Florida/Georgia Personal Injury & Workers Compensation

...oes not by itself create a tort where a tort otherwise does not exist. Concerning the award of attorneys' fees, we hold that they are not recoverable by statute. The trial court found that the Tenants were eligible for attorneys' fees under sections 83.48 [2] and 83.49(3)(c), [3] Florida Statutes (1977). The district court correctly held these two sections inapplicable. Section 83.48 requires the litigation to be "with respect to the rental agreement." In the instant case, the Tenants' action was not bottomed on the rental agreement but rather the FHA regulatory agreement....

...lord. No liability was urged or claimed or adjudicated against the Landlord predicated upon any obligation, covenant or promise under the rental agreements. The gravamen of the Tenants' claim was embedded solely in terms of the regulatory agreement. Section 83.48 is applicable only where a landlord under a rental agreement is entitled by its terms to recover attorneys' fees from a tenant....

...econd) of Torts § 536 (1977) as their independent torts. At oral argument, Tenants conceded the absence of fraud and deceit and instead relied upon Restatement § 536 as well as the "torts" of "violation of a federal statute" and "restitution." [2] 83.48 Attorney's fees....

...We see nothing wrong with that and disagree with the mutuality of remedy premise. Attorney's fees are in derogation of the common law, Great American Indemnity Company v. Williams, 85 So.2d 619 (Fla. 1956), and by analogy were not normally obtainable in landlord tenant cases prior to the adoption of Section 83.48, Florida Statutes (1981), which provides: If a rental agreement contains a provision allowing attorney's fees to the landlord, when he is required to take any action to enforce the rental agreement, the court may also allow reasonable attorney's fees to the tenant when he prevails.......

...In contract cases, and in the majority of statutes addressing attorney's fees, a person establishes an entitlement to attorney's fees by prevailing in the litigation. See, e.g., § 57.105, Fla. Stat. (1999) (providing sanctions for raising unsupported claims or defenses); § 83.48, Fla.Stat....

...medy in contract cases. As the Committee on Judiciary Staff Analysis noted, before 1988, "[v]arious chapters of the Florida Statutes provide[d] that with regard to particular types of contracts, the prevailing party [was] entitled to attorneys fees, Section 83.48, Florida Statutes, (residential rental agreements), or that if a contract provided prevailing party attorney's fees to one party, the other party [was] also entitled to prevailing party attorneys fees, Section 718.125, Florida Statutes,...

...n documentary evidence regarding appellee's purported ownership interest in the property, and the award of attorney's fees. We affirm the trial court in total but discuss only the award of court costs which contains an item for attorney's fees under section 83.48, Florida Statutes (1983). The rental agreement between the parties was executed on June 6, 1983. Section 83.48, Florida Statutes (1983), effective June 22, 1983, [1] provides: Attorney's fees....

...When *520 that problem is presented a correct analysis compares the effective date of the statute with the date of the contract containing the provision for attorney's fees. However, for several reasons, we are not concerned with that problem in this case. First, in this case the statute, section 83.48, Florida Statutes, provides for the attorney's fees but we are not involved with a contractual provision relating to attorney's fees....

...in the particular litigation, but compares the effective date of the statute providing for court costs with the date of the accrual of the cause of action in the litigation as to which the court costs, including attorney's fees, are an adjunct. [5] Section 83.48, Florida Statutes, which treats attorney's fees as an item of court costs, became effective June 22, 1983, long before the cause of action in this case accrued to the appellee tenant....

...pellee's award of attorney's fees as costs under the statute below is affirmed and his motion for attorney's fees on appeal is granted. AFFIRMED. COBB and COWART, JJ., and DANIEL, C.W., Associate Judge, concur. NOTES [1] Prior to the 1983 amendment, section 83.48, Florida Statutes (1981) provided for an award of attorney's fees to a tenant only when the rental agreement contained a provision allowing attorney's fees to the landlord....

...must be presented by the party claiming them as part of his proof of damages in the case. See Mystery Fun House, Inc. v. Magic World, Inc., 417 So.2d 785 (Fla. 5th DCA 1982). However, when attorney's fees are recoverable as costs, such as here under section 83.48, Florida Statutes, or under section 713.29, Florida Statutes (which provides for attorney's fees to be taxed as part of costs to the prevailing party in a mechanic's lien case), attorney's fees may be taxed as costs in a motion which ne...

