Under Florida law, attorney's fees are awarded to a prevailing party as an element of costs only where provided for by contact or statute or where awarded for services performed in creating or bringing into court a fund or other property. See, e.g., Kittel v. Kittel, 210 So.2d 1 (Fla. 1968). Of these three theories, the only arguable basis for an award of attorney's fees is that the legislature intended to include authorization for attorney's fees in § 674.103(5) and § 674.302. In Florida, however, statutory provisions awarding attorney's fees as costs are considered in derogation of the common law and are strictly construed.

It is an elemental principle of law in this State that attorney's fees may be awarded a prevailing party only under three circumstances, viz: (1) where authorized by contract; (2) where authorized by a constitutional legislative enactment; and (3) where awarded for services performed by an attorney in creating or bringing into the court a fund or other property.Kittel v. Kittel, 210 So.2d 1, 3 (Fla. 1968). See also Allstate Insurance Co. v. Consolidated Systems, Inc., 465 F.2d 710, 716 (5th Cir. 1972); Estate of Hampton v. Fairchild-Florida Construction Co., 341 So.2d 759 (Fla. 1976); Campbell v. Maze, 339 So.2d 202 (Fla. 1976); Rivera v. Deauville Hotel, Employers Service Corp., 277 So.2d 265 (Fla. 1973); Stone v. Jeffres, 208 So.2d 827 (Fla. 1968); DeGarcia v. Seiglie, 230 So.2d 37 (Fla.Dist.Ct.App. — 4th Dist. 1970).

Here, Plaintiff's request for attorneys' fees is immaterial because there is no basis for Plaintiff to recover attorneys' fees under Florida law absent an express provision in the GMAir-ACT Contract or Plaintiff-ACT Contract permitting such fees, and the Complaint does not point to such a provision. See, e.g., Kittel v. Kittel, 210 So. 2d 1, 3 (Fla. 1967) ("It is an elemental principle of law in this State that attorney's fees may be awarded a prevailing party only under three circumstances, viz: (1) where authorized by contract; (2) where authorized by a constitutional legislative enactment; and (3) where awarded for services performed by an attorney in creating or bringing into the court a fund or other property."); D.E. 1. Accordingly, it is

The law of Florida provides: "[i]t is an elemental principle of law in this State that attorney's fees may be awarded a prevailing party only under three circumstances, viz: (1) where authorized by contract; (2) where authorized by a constitutional legislative enactment; and (3) where awarded for services performed by an attorney in creating or bringing into the court a fund or other property." Kittel v. Kittel, 210 So.2d 1, 3 (Fla. 1968). Fees may also be recoverable "[w]here the wrongful act of the defendant has involved the claimant in litigation with others, and has placed the claimant in such relation with others as makes it necessary to incur expenses to protect its interests, such costs and expenses, including reasonable attorney's fees upon appropriate proof, may be recovered as an element of damages."

Under Florida law, attorney's fees may be awarded to a prevailing party in three circumstances: (1) where authorized by contract; (2) where authorized by a constitutional legislative enactment; or (3) where awarded for services performed by an attorney in creating or bringing into court a fund or other property. Kittel v. Kittel, 210 So.2d 1 (Fla. 1967). The Court finds that Plaintiffs claim for attorney's fees does meet the requirements of Florida law referenced above.

We have previously stated that "[i]t is an elemental principle of law in this State that attorney's fees may be awarded a prevailing party only under three circumstances, viz: (1) where authorized by contract; (2) where authorized by a constitutional legislative enactment; and (3) where awarded for services performed by an attorney in creating or bringing into the court a fund or other property." Kittel v. Kittel, 210 So.2d 1, 3 (Fla. 1967). Having reviewed the Florida Statutes and applicable case law, we conclude that the award of attorney's fees incurred in discharging a lis pendens is statutorily authorized.

In addition, this Court in Pepper's Steel Alloys, Inc. v. United States, 850 So.2d 462 (Fla. 2003), reaffirmed the general rule that "[u]nder Florida law, each party generally bears its own attorneys' fees unless a contract or statute provides otherwise." Id. at 465; see also State Farm Fire Cas. Co. v. Palma, 629 So.2d 830, 832 (Fla. 1993) ("This Court has followed the `American Rule' that attorney's fees may be awarded by a court only when authorized by statute or by agreement of the parties."); Florida Patient's Comp. Fund v. Rowe, 472 So.2d 1145, 1148 (Fla. 1985) (recognizing that this Court has adopted "the `American Rule' that attorney fees may be awarded by a court only when authorized by statute or by agreement of the parties"); Kittel v. Kittel, 210 So.2d 1, 3 (Fla. 1967) ("It is an elemental principle of law in this State that attorney's fees may be awarded a prevailing party . . . (1) where authorized by contract; [and] (2) where authorized by a constitutional legislative enactment;. . . ."). Therefore, pursuant to controlling authority, the Prices are only entitled to attorneys' fees if a statute or contract provides for such fees.

Bidon v. Dep't of Prof'l Regulation, 596 So. 2d 450, 452 (Fla. 1992). In addition, this Court in Pepper's Steel Alloys, Inc. v. United States, 850 So. 2d 462 (Fla. 2003), reaffirmed the general rule that "[u]nder Florida law, each party generally bears its own attorneys' fees unless a contract or statute provides otherwise."Id. at 465; see also State Farm Fire Cas. Co. v. Palma, 629 So. 2d 830, 832 (Fla. 1993) ("This Court has followed the `American Rule' that attorney's fees may be awarded by a court only when authorized by statute or by agreement of the parties."); Florida Patient's Comp. Fund v. Rowe, 472 So. 2d 1145, 1148 (Fla. 1985) (recognizing that this Court has adopted "the `American Rule' that attorney fees may be awarded by a court only when authorized by statute or by agreement of the parties");Kittel v. Kittel, 210 So. 2d 1, 3 (Fla. 1967) ("It is an elemental principle of law in this State that attorney's fees may be awarded a prevailing party . . . (1) where authorized by contract; [and] (2) where authorized by a constitutional legislative enactment;. . . ."). Therefore, pursuant to controlling authority, the Prices are only entitled to attorneys' fees if a statute or contract provides for such fees.

The general rule is that attorney's fees may be awarded only when authorized by statute or contract or when an attorney creates or brings into court a fund or other property. Kittel v. Kittel, 210 So.2d 1 (Fla. 1967). In this case, for the award to be valid it would have to be authorized by the Dade County Code.

439 So.2d at 319. See Estate of Hampton v. Fairchild-Florida Const. Co., 341 So.2d 759 (Fla. 1976); Kittel v. Kittel, 210 So.2d 1 (Fla. 1967); Codomo v. Emanuel, 91 So.2d 653 (Fla. 1956). In Leitman, as in this case, the entitlement to fees is predicated solely on a contract provision which was part of a contract that was never formed.