DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

NICOLAOS MALLAS,

Appellant,

v.

GEORGE V. MALLAS, JOHN V. MALLAS, and HALADRA, INC.,

Appellees.

No. 4D20-1496

[August 18, 2021]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Jeffrey R. Levenson, Judge; L.T. Case No. CACE15-

017471.

Mattie Hardin Tondreault, Benjamin W. Hardin, Jr., and Julie 

Landrigan Ball of Hardin & Ball, P.A., Lakeland, for appellant.

Steven H. Osber of Conrad & Scherer, LLP, Fort Lauderdale, for 

appellees.

KLINGENSMITH, J.

Appellant Nicolaos Mallas appeals the trial court’s final judgment 

awarding George Mallas and Haladra, Inc. (collectively referred to as 

“appellees”) attorney’s fees and costs under section 772.11, Florida 

Statutes (2019), the civil theft statute, and as a sanction. For the reasons 

stated below, we reverse a portion of the lower court’s final judgment 

awarding attorney’s fees to the appellees for time spent litigating the 

amount of their fee award (“fees for fees”) and affirm on all other issues 

raised without comment.

Appellant filed a seven-count amended complaint that included a claim 

for civil theft for appellees’ alleged failure to pay him his proper share of 

distributions as a shareholder of Haladra. Appellant ultimately filed a 

voluntary dismissal of the case against all parties. After the dismissal, 

appellees filed motions for entitlement to attorney’s fees and costs under 

section 772.11 and as a sanction against appellant for various discovery 

violations. At the conclusion of the hearing on entitlement to fees, the 

court ruled that appellees were entitled to fees under the civil theft statute 
2

because appellant’s civil theft claim had no “substantial fact or legal 

support”; the court also noted that appellees were entitled to their costs as 

well. The court found that all the counts in appellant’s amended complaint 

were inextricably intertwined with the civil theft count set forth in that

pleading and granted the motion for entitlement for “All Defendants . . . as 

prevailing part[ies] and as previously ordered sanctions.”

After determining appellees were entitled to fees and costs, the court 

held an evidentiary hearing to determine the amount to be awarded. 

There, appellees argued that they were entitled to an award of fees for their 

time spent litigating the case on the merits, the entitlement to fees, and 

the amount of fees. In the end, the court awarded appellees $138,362.50 

in attorney’s fees, which included an award of fees for fees under section 

772.11. Appellees were separately awarded $12,000.00 in costs for their

fee expert and other associated costs. This award, which was detailed in 

an order, was later reduced to a final judgment. This appeal followed.

“Generally, a trial court’s ruling on a motion for attorneys’ fees is 

reviewed for abuse of discretion.” Kelly v. Bankunited, FSB, 159 So. 3d 

403, 405 (Fla. 4th DCA 2015). “However, to the extent that a trial court’s 

order on fees is based on its interpretation of the law, the standard of 

review is de novo.” Hahamovitch v. Hahamovitch, 133 So. 3d 1020, 1022 

(Fla. 4th DCA 2014).

“There is a long-standing adherence in Florida law to the ‘American 

Rule’ that attorney fees may be awarded by a court only when authorized 

by statute or agreement of the parties.” TGI Friday’s, Inc. v. Dvorak, 663 

So. 2d 606, 614 (Fla. 1995) (Wells, J., concurring). When attorney’s fees 

are authorized by a statute, that statute must be “strictly construed.” See 

Diamond Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 362, 367 (Fla. 2013).

Section 772.11 states the following:

The defendant is entitled to recover reasonable attorney’s fees 

and court costs in the trial and appellate courts upon a finding 

that the claimant raised a claim that was without substantial 

fact or legal support. In awarding attorney’s fees and costs 

under this section, the court may not consider the ability of 

the opposing party to pay such fees and costs. This section 

does not limit any right to recover attorney’s fees or costs 

provided under any other law.

§ 772.11, Fla. Stat. (2019).
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In State Farm Fire & Cas. Co. v. Palma, 629 So. 2d 830, 833 (Fla. 1993), 

the Florida Supreme Court limited an attorney’s right to receive fees for 

the time they spent litigating the amount of fees awarded. Although the 

Court solely considered whether an award of fees for fees was proper under 

section 627.428, some courts have interpreted Palma as categorically 

disapproving of fees for fees awards. See N. Dade Church of God, Inc. v. JM 

Statewide, Inc., 851 So. 2d 194, 196 (Fla. 3d DCA 2003) (stating that a 

litigant can never receive fees for fees); see also Mediplex Constr. of Fla., 

Inc. v. Schaub, 856 So. 2d 13, 14 (Fla. 4th DCA 2003) (explaining cases 

that have extended the reasoning in Palma to other statutes); Oruga Corp., 

Inc. v. AT&T Wireless of Fla., Inc., 712 So. 2d 1141, 1145 (Fla. 3d DCA 

1998) (citing Palma and declining to award fees for fees under section 

57.105 and section 768.79); Dep’t of Transp., State of Fla. v. Robbins & 

Robbins, Inc., 700 So. 2d 782, 785 (Fla. 5th DCA 1997) (citing Palma and 

declining to award fees for fees under section 73.092).

