Attorney Fees in Civil Asset Forfeiture Cases

The issue of attorney fees comes up in civil asset forfeiture cases for several reasons:

• the government might seize money paid to an attorney;
• if your money was seized, your attorney might agree to accept your case on a contingency fee basis which means you only pay attorney fees if you win the case; or
• the government or seizing agency might have to pay your attorney fees if you win your case at the adversarial preliminary hearing stage, during a motion for summary judgment, or after trial.

This article discusses issues in civil asset forfeiture cases related to attorney fees and costs.

Attorney Fees for Forfeiture Cases in Florida

The civil asset forfeiture attorneys at Sammis Law Firm in Tampa, FL, can help you file the appropriate response.

In forfeiture cases under state law, if a state agency seized the property, we can help you request an adversarial preliminary hearing immediately after the seizure takes place.

During the adversarial preliminary hearing, the law enforcement agency must establish probable cause that the vehicle “was used in violation of the [Act].” § 932.701(2)(f).

In forfeiture cases under federal law, we can help you file a claim for court action. We often file that demand or claim on the same day we are retained.

The claim for court action triggers a 90 day deadline for an Assistant United States Attorney (AUSA) to file a complaint for forfeiture.

If you do not prevail in the earliest stages of the case, we can help you file an answer to the complaint for forfeiture, complete the discovery process, and prepare for trial.

If you prevail, we can help you file and litigate a motion for damages, costs, and attorney’s fees if you win the action due to a motion summary judgment, voluntary dismissal, or after a trial in the forfeiture proceeding.

Call (813) 250-0500 to discuss your case.

Summary of Attorney Fees in Florida’s Forfeiture Cases

Florida’s statute on forfeiture proceedings provides:

• Unless otherwise expressly agreed to in writing by the parties, the $1,500 bond is payable to the claimant if the claimant prevails. See Section 932.704(4).
• If the claimant prevails and there is no agency appeal, the agency may not assess towing charges, storage fees, administrative costs, or maintenance costs. See Section 932.704(9)(a)
• If the claimant prevails, the agency must pay any loss of income directly attributed to the continued seizure of income-producing property. See Section 932.704(9)(b).
• If the claimant prevails at trial or on appeal, the agency must pay the claimant any reasonable loss of value of the seized property retained during the trial or appeal. See Section 932.704(9)(b).
• If the claimant prevails at the close of forfeiture proceedings and the court finds that the agency has not proceeded in good faith or the agency’s actions precipitating the forfeiture constituted a gross abuse of agency discretion, the court can award reasonable trial attorney’s fees and costs. See Section 932.704(10)
• If the claimant prevails after an adversarial preliminary hearing (APH), the court shall award reasonable attorney’s fees and costs up to $2,000. See Section 932.704(10).

Motion for Attorney Fees in a Civil Asset Forfeiture Case

Depending on how the case is resolved, Florida law provides the property owner being awarded attorney fees and costs when a showing of bad faith can be made under the following statutes:

• Section 932.704(10)
• Section 57.105

The motion for attorney fees or costs in a civil forfeiture case alleges that the law enforcement agency that took the property engaged in a lack of good faith that would support a fee or costs award under Section 932.704(10) and Section 57.105.

Under those statutes, the property owner can seek attorney fees and costs incurred in defending the action.

Costs can include the devaluation of the property. The claim looks at the number of months the agency retained the property with an interest rate of 0.75% compounded monthly against the total amount of U.S. currency seized to determine the total amount of damages.

The attorney can also request other costs incurred to defend this action, including copy costs, service of process expenses, and any court reporter fees. To preserve the claim for attorney fees or costs, it is best to repeat the request for attorney fees and costs during each stage of the case.

Section 932.704(10) No Good Faith or Abuse of Discretion

Section 932.704(10) provides:

(10) The court shall award reasonable attorney’s fees and costs, up to a limit of $2,000, to the claimant at the close of the adversarial preliminary hearing if the court makes a finding of no probable cause.

When the claimant prevails, at the close of forfeiture proceedings and any appeal, the court shall award reasonable trial attorney’s fees and costs to the claimant if the court finds that the seizing agency has not proceeded at any stage of the proceedings in good faith or that the seizing agency’s action which precipitated the forfeiture proceedings was a gross abuse of the agency’s discretion.

The court may order the seizing agency to pay the awarded attorney’s fees and costs from the appropriate contraband forfeiture trust fund. Nothing in this subsection precludes any party from electing to seek attorney’s fees and costs under chapter 57 or other applicable law.

§ 932.704(10), Fla. Stat. (2016).

A probable cause determination following a first-stage adversarial preliminary hearing does not preclude an attorney’s fee award following a second-stage summary judgment or trial determination.

