Attorney’s fees are a big part of any dispute. And the attorney’s fees should be because fees are a factor and can ultimately drive the outcome of a dispute. No one wants to spend $100,000 in fees to recover $100,000, so the conversation regarding attorney’s fees needs to be had early.
Generally, a party can recover reasonable attorney’s fees if authorized by contract or by statute. So, there would need to be a prevailing party attorney’s fees provision in a contract, if suing on a contract, or there would need to be a statute authorizing the recovery of attorney’s fees, if suing on a statute. Then, there is authority that the party still needs to prevail on the significant issues in the dispute, as determined by the trial court (or binding arbitrator), in order to be the prevailing party for purposes of attorney’s fees. (Absent that, you are dealing with a proposal for settlement to create a procedural basis to recover fees, which is explained here.) Reasonable attorney’s fees, however, does not mean you will recover 100% of your attorney’s fees. Some percentage will presumably be discounted meaning becoming 100% whole when factoring in attorney’s fees is not always a practical outlook.
Why am I discussing this? This is why.
In a recent dispute, Nova Southeastern University, Inc. v. Garratt-Callahan Co., 50 Fla.L.Weekly D2247a (Fla. 4th DCA 2025), a university sued three professionals for deficiencies in its complex cooling system. The university sued the mechanical engineer as well as two consultants engaged to oversee the treatment and maintenance of this cooling system. Claims sounded in professional negligence as to the engineer and professional negligence and breach of contract as to the consultants. The University settled with the engineer and one of the consultants. The issue with the remaining consultant was attorney’s fees. The University sought ALL of its attorney’s fees incurred in connection with the dispute claiming the fees against the remaining defendant were inextricably intertwined with the settling defendants. This was a significant cost as the University was seeking more than $1.2 Million in fees alone, which was an amount that had been discounted by its own attorney’s fees expert. The trial court, however, only awarded the University about $177,000 in attorney’ fees, which was a sizeable reduction to the attorney’s fees being claimed. The reason being was that the fees were NOT inextricably intertwined. I think we can all agree that not recovering more than $1 Million in attorney’s fees is a big consideration!
The University appealed…and lost…with the appellate court containing an important discussion on attorney’s fees when suing multiple parties and claiming the fees are inextricably intertwined:
“[T]he party seeking fees has the burden to allocate them to the issues for which fees are awardable or to show that the issues were so intertwined that allocation is not feasible.” “Claims are ‘inextricably intertwined’ when a ‘determination of the issues in one action would necessarily be dispositive of the issues raised in the other.’ ” “In other words, where the claims involve a ‘common core’ of facts and are based on ‘related legal theories,’ a full fee may be awarded unless it can be shown that the attorneys spent a separate and distinct amount of time on counts as to which no attorney’s fees were sought.” In contrast, “claims are separate and distinct when they could support an independent action and are not simply alternative theories of liability for the same wrong.”
We find that the trial court did not err in finding that the claims against the defendants were not inextricably intertwined. The claim against [the mechanical engineer] was for professional negligence based on [the engineer’s] defective and deficient design. In contrast, the claims against [the two consultants] were for breach of contract and professional negligence relating to servicing the system. Additionally, [the two consultants] had different servicing contracts with [the University] that encompassed different periods of time and imposed different obligations. The agreement with [one consultant] required it to “furnish all the water quality testing and treatment services to ensure and maintain optimum operation of [the University’s] chilled water air conditioning systems.” In contrast, the agreement with [the other consultant] included a bid proposal, which reflected its obligation “to supply a high quality water chemical treatment service program to maintain peak operating efficiencies, with no deposition, corrosion, and biological growth prevention.” The proposal included detailed pages of specific water treatment services, encompassing areas of chemical feed and monitoring equipment, equipment inspection, various corrosion inhibitors, steam boiler treatment, corrosion monitoring, microbiological control, biocide treatment, chemical delivery, salt delivery and application, water/coupon/deposit analysis, and on-site service requirements. As [the remaining consultant’s] expert testified, there was a massive contamination during the time that [the other consultant] performed its obligations under the agreement. As a result, [the remaining consultant] inherited that contamination when it signed its agreement in 2016.
The claims would only be inextricably intertwined where a “determination of the issues in one action would necessarily be dispositive of the issues raised in the other.” Since a finding that [the engineer] negligently designed the system would not necessarily have any bearing on whether [the two consultants] breached their respective contracts or were negligent, then these claims, as a result, would not be intertwined. Similarly, a finding that [one consultant] breached its contract or negligently maintained the system would not necessarily be dispositive as to whether [the remaining consultant] breached its contract or negligently maintained the system, which occurred after [the other consultant’s] maintenance term. The claims were “separate and distinct” because “they could support an independent action and are not simply alternative theories of liability for the same wrong.”
Nova Southeastern University, Inc., supra (internal citations omitted).
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.