GARY S. ISRAEL, APPELLANT,
v.
DAYLE T. LEE F/K/A DAYLE T. BAXTER, APPELLEE
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Attorney Gary Israel appealed an order assessing attorney's fees and costs against him jointly with his former client Baxter, following contempt proceedings. The court reversed the assessment of fees and costs against Israel, holding that absent a contract, statutory authority, or creation of a fund, an attorney cannot be held personally liable for opposing party's attorney's fees and costs.
The court reversed the assessment of attorney's fees and costs against Israel. Attorney's fees may be awarded only where authorized by contract, statute, or where the attorney's services create or bring a fund into court—none of which circumstances applied to Israel. Similarly, costs are not awarded unless authorized by statute or agreement. No statute or rule authorized assessing costs against Israel.
[1] Attorney's fees may be awarded only where authorized by contract, statute, or when attorney's services create or bring a fund into court.
[2] The entitlement to attorney's fees is derivative and generally requires an underlying substantive legal basis for the award.
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Join FLexlaw to unlock all legal intelligence“Attorney's fees may be awarded only where authorized by either a contract or by a statute or where the attorney's services create or bring a fund or other property into the court.”
Establishes the legal standard for when attorney's fees can be awarded
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Join FLexlaw to unlock all legal intelligenceAttorney Israel was retained to represent Thomas Baxter in contempt proceedings brought by Baxter's former wife, Dayle Lee. During the proceedings, Is…
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PER CURIAM.
Attorney Gary S. Israel seeks reversal of that portion of an order assessing attorney’s fees and costs against him in favor of the appellee. We reverse.
Israel was retained to represent Thomas Baxter in contempt proceedings which were brought against Baxter by his former wife, Dayle T. Lee (the appellee). During those proceedings, Israel continuously asserted the attorney-client privilege even though the court had ruled the privilege did not apply. He also refused to comply with a subpoena duces tecum and a court order directing him to appear as a court witness. As a result, the court held him in direct contempt and ordered that he be incarcerated in the County Jail until he agreed to comply with the court’s orders.
Israel was granted a stay of sentence pending appeal. Then, in his own name and his own behalf as well as jointly with Baxter as co-appellant, Israel filed a notice and an amended notice of appeal of various orders of the trial court. The argument on appeal focused on two issues. The first, involving only Baxter, was whether the court erred in denying his motion to set aside two of the orders because the evidence was insufficient. The second, involving only Israel, was whether the court erred in holding him in contempt and denying his motion for a protective order. Both issues were decided adversely to both appellants in Baxter v. Lee, 431 So. 2d 994 (Fla. 2d DCA 1983).
In Baxter, this court issued an order provisionally granting appellee’s motion to tax fees and costs in accordance with the rationale announced in Dresser v. Dresser, 350 So. 2d 1152 (Fla. 1st DCA 1977), and remanded with directions to the trial court to determine “the amount of a reasonable fee for such services and the portion of it, if any, that appellants should be required to pay because of disparity in the parties’ needs and abilities to pay.”
Based on our order, appellee filed a motion to assess costs and attorney’s fees against both Baxter and Israel. A hearing was held and the trial court ordered trial costs and attorney’s fees in the amount of $4,500 to be borne only by Baxter; appellate costs and attorney’s fees in the amount of $4,678.70 were to be borne jointly and severally by Baxter and Israel.
The entitlement to attorney’s fees is derivative in nature. Florida Rule of Appellate Procedure 9.400 contemplates an allowance of attorney’s fees in favor of the prevailing party to be paid by the unsuccessful party and, then, only if otherwise authorized by substantive law. See Committee Notes, Fla.R.App.P. 9.400; In re Estate of Crosley, 384 So. 2d 274 (Fla. 4th DCA 1980).
