In Florida, attorney fees are typically not recoverable unless specifically authorized by contract, statute, court rule, or a recognized exception. Moreover, for a court to actually award attorney’s fees to one side or the other if the contract authorizes it, the contract’s language must be clearly and precisely worded without any vagueness or ambiguity.
In our experience, the most effective way to ensure you can even ask for an award of attorney fees is to insert a specific section or clause into your contracts that allows for their recovery in litigation. When drafting such a provision, it’s essential to clarify whether attorney fees are mandatory or discretionary, who bears the responsibility for paying them, and whether the award covers reasonable or actual attorney fees incurred by the prevailing party. It’s worth noting that a provision requiring payment of a fixed sum of attorney fees is unenforceable, but reasonable attorney fees may include costs for services rendered both at trial and on appeal.
In contract disputes, attorney fees are treated as damages rather than costs. Therefore, the correct procedure is to include the attorney fee provision in the pleadings alongside the request for damages, rather than presenting the claim for attorney fees to the trial court as taxable costs. In cases where the terms of a contract stipulate that the non-breaching party is entitled to attorney fees in the event of a breach, there’s no need to include a provision in your pleadings, as the contract already addresses the matter.
As always, if you have any questions about buying or selling a business or business law generally, please don’t hesitate to contact us!