Florida Statute § 768.79 Update: Fee-Shifting Penalty Does Not Apply In Attorney Charging Lien Disputes

An opinion by the Florida Sixth District Court of Appeal on November 14, 2025 clarifies the scope of Florida's fee-shifting penalty statute, section 768.79.

The statute, often used to require the losing party to pay the opposing side's fees after rejecting a settlement offer, does not apply to attorney's lien disputes involving unpaid fees. The Court's decision reinforces a narrow interpretation of the statute: its fee-shifting provisions apply strictly to actions for money damages and do not extend to non-party claims or equitable remedies.

The Core Issue: Offers of Judgment in Lien Enforcement

The case stemmed from a fee dispute after a law firm (former counsel) withdrew from litigation and filed a Notice of Charging Lien. The former client—a party in the underlying suit—served formal Offers of Judgment upon the former counsel in an effort to utilize the statutory fee-shifting provisions of section 768.79.

After the former client prevailed on a motion to strike the former counsel's attempt to enforce the lien, the client moved to recover its attorney's fees based on the unaccepted Offers of Judgment. The trial court denied the fee motion, a decision the Sixth District Court of Appeal affirmed.

The Sixth District's ruling is a significant reminder that the offer-of-judgment statute and its corresponding procedural rule (Florida Rule of Civil Procedure 1.442) must be strictly construed because they are in derogation of the common law "American Rule," which requires each party to bear their own attorney's fees.

The Sixth District's Three Pillars of Rationale

In affirming the denial of the former client's fee motion, the Sixth District established three primary reasons why the offer-of-judgment statute could not be applied in the ancillary charging lien proceeding:

1. The Nature of the Action: Equity, Not Damages

Section 768.79 explicitly applies only to "any civil action for damages." The Court reiterated the long-standing principle that an effort to enforce an equitable lien is, by its nature, an action in equity, rather than an action for damages. Since the plain language of the statute clearly limits its application to damages actions, the equitable lien enforcement proceeding fell outside the statute's scope. This reaffirms a broader principle: the statute does not apply to lawsuits seeking non-monetary remedies, such as injunctions or declaratory judgments.

2. The Status of the Attorney: Non-Party

The offer-of-judgment scheme applies to offers exchanged between "parties" to a proceeding. The Court held that an attorney who moves to enforce a charging lien is not a "party" to the underlying litigation. The opinion offered a useful clarification, stating that a former counsel seeking to enforce a lien "is not more a 'party' to a proceeding than a person served with a document subpoena who seeks a protective order."

3. The Role of the Client: Not a "Defendant"

Crucially, section 768.79 allows a "defendant" to propound an "offer of judgment" to a plaintiff that can trigger fee-shifting, while it allows a plaintiff to propound a "demand for judgment." Although the former client was defending against the lien enforcement motion, it had participated in the underlying litigation as a plaintiff. The Sixth District found that the ancillary nature of the proceeding did not change the former client's designation from plaintiff to de facto defendant for purposes of the statute.

Key Takeaways

This opinion offers clarity for parties involved in litigation and non-parties with matters ancillary to such cases, including clients, businesses, and their legal counsel:

• No Fee Penalties for Equitable Claims: If a case primarily seeks non-monetary relief (like lien enforcement, injunctions, or specific performance), the fee-shifting penalty of the Offer of Judgment statute does not apply, regardless of the monetary value of the dispute.
• Lien Protection: Attorneys seeking to enforce an equitable charging lien are largely protected from the risk of paying the former client's legal fees under Florida's offer-of-judgment statute.
• Strict Statutory Adherence: The opinion confirms that for a party to successfully use the statute, all statutory conditions—including the type of lawsuit and the official roles of the parties (Plaintiff or Defendant) in the main case—must be met with strict precision.

For a comprehensive review of the Court's analysis, the full opinion is available here: Opinion 2024-1029.pdf

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