Attorney’s fees may be awarded only where authorized by either a contract or by a statute or where the attorney’s services create or bring a fund or other property into the court. Kittel v. Kittel, 210 So. 2d 1 (Fla.1967); Miller v. Colonial Baking Co., 402 So. 2d 1365 (Fla. 1st DCA 1981); and Polk County v. Deaton, 352 So. 2d 571 (Fla. 2d DCA 1977).
None of these circumstances exist with regard to Israel; no contract exists, no fund was created, and no statutory authority supports such an award.
Accordingly, despite any inference to the contrary in our prior order in Baxter, Dresser makes no mention of an attorney being held personally liable for the attorney’s fees incurred by the opposing party.
Accordingly, the trial court was not authorized to assess attorney’s fees against Israel. See Miller. As to the assessment of costs, it is generally recognized that costs are not awarded unless they are authorized by statute or by the parties’ agreement and that, if awarded, such costs are taxable only pursuant to the statute or rule. Miller. Here we can find no statute or rule authorizing the assessment of costs against Israel. See Miller; The Florida Bar v. Peterson, 418 So. 2d 246 (Fla.1982).
We reverse and remand with directions to strike only those portions of the order appealed which assess attorney’s fees and costs against Israel. We affirm the order in all other respects.
REVERSED AND REMANDED.
RYDER, C.J., and DANAHY and LE-HAN, JJ., concur.
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Moakley v. Smallwood, 826 So. 2d 221 (Fla. 2002)…ENTE, J. We have for review Moakley v. Smallwood, 730 So. 2d 286 (Fla. 3d DCA 1999), a decision of the Third District Court of Appeal, which expressly and directly conflicts with the decision of the Second District Court of Appeal in Israel v. Lee, 470 So. 2d 861 (Fla. 2d DCA 1985), and the First District Court of Appeal in Miller v. Colonial Baking Co., 402 So. 2d 1365 (Fla. 1st DCA 1981). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. The conflict issue presented in this case is whether a trial c…
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Patsy v. Rosanne M. Patsy, 666 So. 2d 1045 (Fla. 4th DCA 1996)…concluded that they have the inherent power to assess attorney’s fees for litigating in bad faith are collected in Attorney’s Liability Under State Law for Opposing Party’s Counsel Fees, 56 A.L.R.4th 486 (1987). On the other hand, in Israel v. Lee, 470 So. 2d 861 (Fla. 2d DCA 1985), the trial court assessed attorney’s fees against counsel for refusing to comply with court orders and a subpoena, and the second district reversed, holding that in the absence of a contractual provision or a statute there was no…
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Diosdado Diaz and Dennis Haber, Esq. v. Rina Cohan Diaz & Leinoff & Silvers, P.A., 826 So. 2d 229 (Fla. 2002)…PARIENTE, J. We have for review Diaz v. Diaz, 727 So. 2d 954 (Fla. 3d DCA 1998), a decision of the Third District Court of Appeal, which expressly and directly conflicts with the decision of the Second District Court of Appeal in Israel v. Lee, 470 So. 2d 861 (Fla. 2d DCA 1985), on the issue of whether trial courts possess the inherent authority to assess attorneys’ fees as monetary sanctions against counsel for bad faith conduct during the course of litigation. We have jurisdiction. See art. V, § 3(b)(3…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kittel v. Anne B. Kittel, 210 So. 2d 1 (Fla. 1967)
- Peavy v. State, 350 So. 2d 1152 (Fla. 1st DCA 1977)
- Dresser v. Dresser, 350 So. 2d 1152 (Fla. 1st DCA 1977)
- Miller v. Colonial Baking Co. OF Ala. & Am. Motorists Ins. Co., 402 So. 2d 1365 (Fla. 1st DCA 1981)
- In re Est. of Marguerite Crosley, 384 So. 2d 274 (Fla. 4th DCA 1980)
- Polk Cnty. v. Deaton, 352 So. 2d 571 (Fla. 2d DCA 1977)
- THE Florida BAR v. Peterson, 418 So. 2d 246 (Fla. 1982)