Business Law 101 / Eviction Trials- Attorney fees

By Albert L. Kelley

In eviction cases, it is common for the parties to hire an attorney to represent them. This is especially true for the landlord. In fact, where the landlord is a corporation the rules require that they be represented by an attorney. Now, common sense may tell you that if the Court rules in your favor, the other side should pay for your attorney. That is not necessarily the case. In Florida, the general rule is that each side has to pay their own legal fees unless there is a written contract that awards fees to the prevailing party or there is a specific statute or rule that authorizes the award of attorney fees.

If you have a written lease, review it to ensure that it has an attorney fee clause. If, however you are suing based on a verbal agreement, you may still be awarded attorney fees. Florida Statute 83.48 states that the court may award fees if either side files suit to enforce the terms of a lease. The problematic word in the statute though is “may”. This is not mandatory. It is up to the Judge whether or not to grant fees. In either case, the Court may only award fees that are “reasonable”.

It is important to note that attorney fees are always reversible. This means if one side can get an award of fees, the other side can as well. This sounds like it makes sense, but a lot of leases specify that only the landlord can receive an award of fees if they win. If the lease grants fees only to the landlord, the Court will interpret the lease to allow the tenant to receive fees as well, if they win.

Even if the Court grants an award of attorney fees, the party receiving the award will likely not receive all the fees they spent. There is a two-step process to obtaining an award of attorney fees. First you have to establish entitlement; second, you have to establish the amount. The rule in Florida is that a party only receives an award of attorney fees up to the time the Court determines they are entitled to an award of attorney fees; however, they are not awarded fees for the time it takes to determine how much those fees are. This is an important distinction, because entitlement is usually determined at the end of the trial, but there will be a separate hearing after the trial to determine the amount of fees to be awarded. The fees for this separate hearing can be substantial and are not awardable.

The separate hearing is not as simple as the lawyer telling the Judge what his fees are. It requires the prevailing party’s attorney submitting an affidavit of everything he did on the case and how much time he spent. He then must testify as to how much time he spent on the case and what his hourly rate was. Then there must be an expert witness who is usually a local attorney to testify that they reviewed the lawyer’s work. The expert then advises the Court what they think a reasonable time and rate would be based on what occurred. The losing party then gets to cross examine both the attorney and the expert witness to show that certain portions of the fees are improper or unreasonable. The losing party can also bring in their own expert to challenge certain portions of the fee. After all of the testimony, the Court will determine what a reasonable time and rate are and calculate the amount of fees to be awarded. The court will also determine how much time the prevailing party’s expert spent preparing and testifying and add their fee to the total fee award.

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University. He is also the author of “Basics of Business Law” “Basics of Florida’s Small Claims Court” and “Basics of Florida’s Landlord-Tenant Law” (Absolutely Amazing e-Books). This article is being offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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