...dent tort was neither alleged nor proved. We are bound by a long-standing and unbroken line of authority to reverse the punitive damage award. [6] B. Attorneys' Fees The trial court awarded the tenants attorneys' fees under the authority of Sections 83.48 and 83.49(3)(c), Florida Statutes (1977). They provide: "§ 83.48 — Attorney's Fees — If a rental agreement contains a provision allowing attorney's fees to the landlord when he is required to take any action to enforce the rental agreement, the court may allow reasonable attorney's fees to the tenant wh...

..."§ 83.49(3)(c) — If either party institutes an action in court of competent jurisdiction to adjudicate his right to the security deposit, the prevailing party is entitled to receive his court costs plus a reasonable fee for his attorney... ." (emphasis supplied). First, with respect to Section 83.48, Guthartz admits that the rental agreements *604 contain a clause "allowing attorney's fees to the landlord," but argues that Section 83.48 is inapplicable, because the tenants' action was not, as required, "with respect to the rental agreement," but instead was based on the FHA regulatory agreement of which the tenants were third-party beneficiaries, but which was no part of the rental agreements....

...Hatch, 288 So.2d 564 (Fla.2d DCA 1974). Applying that rule of strict construction to the present case, and finding that the tenants' act was not one "with respect to the rental agreement," we must agree that the attorneys' fee award was not authorized by Section 83.48, Florida Statutes (1977)....

...The trial court awarded $38,500 in rent to the tenants as unjust enrichment, because it determined that the rent was advance rent which should have been segregated by the landlord from the landlord’s other monies. We disagree that the $66,000 rental payment constituted advance rent under the Landlord and Tenant Act. Section 83.48(9) defines “advance rent” as “moneys paid to the landlord to be applied to future rent payment periods, but does not include rent paid in advance for a current rent payment period.” Section 83.49(1) requires that the landlord ho...

...We see nothing wrong with that and disagree with the mutuality of remedy premise. Attorney's fees are in derogation of the common law, Great American Indemnity Company v. Williams, 85 So.2d 619 (Fla. 1956), and by analogy were not normally obtainable in landlord tenant cases prior to the adoption of Section 83.48, Florida Statutes (1981), which provides: If a rental agreement contains a provision allowing attorney's fees to the landlord when he is required to take any action to enforce the rental agreement, the court may also allow reasonable attorney's fees to the tenant when he prevails......

...ng attorney's fees to D.W. Sutton ("Sutton"). We conclude that the judgment must be reversed. The Scruggs filed a second amended complaint for eviction and ejectment against Sutton. For the eviction count, the Scruggs requested attorney's fees under section 83.48, Florida Statutes (2004)....

...constructive trust in Sutton's favor. The judgment was appealed and affirmed by this Court. See Scruggs v. Sutton, 932 So.2d 206 (Fla. 3d DCA 2006) (table). Sutton filed his motion for attorney's fees asserting that he was the prevailing party under section 83.48....

...The Scruggs opposed the motion because Sutton never pled a claim for attorney's fees except in the prayer for relief in count II of his counterclaim seeking a resulting trust. The trial court granted Sutton's motion for attorney's fees finding that attorney's fees are defined as costs in section 83.48 and a prevailing party under the statute is entitled to costs without pleading entitlement thereto....

...ive defenses in response to the Scruggs' complaint. Sutton argued, however, that he was the prevailing party because he successfully defended the eviction action, and that, as the prevailing party, he was entitled to costs. He pointed out that under section 83.48, Florida Statutes, "the party in whose favor a judgment or decree has been rendered may recover reasonable court costs, including attorney's fees, from the nonprevailing party." The trial court accepted this argument, ruling that "[t]he...

...Tyler, 890 So.2d 246 (Fla.2004) (absent an independent statutory or contractual basis, attorney's fees are not recoverable in declaratory relief or quiet title actions). The fact that Sutton requested fees in his count for a resulting trust is insufficient to support an award of fees under section 83.48 for defeating the eviction action....