In Cobb v. Langworthy, 909 So.2d 416, 417 (Fla. 5th DCA 2005), the court affirmed an award of attorney’s fees to a successful property owner following a stage two judgment which necessarily was preceded by a stage one finding of probable cause.

In In re Forfeiture of: 1997 Jeep Cherokee, 898 So.2d 223, 224–25 (Fla. 2d DCA 2005), the court addressed a claim for attorney’s fees under section 932.704(10) following a stage one probable cause determination and an agency dismissal during stage two proceedings.

In

the court denied the Claimants request for attorney’s fees pursuant to Section 932.704(10), Florida Statutes (2022), since it granted the Claimant’s Motion to Dismiss, it did not proceed to determine the issue of probable cause and, therefore, did not make a finding of no probable cause. Without a finding of no probable cause, the statutory basis for an award of attorney’s fees contained in the first sentence of subsection (10) does not apply. The court also determined that the agency did not act in bad faith or with a gross abuse of the agency’s discretion. The court noted the Claimaint could raise any other basis for attorney’s fees and costs under chapter 57 or other applicable law.”

Attorney Fees and Costs Under Section 57.105

Section 932.704(10), provides in part:

Nothing in this subsection precludes any party from electing to seek attorney’s fees and costs under chapter 57 or other applicable law.

In turn, Section 57.105(1), provides:

(1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:

(a) Was not supported by the material facts necessary to establish the claim or defense; or

(b) Would not be supported by the application of then-existing law to those material facts.

§ 57.105(1), Fla. Stat.

In Smith v. Gore, 933 So.2d 567, 568 (Fla. 1st DCA 2006), the court “again remind the bar that section 57.105 expressly states courts ‘shall’ assess attorney’s fees for bringing, or failing to timely dismiss, baseless claims, or defenses.”

The word “shall” in section 57.105 shows “the legislative intent to impose a mandatory penalty in the form of reasonable attorney’s fees to discourage baseless claims, by placing a price tag on losing parties who engage in these activities.”

In Albritton v. Ferrera, 913 So.2d 5, 10 (Fla. 1st DCA 2005), the court found that “once a party learns its claim or defense is not supported by the facts or law, it must drop the claim or defense, or risk imposition of section 57.105 attorney’s fees on the non-meritorious claim or defense.”

The court in In re Forfeiture of 1997 Jeep Cherokee, 898 So.2d at 224, awarded 57.105 fees notwithstanding “[a]t the preliminary hearing, the trial court found that probable cause did exist for the continued possession of the vehicle.”

“Section 57.105 does not require a finding of frivolousness to justify sanctions, but only a finding that the claim lacked a basis in material fact or then existing law.” Martin Cnty. Conservation Alliance v. Martin Cnty., 73 So.3d 856, 858 (Fla. 1st DCA 2011).

In Long v. AvMed, Inc., 14 So.3d 1264, 1265 (Fla. 1st DCA 2009), the court found that “[f]ees are appropriate under section 57.105(1) when the party or the parties’ attorney pursued a claim or defense that is without factual or legal merit.”

Section 57.105 “does not require a party seeking fees to show the complete absence of a justiciable issue of fact or law, but permits fees to be recovered for any claim or defense that is insufficiently supported.” Id. at 1265.

Attorneys Fees and Costs under Section 57.041

Requiring an award of claim storage fees is consistent with the characterization of forfeiture proceedings as civil in nature and with section 57.041, Florida Statutes, providing for the award of legal costs and charges to the prevailing party. One 1978 Green Datsun Pickup Truck, VIN HL620262180, Tag No. WPN-271 v. State ex rel. Manatee County for Use and Benefit of Manatee County Sheriff’s Dept., 457 So. 2d 1060 (Fla. 2d DCA 1984).

Florida Statute Section 57.041 for recovering costs from the losing party provides:

The Right to Claim Storage Fees in a Vehicle Forfeiture Action

A vehicle owner who successfully defends a forfeiture proceeding has a right to claim storage fees, and the government must properly seize and store an automobile or, upon improper seizure, pay storage costs incurred. One 1978 Green Datsun Pickup Truck, VIN HL620262180, Tag No. WPN-271 v. State ex rel. Manatee County for Use and Benefit of Manatee County Sheriff’s Dept., 457 So. 2d 1060 (Fla. 2d DCA 1984).

In other words, an award of damages for the agency’s seizure and improper storage of his vehicle was mandatory under section 932.704(9)(b).

Section 932.704(9)(b) provides—in pertinent part—that a “trial court shall require the seizing agency to pay the claimant the reasonable loss of value of the seized property when the claimant prevails at trial or on appeal, and the seizing agency retained the seized property during the trial or appellate process.”

Section 932.704(3) refers to storage fees in forfeiture proceedings in the context of costs.

This article was last updated on Monday, April 24, 2023.