Being Made Whole: Do You Have a Right to Recover Attorney’s Fees Incurred in Winning Your Case?

As a litigator who handles disputes over property, money, inheritances, and business, I often encounter clients who come into my office with the mistaken belief that they will automatically recover their attorneys’ fees if they win their case. A common misconception of the law among non-lawyers is that the losing party has to pay the winning party’s attorneys’ fees.  Unfortunately, the right to recover attorneys’ fees is the exception and not the rule.  

Generally speaking, the winner can only recover attorneys’ fees if the right to recover fees is provided for by a statute or contract.   This can be difficult for clients to understand, as they often hear that the purpose of the civil courts is to make a wronged party “whole.” 

Now that you know that the recovery of attorneys’ fees is the exception and not the rule, how can you better protect yourself now and in the event of a dispute?  If you are a business owner or professional who provides goods or services, one way to be proactive in protecting yourself is to ensure that all of your contracts contain a prevailing party attorney provision.  The wording of these provisions is critical, as there are instances where the courts have found no right to recover fees despite the existence of contractual language that appears to provide for as much.  For example, courts have found that the contractual right to recover “legal costs” does not include the right to recover attorneys’ fees. 

If you are already in a dispute and are not certain whether you have the right to recover your attorneys’ fees if you win, we are glad to consult with you about your case.  There are many Florida and federal statutes that provide for the recovery of attorneys’ fees in myriad situations.  For example, there is a right to recover attorneys’ fees in consumer warranty claims under a federal statute even if the case is brought in state court, and a Florida statute allows for recovery attorneys’ fees arising from deceptive and unfair trade practices.  There are also Florida statutes which allow for attorneys’ fees to be recovered based on a party’s conduct in litigation, including as sanctions for bringing a frivolous claim or defense or for a party’s refusal to accept a reasonable settlement offer if the judgment obtained by the winner ultimately “beats” that offer by a certain amount.

One of the first things I discuss with my clients is whether they have the right to recover attorneys’ fees, as that can factor into the strategy of how to approach a case.  If a client does not have a contractual or statutory right to recover attorneys’ fees, we always need to consider whether the client is likely to spend more litigating a case than she stands to recover.  In this situation, it may not make sense for the client to “throw good money after bad.”  

Whether you are uncertain of your rights under your existing contracts (or worse yet, you are doing business without contracts) or you are in a dispute, we can help you determine and advocate for your rights.  Please contact us to set up a consultation.

Receding from the Economic Loss Rule: How a Major Shift in Contract and Tort Law Could Affect You

    For decades, Florida courts applied a rule that prohibited plaintiffs from recovering damages for economic losses where there existed a contract between the plaintiff and defendant.  The economic loss rule arose in the products-liability context to protect manufacturers from liability for economic damages caused by a defective product beyond those damages contemplated under the product’s warranty.  Over the years, the rule was expanded to eliminate torts for purely economic losses where the parties were in contractual privity.  The rule became so broad that it was frequently applied by courts to dismiss claims so long as a contract covering the same general subject matter existed, without much regard to the actual intellectual underpinnings of the rule.  This drastically changed in 2013, when the Florida Supreme Court receded from prior precedent by limiting the economic loss rule to the products-liability context.  Whether you are a consumer or a business-owner, this change in the law could impact you.

A general understanding of contract and tort law is essential to understanding the economic loss rule.  For the uninitiated, a tort is a civil wrong.  Examples include negligence or fraud.  The law treats torts differently from breaches of contract.  A tort claim is generally based on the breach of a common law or statutory duty owed by the defendant to the plaintiff, whereas a breach of contract claim is based on the failure to honor a contractual obligation.  Economic losses are generally defined as “disappointed economic expectations,” as opposed to damages such as physical injury or damage to other property.  The rationale behind the economic loss rule in the context of contract law is that the parties are in contractual privity, and therefore addressed or could have addressed the remedies for any wrong arising from their relationship.  