...and reserved jurisdiction to determine entitlement to attorney's fees. Appellant filed a motion seeking a determination of her entitlement to attorney's fees and costs. [2] She claimed fees based on a provision in the sale agreement and pursuant to section 83.48, Florida Statutes (2007)....

...AFFIRMED IN PART; REVERSED IN PART AND REMANDED. JACOBUS, J., concurs. GRIFFIN, J., dissents with opinion. GRIFFIN, J., dissenting. I respectfully dissent because I conclude that we lack jurisdiction to review the order denying attorney's fees to Gaccione under section 83.48, Florida Statutes....

...Gaccione filed suit for breach of a residential lease agreement and prevailed. During the hearing that resulted in the appealed order, Gaccione asserted two theories for entitlement to recover attorney's fees: a separate purchase and sale contract between the parties and section 83.48, Florida Statutes. Section 83.48, which is part of the chapter dealing with landlord/tenant issues, is one of a handful of Florida statutes that authorizes the recovery of a reasonable attorney's fee to the prevailing party as an element of costs: In any civil action b...

...ement to Attorney's Fees and Costs be and the same is hereby denied as to attorney's fees, the Court reserving ruling as to Court Costs pending further proceedings in this case." In my view, this order is interlocutory as to the claim for fees under section 83.48 because the fees are considered part of costs. The decision by the trial court not to award attorney's fees pursuant to section 83.48 is not reviewable until the court properly enters a cost order....

...The majority seems to suggest that attorney's fees awardable as a taxable cost pursuant to statute are not really a taxable cost. However, Xanadu of Cocoa Beach, Inc. v. Lenz, 504 So.2d 518 (Fla. 5th DCA 1987), the very case on which the majority relies for the principle that section 83.48, Florida Statutes, authorizes recovery of Gaccione's attorney's fees even though he did not plead a claim for fees under the statute, is premised on the fact that it is a cost....

...must be presented by the party claiming them as part of his proof of damages in the case. See Mystery Fun House, Inc. v. Magic World, Inc., 417 So.2d 785 (Fla. 5th DCA 1982). However, when attorney's fees are recoverable as costs, such as here under section 83.48, Florida Statutes, or under section 713.29, Florida Statutes (which provides for attorney's fees to be taxed as part of costs to the prevailing party in a mechanic's lien case), attorney's fees may be taxed as costs in a motion which ne...

...Chatlos, 236 So.2d 761 (Fla.1970); Allen v. Dutton, 384 So.2d 171 (Fla. 5th DCA 1980). Classification of fees as a cost affects when and how it has to be claimed and when and how it is to be reviewed. The fact that the judge is not going to change his mind about the ruling on the section 83.48 fee claim does not make it final....

...What makes it final is inclusion of the ruling on this element of costs in a costs order. Because this claim for fees is an element of costs, the denial has to be reviewed, along with all the other costs, after a costs order has been entered. *1012 The majority decision to hear and resolve the appeal of the claim under section 83.48 may seem expedient, but I have no doubt that it will have consequences beyond this case....

...aited to take the appeal from the costs order. NOTES [1] Appellee contends that we lack jurisdiction to address that aspect of the order denying fees under the statute because the court reserved jurisdiction to determine the amount of costs. Because section 83.48, Florida Statutes, arguably treats fees as costs, Appellee contends that the order is not final until the trial court sets the amount of costs....

...Cantele, 837 So.2d 371, 375 (Fla.2002) (emphasis added). We think entitlement to attorney's fees presents a distinct question from taxable costs, irrespective of how it is labeled in the statute. See Scruggs v. Sutton, 970 So.2d 853, 854 (Fla. 3d DCA 2007) (litigant must plead for fees under section 83.48 even though labeled costs)....

entitlement to attorney’s fees pursuant to section 83.48, Florida Statutes. Because there is no landlord/tenant

...at 430 , 107 S.Ct. at 774 . In addition, since state law allows the recovery of court costs from the tenant only after a “judgment or decree” has been entered in the landlord’s favor, it provides no authority for the County’s actions. See Fla.Stat.Ann. § 83.48 (West 1987)....

...The rental agreement involved here contains a provision allowing attorney's fees to landlord when he is required to institute suit for the collection of rent. There is no provision authorizing attorney's fees to tenant under any circumstances. In the case of residential rentals, Section 83.48, Florida Statutes (1979) converts a provision which permits the landlord to recover his attorney's fees from a defaulting tenant into a reciprocal right to attorney's fees in a tenant who prevails in litigation involving his tenancy....

