Should the Contingent Nature of Representation Be Considered In Awarding Attorney's Fees ?
In Bell v. U.S.B. Acquisition Co., 734 So. 2d 403 (Fla. 1999), the court rejected an argument that the contingent nature of the representation should not be considered in awarding reasonable attorney's fees under a contractual prevailing party provision.
The court specifically referred to the criteria in rule 4-1.5 in holding that a contingency fee multiplier may be applied to court-awarded attorney's fees that are authorized by a contractual provision rather than a statute.
Significantly, we stated:
Even if we were to dispense with utilizing a multiplier in a contract case, one of the factors set forth in rule 4-1.5(b) . . . is whether the fee is fixed or contingent.
Thus, even without a multiplier, the court would be authorized to award a greater fee based on the contingent nature of the fee agreement, or reduce a fee award where there was no risk of nonpayment.
In fact, an upward adjustment of a fee under these circumstances would be analogous to a court's application of a multiplier. Id. at 411.
Further, the Court has adopted a forced, rather than a strict, construction of an unambiguous statute in rejecting the contingent nature of the representation as one of the "relevant criteria" in determining the reasonableness of a fee award under section 768.79(7)(b).
Strict construction in favor of a party receiving a sanction is required only when the statutory language being construed is ambiguous.
When there is no ambiguity, there is no need to resort to principles of statutory construction. See Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) ("When the language of the statute is clear and unambiguous . . . there is no occasion for resorting to rules of statutory interpretation and construction . . . .").
In that instance, "strict" construction is the same as simply applying a statute as it is written.