In its decision last week in DeCicco v. 180 Grant Street, LLC, the Massachusetts Supreme Judicial Court (SJC) answered a previously open question, confirming that a defendant who successfully moves to dismiss a complaint in which the plaintiff obtained a lis pendens is entitled to recover not only its trial court attorneys’ fees but also the fees it incurs on appeal, assuming the trial court’s decision is affirmed.
Full Answer
Specifically, Lopez v. Bank of America, N.A., 2D12-1270, 2014 WL 1245609 (Fla. 2d DCA 2014) clarifies recovery of attorney’s fees when they are awardable but not plead by a defendant in a dismissed lawsuit.
This agreement and its performance are subject to Rule 1.5 of the Rules of Professional Conduct adopted by the Massachusetts Supreme Judicial Court. WE EACH HAVE READ THE ABOVE AGREEMENT BEFORE SIGNING IT. to perform the legal services mentioned in paragraph (1) below. The lawyer agrees to perform them faithfully and with due diligence .
(7) [USE IF LAWYER IS SUCCESSOR COUNSEL] The lawyer is responsible for payment of former counsel's reasonable attorney's fees and expenses and the cost of resolving any dispute between the client and prior counsel over fees or expenses.
A lawyer shall not enter into an arrangement for, charge, or collect: (1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or (2) a contingent fee for representing a defendant in a criminal case.
Any employer who discharges or discriminates against an employee forcomplaining about wage or other violations under this chapter, or fortestifying or intending to testify about said violations, shall be subject to civilpenalties, and liable for up to two months wages, and reasonableattorney’sfees.
(a) Except as otherwise provided in this section, any creditor who fails to complywith any requirement imposed under this chapter or any rule or regulation issuedthereunder...is liable [for]...: actual damages; liquidated damages (calculateddifferently for individual and class actions); and (3) In the case of any successfulaction to enforce the foregoing liability or in any action in which a person isdetermined to have a right of rescission under §10, the costs of the action, togetherwith a reasonableattorney’s feeas determined by the court.
51B Investigation of Report of Abuse(o) No employer shall discharge, discriminate or retaliate against a mandatedreporter who, in good faith, provides such information, testifies or is about totestify in any proceeding involving child abuse or neglect unless such personperpetrated or inflicted such abuse or neglect. Any employer who discharges,discriminates or retaliates against such a person shall be liable to such personfor treble damages, costs and attorney's fees.
In litigation, under the right set of facts and law, the losing party is responsible for the attorney’s fees of the prevailing party. But, this determination is not always so simple. This post explores a recent decision where the litigants were entitled to fees under the contract, but fees were not plead in the answer and the case was voluntarily dismissed. Specifically, Lopez v. Bank of America, N.A., 2D12-1270, 2014 WL 1245609 (Fla. 2d DCA 2014) clarifies recovery of attorney’s fees when they are awardable but not plead by a defendant in a dismissed lawsuit.
There is no generally applicable statute entitling a prevailing party to recover attorney’s fees. Although parties can expand the ordinary definition of costs to include attorney’s fees, as occurred in Lopez, this does not abrogate the requirement that attorney’s fees must be pleaded. [i] Thornber v.
While there are some exceptions to this general rule, none applied to the facts in Lopez. [iii] As such, the Lopez court held that when a plaintiff voluntarily dismisses a complaint, a defendant may be awarded attorney’s fees as costs under rule 1.420 (d) if (1) the parties’ contract or a statute defines fees as an element of costs and (2) the defendant either had given notice that he was claiming fees in responsive pleadings or falls within an applicable exception. Lopez v. Bank of America, N.A., 2D12-1270, 2014 WL 1245609 (Fla. 2d DCA 2014).
Whether commercial or residential properties are involved, neighbor disputes run the gamut from loud noise, to cars parked in front of driveways, to tree roots or overhanging limbs, and to boundary line disputes. The list of things neighbors can get into fights about is endless and often emotionally charged.
Yes, attorneys are costly so you should decide how important the dispute is to you before retaining an attorney. Moreover, attorney’s fees are often not recoverable in neighbor disputes. Code of Civil procedure section 1033.5 (a) (10) (A)- (C) provides that attorney’s fees are recoverable as costs only when authorized by contract, statute, or law.
However, under certain circumstances, attorney’s fees may in fact be recoverable to a party who prevails in a neighbor dispute. That is, Penal Code section 496 (a) states: “Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, ...
However, in addition to other factors, such as future good relations with your neighbor and the aggravation of litigation, whether Penal Code section 496 appears to apply to your neighbor dispute should also be a factor to consider when deciding whether to hire an attorney to have a court resolve the dispute.