...Berger (Hollywood), for appellee. Before LOGUE, LINDSEY, and LOBREE, JJ. LINDSEY, J.  Appellants/defendants below, Benjamin and Jeniya Nemani, appeal the trial court’s order denying their motion for attorney’s fees. Because the award of attorney’s fees pursuant to section 83.48, Florida Statutes (2021), is permissive and because there is no transcript of the trial court’s hearing on the Nemanis’ motion for fees, we affirm. This case stems from a property dispute between the Nemanis and appellee/plaintiff below, Nasser Sachmechi....

...ctment actions.” Ward v. Estate of Ward, 1 So. 3d 238, 239 (Fla. 1st DCA 2008) (citing §§ 2  Upon the county court’s dismissal of the eviction action, the Nemanis moved for attorney’s fees under § 83.48....

...s proceeding as a claim for ejectment. After a hearing, the county court denied the Nemanis’ motion for attorney’s fees and Sachmechi’s motion for sanctions. There is no transcript of this hearing. The Nemanis timely appealed. Section 83.48 provides in relevant part: In any civil action brought to enforce the provisions of the rental agreement or this part, the party in whose favor a judgment or decree has been rendered may recover reasonable attorney fees and court costs from the nonprevailing party. The right to attorney fees in this section may not be waived in a lease agreement. (Emphasis added). Therefore, an award under § 83.48 is permissive, not mandatory....

...at allows the prevailing party to recover attorney’s fees in any civil action to enforce the provisions of the rental agreement, Part I, which applies to nonresidential tenancies contains no such provision). CONNER and ARTAU, JJ., concur. 1 See § 83.48, Fla....

...Plaintiff then filed a pro se supplemental trial brief explaining that her original fee motion contained a clerical error as to the statute it cited as a basis for fees and stated that “[t]here are two attorney fee provisions that apply in this landlord/tenant action: one is Florida Statute 83.48 and the other is the lockout statute, FS 83.67.” Additionally, the memo mentioned that Plaintiff had previously moved for sanctions against Defendant under section 57.105, Florida Statutes (2016), for asserting frivolous claims after constructively evicting Plaintiff....

...0(b). 1 1 We also note that no argument was raised below or on appeal that Plaintiff was entitled to attorney’s fees as costs. However, in Xanadu of Cocoa Beach, Inc. v. Lenz, 504 So. 2d 518 (Fla. 5th DCA 1987), a case involving fees sought under section 83.48, Florida Statutes (1983), which contained statutory language regarding attorney’s fees as costs, the Fifth District observed that “when, as here, attorney’s fees are provided by statute as an item of costs, it is immaterial whether the underlying cause of action, as to which the court costs are appurtenant, is ex contractu or ex delicto. Court costs are not incidental to contracts but to causes of actions.” Id. at 520. We further note that in 1983, section 83.48 provided that “the party in whose favor a judgment or decree has been rendered may recover reasonable court costs, including attorney’s fees, from the nonprevailing party.” Id. (emphasis added) (quoting § 83.48, Fla. Stat. (1983)). In 2013, section 83.48 was amended to make an award of attorney’s fees separate from the award of costs....

...Case No. 2022CA008018. Lisa M. Boswell of Lisa M. Boswell, P.A. Wellington, for appellant. No appearance for appellees. PER CURIAM. Affirmed. See Ortuzar v. Foley, 339 So. 3d 456, 458 (Fla. 2d DCA 2022) (holding that the reference in section 83.48, Florida Statutes (2022), to a “judgment” requires a “final adjudication of the merits of an action” to trigger entitlement to attorney’s fees); Aquino v. Choy, 367 So. 3d 538, 538– 39 (Fla. 4th DCA 2023) (affirming the denial of an award of prevailing party attorney’s fees based upon section 83.48, because the statute “does not provide that attorney’s fees will inure to the prevailing party; it provides that a party in whose favor a judgment or decree has been rendered may recover fees from the nonprevailing party ....

