The prevailing party for the purpose of a contractual attorney’s fee provision is the party that prevails on the significant issues in the litigation. See Moritz v. Hoyt Enters., Inc., 604 So.2d 807, 810 (Fla. 1992); Zhang v. D.B.R. Asset Management, Inc., 878 So.2d 386, 387 (Fla. 3d DCA 2004). The test for determining if a party is “prevailing” is whether it was successful on “any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit” Moritz, 604 So.2d at 809-10, citing to Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933 (1983); Payne v. Cudjoe Gardens Property Owners Ass’n, Inc., 875 So.2d 669, 671 (Fla. 3d DCA 2004)(stating same rule).
The trial judge determines who is the prevailing party, based on a determination from the record as to which party has, in fact, prevailed on the significant issues tried before the court. See Moritz, 604 So.2d at 807. See also Payne, 875 So.2d at 671 (“…the fairest test for a determination of the prevailing party is to allow the trial judge to determine from the record which party in fact prevailed on the significant issues tried before the court”).
Focus on Results
In making its determination as to which party prevailed, the trial court should focus on the “result obtained”. See Zhang, 878 So.2d at 387. As such it is result, not procedure, which governs the determination of who is a prevailing party. See Smith v. Adler, 596 So.2d 696, 697 (Fla. 4th DCA 1992)(appellants were prevailing party where they “secured most of the relief originally requested in the suit”).
Prevailing Party: Who Recovers Legal Fees
As such, just because a party may have obtained some economic benefit as a result of the litigation does not necessarily mean that it is a prevailing party. See Boxer Max Corp. v. Cane A. Sucre, Inc., 905 So.2d 916, 918 (Fla. 3d DCA 2005); Zhang, 878 So.2d at 387 (“Simply because a party has obtained some economic benefit as a result of litigation, does not necessarily mean that party has succeeded on the major issue in the case”).
Additionally, because a trial court may properly find that neither party has prevailed in a contract action, under compelling circumstances it is possible that there will be no attorney fee award in litigation involving a contractual provision for prevailing party’s attorney’s fees. See Zhang, 878 So.2d at 387. For instance, there is no prevailing party when a settlement occurs. See Boxer Max Corp., 905 So.2d at 918. However, where there is a functional equivalent of a judgment, the fact that a final judgment was not entered is not controlling in the determination of a prevailing party. See Adler, 596 So.2d at 697.
Finally, there appears to be a slight variance in the cases to the extent they discuss “significant issues” versus the “major issue”. Compare, e.g., Moritz, 604 So.2d at 807 (discussing “significant issues”) with Zhang, 878 So.2d at 387 (discussing whether a party succeeded on the “major issue” in the case). To the extent that “significant” and “major” may be ascribed different meanings, and because one phrase is plural while the other is singular, this variance in language may eventually be of crucial importance in the determination of whether a party is the prevailing party for the purpose of an attorney’s fee statute.