When Does Winning Feel Like Losing?

Alex BarthetContracts

When Does Winning Feel Like Losing?

  • Winning can feel like losing when it comes to legal fees
  • Always include a standard prevailing party attorney’s fee provision in your contract

Sometimes winning can feel like losing when it comes to legal fees. Imagine that you have invested thousands, or tens of thousands, or even maybe hundreds of thousands of dollars in legal fees to win a case and now you have won. Great, but you still have to recover your attorney’s fees to be made whole. Here are the things you need to consider in order to recover your legal fees.

Did you have a contract with your contractor that gave you the right to recover legal fees if you sue them and won?

A standard prevailing party attorneys fee provision is written like this: “The prevailing party in any action to enforce the terms of this contract is entitled to recover their legal fees and the cost at trial and appeal”. This can be written in hundreds of different ways but all basically say the same thing. If you win, you should recover your legal fees and costs. So, look through your contract, does it have a provision that says something like that? If it does, you may be entitled to recover your legal fees under your contract. If it doesn’t have clear and unequivocal language to support this right to recover legal fees, then even if you win on the contract, you may not be able to recover your legal fees on the contract.

Did you sue or were you sued for violation of a statute and does that statute provide for the recovery of attorney’s fees?

In construction, there are two standard statutes that are commonly used when it comes to the recovery of attorney’s fees. One of them is Chapter 713.29, the attorney’s fees provision within the lien statute. As an owner, was a lienor trying to foreclose a lien on your property and you won? You prevented them from foreclosing on the lien. This makes you the prevailing party in the case and you may be able to recover the attorney’s fees. Was the claim that you brought against a contractor’s bond? If it is, you may be able to recover fees under the second statute that is commonly used. This is Chapter 627 of Florida statutes.

Did you win the case on the issues that give you the right to recover attorney’s fees and were those the substantial issues?

You sued the contractor for construction defects and breach of your contract, but that contract had no right to recover attorney fees. At the same time, you also defeated his lien for $2,000. The judge has the right to determine if each of those issues and which of these issues were the substantial issues in the case. In the example above, the breach of contract on construction defects may be far in excess of the value of a small lien and as a result you may have prevailed on the substantial issues in the contract action but not entitled to recover fees. The judge can also determine that neither party is entitled to recover their legal fees because neither party won on the substantial issues in the case.

If you did prevail on some of the issues in the case that entitled you to fees, how much of the case was related to that?

Using the same example, let’s say the judge allowed you to prevail on the lien action because you won and it was $2,000, and you spent $10,000 dealing with that lien. But you spent $90,000 dealing with a construction defect issue that didn’t have a right to recover fees for either party. The judge could decide to award you $10,000 because you won on the lien issues but neither party gets the fees on the other issues. So, keep in mind that even if you prevail on some issues that may only give you the right to recover the fee on those issues and not the fees in the entire case.