...is motion to assess attorney’s fees against the landlord. We affirm. Gilbert’s tort action was based upon the landlord’s breach of a duty imposed by the Florida Residential Landlord and Tenant Act, section 83.51(l)(a), Florida Statutes (1983). Section 83.48 of the statute limits the recovery of attorney’s fees to the prevailing party in an action brought to enforce the provisions of a rental agreement....

...Majewski of Wasson & Associates, Chartered, Miami, and Jeffrey S. Greenhaus of Jeffrey S. Greenhaus, P.A., Miami, for appellants. Kai E. Jacobs of South Florida Business Law Group, Coral Gables, for appellee. PER CURIAM. Affirmed. See Ortuzar v. Foley, 339 So. 3d 456, 458–59 (Fla. 2d DCA 2022) (“Section 83.48[, Florida Statutes (2022)] does not provide that attorney’s fees will inure to ‘the prevailing party’; it provides that a party in whose favor ‘a judgment or decree has been rendered’ may recover fees from the nonprevailing party ....

are entitled to a reasonable attorney’s fee, Section 83.48, Florida Statutes (1981), the amount of which

...In doing so, the trial court “[made] no finding or ruling herein as to the entitlement by either party to an award of reasonable . . . Attorney’s Fees or Costs.” The Tenants subsequently filed a Motion for Attorney Fees and Costs, seeking fees under section 83.48, Florida Statutes (2021)....

...$23,564.00. Following a hearing, the court awarded $15,449.50 in attorney’s fees and costs to the landlord. From this judgment, the tenant appeals. • The Analysis The tenant argues that because the lease contained no fee provision and section 83.48, Florida Statutes (2022), prohibits fee awards for personal injury claims arising from habitability issues, the court had neither a statutory nor contractual basis to award fees. We disagree. Because this action was based on a residential lease, section 83.48 provides the landlord a statutory basis for fees. See § 83.48, Fla....

...nt tort was neither alleged nor proved. We are bound by a long-standing and unbroken line of authority to reverse the punitive damage award. 6 B. Attorneys’ Fees The trial court awarded the tenants attorneys’ fees under the authority of Sections 83.48 and 83.49(3)(c), Florida Statutes (1977), They provide; “§ 83.48 — Attorney’s Fees — If a rental agreement contains a provision allowing attorney’s fees to the landlord when he is required to take any action to enforce the rental agreement, the court may allow reasonable attorney’s fees to the t...

...“§ 83.49(3)(c) — If either party institutes an action in court of competent jurisdiction to adjudicate his right to the security deposit, the prevailing party is entitled to receive his court costs plus a reasonable fee for his attorney.. .. ” (emphasis supplied). First, with respect to Section 83.48, Gu-thartz admits that the rental agreements *604 contain a clause “allowing attorney’s fees to the landlord,” but argues that Section 83.48 is inapplicable, because the tenants’ action was not, as required, “with respect to the rental agreement,” but instead was based on the FHA regulatory agreement of which the tenants were third-party beneficiaries, but which was no part of the rental agreements....

...Hatch, 288 So.2d 564 (Fla.2d DCA 1974). Applying that rule of strict construction to the present case, and finding that the tenants’ act was not one “with respect to the rental agreement,” we must agree that the attorneys’ fee award was not authorized by Section 83.48, Florida Statutes (1977)....

...The attorney’s fees awarded by the court included work done while seeking to represent a class even though no class was certified. It seems axiomatic that the award of class action attorney’s fees requires a class action. The court awarded the fee on the basis of section 83.48 which authorizes fees to “the party in whose favor a judgment or decree has been rendered ......

...aw or fact in the counterclaim, and reserved jurisdiction to award attorney’s fees pursuant to section 57.105, Florida Statutes (1991). Appellant moves for a rehearing claiming that it was error for the court to award attorney’s fees pursuant to section 83.48, Florida Statutes (1991), when the court only reserved jurisdiction in its final judgment to award fees pursuant to section 57.105, Florida Statutes (1991). Since the motion for attorney’s fees under chapter 83 of the Florida Statutes was filed two months after the final judgment was entered, the motion was untimely and the trial court lacked jurisdiction to impose the fee pursuant to section 83.48, Florida Statutes (1991)....

So. 3d 820, 822 (Fla. 4th DCA 2010). 4 Section 83.48 provides: Attorney fees.—In any civil