Daily Business Review
June 14, 2024
By Lisa Willis
In the latest round of Florida’s sweeping legislative reform, Gov. Ron DeSantis signed another dozen bills into law Thursday, adding to the 122 already on the books this legislative session.
Among the new legislation is a bill regarding the recovery of attorney fees and costs in certain disputes regarding property rights.
Senate Bill 702—Attorney Fees
According to the legislation, “The bill provides that in a civil action brought against the owner of a parcel of real property to resolve a dispute concerning property rights, the court must award reasonable attorney fees and costs to the prevailing defendant if the improvements made to the property by the defendant property owner were made in substantial compliance with, or in reliance on, environmental or regulatory approvals or permits issued by a political subdivision of the state or a state agency.”
This newest Florida law, which takes effect July 1 is authored by Lee County State Sen. Jonathan Allen Martin, who is also an attorney with Aloia, Roland, Lubell & Morgan in Fort Myers.
Martin did not return emails or calls for comment on the bill by press time, but other attorneys are weighing in on the litigation.
Jason Beau Giller, founder and managing partner of Giller P.A., is familiar with the new law and expressed enthusiasm for SB 702′s potential.
He thinks it will streamline the legal process by way of defining the term “property rights” and requiring courts to award reasonable attorney fees and costs to a prevailing defendant in certain civil actions under specified circumstances.
“It’s really a common-sense bill, probably in line with legislation that should be enacted across the country,” Giller said.
His firm specializes in business litigation, insurance coverage and real estate. Giller said he thinks the new law is a great tool because it differs from the traditional rule that each party pays its own fees.
“What I like about the bill, in particular, is that it specifically requires the award,” Giller said. “So once there’s the court determines that there is a prevailing party, it’s not discretionary, the trial court would have to award that,” Giller said.
The litigator said the law has positive attributes on two fronts.
“Number one, it protects, in this instance, the property owner, the developer, or the person holding the rights that were either frustrated or incurred expenses to defend their rights in court; it makes them whole, or at least close to whole,” Giller said. “Secondly, I think it acts as a deterrent against people, whether it’s some recently formed nonprofit or a coalition or a government or any other party, you know, from bringing litigation that probably shouldn’t be brought in the first place.”
The bill passed both the House and Senate unanimously.
“In the current environment, having access to the judicial system and being able to pay for competent counsel is incredibly important,” Giller said. “And I think this bill ensures that the party that’s on the right side of the issue doesn’t come out of the litigation with economic harm.”
Giller said his interpretation of the law is that it acts as a deterrent against the parties and their attorneys for bringing cases that don’t have a high level of a high probability of success.
“It may stymie some of the plaintiff firms-the firms that traditionally bring the claims to stop the development- but I think, in reality, there are other tools under the rules of procedure,” Giller said. “You have the proposal for settlement statute, and there are other mechanisms that can be utilized in litigation, that at some point, a party and their counsel that doesn’t have a meritorious claim, could be exposed for the financial consequences of bringing bad claims.”
Attorney David Hawthorne, a partner with the Miami law firm Pathman Law, said this is brand new.
David Hawthorne
Partner, Pathman Law
“It’s not going to be a revision of an existing statute. And I think it’s important because it’s basically going to be requiring a court to award attorneys fees and costs to a prevailing defendant as long as they complied with whatever governmental agencies they needed to comply with, whether it’s the city, or the county, but if [litigators] got all their ducks in a row when they made their improvements, then they’re going to be entitled to their attorneys fees and costs for their prevailing civil action.”
CS/SB 984 Judgement Liens
This new law authorizes the acquisition of a judgment lien on certain personal property, payment intangibles, and accounts of a judgment debtor located in Florida.
This law specifies that the rights of certain judgment creditors to proceed against a debtor’s property are subject to specific provisions.
Additionally, it prohibits security interests and liens on payment intangibles or accounts and their proceeds from taking priority over payment intangibles or accounts by a judgment lien certificate filed before a designated date.
Giller thinks this is yet another helpful bill in the practice of law.
“As an attorney who is focused on our client’s best interest, you might have the best case in the world, but if the viability of collection is close to zero, or with absolute certainty zero, it may not be worth bringing that claim,” Giller said. “You’d be throwing good money after bad money.”
Giller said the law may be very effective in a down economic cycle.
“One of the things that that statute does is it creates a priority of some liens over others, the attorney said. “And that would be great because that would probably result in less litigation between the various creditors obviously trying to get higher up on the totem pole.”
Hawthorne explains that this law revises an existing statute.
“Originally, the first iteration [of the statute] was back on December 18, 2023, and it wasn’t just limited to payment and tangibles and property in the state, but then that was added, and that’s what the law would be now which is it’s only limited to the state,” Hawthorne said. “The other interesting thing about this revision to the statute is that originally if the judgment lien certificate was not compliant, it was permanently considered void. And now there was language added that you can file a revised one.”