This rationale caused courts to apply it to bar many tort claims (with some exceptions for torts arising independent of the contract, such as fraudulent inducement).  Plaintiffs would often have their cases dismissed or decided by summary judgment before ever getting their full “day in court.”  The rule was criticized by many lawyers and judges for being too rigid in its application.  
    
In the case Tiara Condominium Ass'n, Inc. v. Marsh & McLennan Companies, Inc., 110 So.3d 399 (Fla. 2013), the Florida Supreme Court confronted the “unprincipled expansion” of the economic loss rule.  In its ruling, the Court detailed the history of the rule, emphasizing that the rationale for the rule grew out of the products-liability context and the need to protect manufacturers from purely economic damages not covered by their product warranties.  The Court then addressed its concern that many well-established causes of action, including the claim for professional negligence at issue in Tiara, were being essentially eliminated by the rule.  In what was a landmark decision for plaintiffs all over the state, the Court expressly limited the rule to the products-liability context.

The impact of this ruling is significant for consumers and businesses alike.  For consumers, this may mean that you have the opportunity to claim and recover additional damages in litigation.  For business owners, this change in the law may expose your business to additional liability.  Business owners may be able to contract away some of these risks by having more comprehensive contracts.  The risks which cannot be contracted away can be minimized in ways such as adopting better operating procedures and ensuring optimal insurance coverage.  In addition to protecting the business itself, proper business organization and mindful planning and operation will minimize the exposure of the owners and officers. 

Ossi, Withers & Harrison Featured in Business Magazine

 December, 2015 issue of Business in the Heart of Florida Magazine

Ossi, Withers & Harrison, P.A. was featured in the December, 2015 issue of Business in the Heart of Florida Magazine. The article discussed our firms recent expansion and areas of practice. You can read the article online or pickup a copy at many local businesses. A digital copy of the magazine is also available.

Business in the Heart of Florida is published monthly by Advantage Publishing, Inc with a mission to educate, motivate and inspire business leaders in the heart of Florida. Every member of the Gainesville Area Chamber of Commerce, the Alachua Chamber of Commerce, the Alachua Business League, the Newberry/Jonesville Chamber of Commerce and the Builders Association of North Central Florida will receive a mailed copy of the magazine.

Nicolas Harvey joins Ossi, Withers & Harrison

Ossi, Withers & Harrison is growing again. We are pleased to announce that Nicolas B. Harvey is joining the firm as an of counsel attorney. Nick practices in the area of general civil litigation, including commercial litigation, real property litigation, probate and trust litigation, personal injury/wrongful death and products liability.  

Nick was raised in Boca Raton and moved to Gainesville where he became a "Double Gator" attending the Univeristy of Florida for undergraduate and law school. For the past seven years Mr. Harvey practiced law at the Gainesville firm of Siegel Hughes & Ross.

In addition to his legal career, Nick is a member of the James C. Adkins, Jr. Inns of Court, a board member for the Young Lawyers Division of the Eighth Judicial Bar Circuit Association, and a member of the Gainesville Quarterback Club. When Mr. Harvey is not working, he enjoys spending time with his wife, Cindi, his family and friends, playing guitar, attending Gator sporting events, traveling, snowboarding, playing hockey, and cooking.

Welcome to the team, Nick!

The Ossi Law Firm is now Ossi, Withers & Harrison, P.A.

The Ossi Law Firm is pleased to announce that Richard Withers and McCabe Harrison have joined the firm as partners and shareholders. The firm is rebranding as Ossi, Withers & Harrison, P.A.

Susie Ossi founded the Ossi Law firm in 2009 as a boutique estate planning practice. In 2011 McCabe Harrison joined the firm, originally as a law clerk and then as an attorney, and grown his practice of estate planning, probate and trust administration. Richard Withers joined the firm as an of-counsel attorney in 2014 and brings significant experience in the the areas of tax, tax controversy, business planning, business transactions, estate planning, asset protection, business succession planning, and probate and trust administration. 

The partners look forward to continuing to serve their clients and growing their practice.