In Florida, the default rule holds that each party to a lawsuit will pay for his or her own attorney’s fees regardless of who prevails in the case. Florida courts will apply the default rule, unless a statute or contract provision provides otherwise. As a result, many contracts contain a clause with an expressed agreement on the awarding of attorney’s fees if litigation arises under the contract. The language usually states that the losing party must pay the prevailing party’s attorney’s fees.
When is Reciprocity Required for Attorney’s fees?
Under Florida statute, a court can enforce an attorney’s fees clause even if the original language of the clause did not provide for attorney’s fee for that specific party. This is called reciprocity. For example, if a clause states “Buyer shall pay for Seller’s attorney’s fees if Seller prevails in a claim against Buyer,” the court can apply statutory law and allow Buyer a right to attorney’s fees upon prevailing in a suit to enforce the contract.
What Statute do Florida Courts Apply to Require Reciprocity of Attorney’s fees?
The purpose behind section 57.105(7) of the Florida Statutes is to provide mutuality of attorney’s fees as a remedy in contract cases. The pertinent language states:
If a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.[1]
How do Florida Courts Interpret the Reciprocity of Attorney’s fees Statute?
According to Florida courts, statutes awarding attorney’s fees must be strictly construed. The statute is designed to even the playing field, not expand it beyond the terms of the agreement. In Inland Dredging Co. v. The Panama City Port Authority, 406 F.Supp.2d 1277 (N.D.Fla.2005), Judge Hinkle explained: “The purpose of the statute is simply to ensure that each party gets what it gives. Under section 57.105(7), plaintiff gets what it gave: the ability to recover fees in litigation arising under these contractual provisions.”
When is the Florida Reciprocity rule for Attorney’s fees Limited?
Florida’s attorney’s fees reciprocity statute will only grant reciprocity, nothing more. Therefore, a provision for attorney’s fees to the prevailing party on an action under a contract is only mutual as to the specific terms of the attorney’s fees provision in the contract.
In Fla. Hurricane Prot. & Awning, Inc. v. Pastina, 43 So. 3d 893 (Fla. 4th DCA 2010), a homeowner entered into a contract with a contractor to install shutters. The contract included the following provision: “Purchaser [i.e., the homeowner,] is responsible for all costs of collection including Attorney’s fees.” The homeowner sued for breach of contract after the contractor refused to mount the shutters and succeeded. The landlord, depending on Florida’s reciprocity statute requested attorney’s fees from the contractor. The trial court agreed with the homeowner and awarded her attorney’s fees. Nevertheless, the appellate court disagreed.
The appellate court found that the contract between the homeowner and the contractor allowed the contractor to recover attorney’s fees only in a “collection” action, not in a general breach of contract action. Because the homeowner brought a suit alleging a breach of contract, the contractual attorney’s fees provision could not apply and therefore, the reciprocity statute was not triggered. Had the contractor brought a collection suit against the homeowner and lost, section 57.105(7) would have permitted the homeowner to recover her attorney’s fees from the contractor. Since this was not the case at hand, the appellate court applied the default rule and the homeowner had to pay for her own attorney’s fees. In justifying the decision, the appellate court stated: “to rule otherwise would be tantamount to re-writing the contract between the parties. This we will not do.”
As the Pastina case above shows, courts can not use Florida’s attorney’s fees reciprocity statute to amend or expand a contract. Proper drafting, as with any other contractual agreement, is essential.
[1] § 57.105(7), Fla. Stat. (2019).
