In prior articles I have discussed that courts apply the significant issues test to determine the prevailing party for purposes of being entitled to attorney’s fees.   A party that recovers an affirmative judgement is NOT the de facto prevailing party for purposes of an entitlement to attorney’s fees in a breach of contract action (or a construction lien foreclosure action).  This was the issue in a recent appeal discussed here where the party that recovered an affirmative judgment on a breach of contract case was not deemed the prevailing party for purposes of attorney’s fees.  While the party prevailed on one of its claims, it did not prevail on others, and it recovered less than half of the damages it originally sought.  The appellate court, affirming the trial court, held that the trial court has discretion to determine that the party that recovered an affirmative judgement was not the prevailing party entitled to its attorney’s fees under the signifiant issues test.  This was not what the party was expecting when the attorney’s fees it expended far exceeded the judgment it recovered.

There is not an objective, brightline standard to determine which party should be deemed the prevailing party for purposes of an attorney’s fees award.  There is subjectivity involved at the discretion of the trial court.  This is a valuable consideration as the case progresses and there are decisions relating to settlement.  Banking on recovering attorney’s fees is not always the wisest of choices.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.


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