys fees, and then, sometimes in a separate hearing, demonstrating that the hourly rates charged, and the amount of time billed for, are reasonable.

Regardless, a very recent Florida appeals court opinion was just handed down, literally days ago. The Florida appeals court spoke about whether Florida attorneys fees could be assessed against a third-party, a nonparty to a lawsuit, who was later brought into the lawsuit— after the Florida trial. Specifically the Florida appeals court considered whether a third-party to whom money was transferred by the “wrongdoer”, or the losing party, would be responsible for paying an attorneys fees order against the original party which was the losing party. Put another way, consider this: let’s say you’re being sued, and you lose the lawsuit. There was a Florida statute that was involved regarding Florida attorneys fees. The trial court in Florida awards the winning side their attorneys fees. You have to pay damages, and, now, also, Florida attorneys fees. But you, the losing side, can’t pay the attorney’s fees. So, what happens? You know that the winning side is not going to give up. The winning side to the Florida trial is going to try to figure out a way to get their attorneys fees paid. After all, the winning side has an order from a Florida trial court that says they get attorneys fees.

In Florida, the winning side to a trial or a Florida lawsuit, begins “proceedings supplementary”, which are a discovery process and other legal procedures typically intended to find a source of payment to satisfy a judgment or, in this case a Florida attorneys fees order. So in this case, after the trial, and after the Florida judgment, and after the award of attorneys fees in favor of the winning side, proceedings supplementary began in Florida. Before the same Florida trial court.

During the Florida proceedings supplementary, it is learned that the losing side transferred assets to entities that were evidently owned or controlled by the losing side. So the question becomes: can the winning side collect  attorneys fees  from these entities which have the losing side’s money? Remember, these third parties, these entities, are owned or controlled by the losing side.

The Florida appeals court answered “no.” Even though the losing side to the Florida trial transferred money to third-party, nonparties to this trial, these corporate entities, and even though the losing side owned or controlled those third-party entities, the court did not make those third parties pay the Florida attorneys fees order. The reason for this, according to the Florida appeals court, was that the third parties, called the “impleaded parties”, are not liable for attorneys fees and costs of the original losing party. The trial court had no lawful authority to award attorneys fees, or costs for that matter, against any party that was not an original party to this lawsuit: even when there were proceedings supplementary. Even when the winning side prevailed in the Florida lawsuit. Even when the prevailing party.in order from the trial court awarding attorneys fees.

Now, there may be causes of action against the third parties that the winning side has. Is another Florida lawsuit brewing?

The lesson from this case is if you are seeking attorneys fees in a Florida trial court, understand, in advance, were you may get paid from, and where you may not get paid from. And then figure out how you are going to get paid damages and Florida attorneys fees.  This may involve filing a new Florida lawsuit against some third parties, or bringing in third parties to be involved in the Florida lawsuit. For a complete copy of this recent Florida appeals case involving attorneys fees, please email Michelle@pankauskilawfirm.com.