However, this court has also distinguished Palma in holding that an 

award of fees for fees is permissible in certain contexts. See Schneider v. 

Schneider, 32 So. 3d 151, 158 (Fla. 4th DCA 2010). In Schneider, we held 

that an award of fees for fees was permissible under section 61.16 after 

analyzing the following language in the statute:

The court may from time to time, after considering the 

financial resources of both parties, order a party to pay a 

reasonable amount for attorney’s fees, suit money, and the 

cost to the other party of maintaining or defending any 

proceeding under this chapter.

Id. at 156 (quoting § 61.16(1), Fla. Stat. (2007)). We noted that the express 

language of this statute gave the trial court wide discretion to fashion an 

“award of reasonable and necessary fees.” Id. at 158. This included the 

discretion to award fees for fees. Id.

This court has also held that an award of fees for fees is permissible in 

cases when a contract is broad enough to encompass such an award, see 

Waverly at Las Olas Condo. Ass’n, Inc. v. Waverly Las Olas, LLC, 88 So. 3d 

386, 389 (Fla. 4th DCA 2012), and when the fees are awarded as a sanction 

under the “inequitable conduct doctrine,” see Bennett v. Berges, 50 So. 3d 

1154, 1161 (Fla. 4th DCA 2010); Condren v. Bell, 853 So. 2d 609, 610 (Fla. 

4th DCA 2003). 

Unlike Waverly, here the fee award was not based on a contract. And 

although the trial court also authorized fees as a sanction, the court’s fee 

order does not contain the requisite factual findings to support a “fees for 
4

fees” award under the inequitable conduct doctrine. See Moakley v. 

Smallwood, 826 So. 2d 221, 227 (Fla. 2002); Hicks v. Hicks, 284 So. 3d 

576, 578 (Fla. 4th DCA 2019). Therefore, our review of appellees’

entitlement to fees for fees is limited to the statute.

Appellees contend that section 772.11 authorizes an award of fees for 

fees because it states that it “does not limit any right to recover attorney’s 

fees or costs provided under any other law.” § 772.11, Fla. Stat. (2019)

(emphasis added). However, the right to recover fees for fees is not 

“provided under any other law” that is applicable to this proceeding. See 

id. Nor does it appear that there are any Florida state or federal cases that 

have determined that an award of fees for fees is proper under section

772.11. The above-quoted language in section 772.11 is not as broad as 

the contractual language in Waverly and does not afford the court as much 

discretion as the statutory language in Schnieder. See Waverly, 88 So. 3d 

at 389 (the contractual provision that authorized fees for “any litigation” 

also authorized an award of fees for fees); Schnieder, 32 So. 3d at 158 (the 

discretionary language in section 61.16 authorized an award of fees for 

fees). Therefore, section 772.11 cannot support an award of fees for fees.

Appellees also contend that they may recover fees for fees as a sanction 

for appellant’s discovery violations. However, a closer look at the wording 

of Florida Rule of Civil Procedure 1.380 shows otherwise. Under rule 

1.380(a)(4), fees may be awarded against the party or deponent whose 

conduct necessitated the motion to compel or the party or counsel advising 

that conduct; those fees are limited to “the reasonable expenses incurred 

in obtaining the order that may include attorneys’ fees.” (Emphasis added); 

see also Fla. R. Civ. P. 1.380(b) (authorizing a similar fee award for failure 

to comply with a court order). Under rule 1.380(d), attorney’s fees may 

also be awarded against a party that failed to attend a deposition, but only 

for “the reasonable expenses caused by the failure, which may include 

attorneys’ fees, unless the court finds that the failure was substantially 

justified or that other circumstances make an award of expenses unjust.” 

(Emphasis added). None of these provisions provide sufficient discretion 

to allow for the trial court to award attorney’s fees for time spent litigating 

the amount of attorney’s fees under rule 1.380.

Therefore, we agree with appellant that the trial court erred in awarding 

appellees their fees for fees pursuant to section 772.11. Any extension of 

that statute to provide for the award of those litigation fees should come 

from the legislature, and not this court. See Mediplex Constr., 856 So. 2d 

at 15 (“[I]f section 57.105 should be broadened to include fees for time 

spent litigating the amount of attorney’s fees, then the legislature, and not 

this court, should do so.”).
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We partially affirm the trial court’s final judgment on attorney’s fees

and costs, remanding solely for the trial court to deny appellees’ request 

for attorney’s fees for time spent litigating the attorney’s fees issue—

striking that portion of the award—and recalculate the amount of the 

judgment in accordance with this opinion.

Affirmed in part, reversed in part and remanded.

FORST and ARTAU, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.