A little reported decision with big impact has just come down from the Florida Supreme Court. In Levy v. Levy, No. SC20-1195 (Oct. 7, 2021), the Florida Supreme Court ruled in a marital case that Florida Statute section 57.105(7) was not applicable in a prevailing party attorney’s fee provision. In other words, just because there is a prevailing party attorney’s fee provision in a contract does not mean that the other party that becomes the prevailing party automatically get their attorney’s fees.
In Levy, the former husband filed a motion to compel the former wife to comply with a settlement agreement they had previously entered into. That agreement had a prevailing party attorney’s fee provision. Both sides sought attorney’s fees based on the clause and section 57.105(7), a statute which was thought by operation of law, converts unilateral fee provisions into reciprocal provisions. The trial court ruled against the former husband but the wife was not granted her attorney’s fees as “entitlement to attorney’s fees and costs is only contemplated against the party who is found to be in violation of th[e] Agreement.’” Id. at 3 (citation omitted). The appellate court affirmed on all issues except as to the rejection of the former wife’s request for attorney’s fees.
On appeal to the Florida Supreme Court, Justice J Grosshans, citing a conflict between Levy and another case, Sacket v. Sacket, 115 So. 3d 1069 (Fla. 4th DCA 2013), found that by the plain reading of section 57.105(7), it “only applies to a provision that confers on a party the right to attorney’s fees while not affording a comparable right to the other party.” Levy at 6-7. The court found that the provision in question did not confer a right to fees on one identifiable contracting party to the exclusion of the other party but instead “entitles either party to an award of attorney’s fees upon demonstrating that the other party violated the [contract].” Id. at 7. Thus, both parties had a right to attorney’s fees under the clause and thus, as there was no violation of the contract proven, no attorney’s fees were due to be awarded.
As reported in the Daily Business Review, this ruling is causing some lawyers to worry that the decision will spark a rise in frivolous litigation. This view appears correct as many now need to immediately amend their contracts to adjust to this decision. This ruling requires more contract wordsmithing in what should be a pretty straightforward prevailing party clause. You must now write that the prevailing party is either the offensive or defensive party, as failing to do so, a defensive party, like Ms. Levy, does not get her fees if she wins.
This decision is a siren call for contract redrafts, especially those with prevailing attorney’s fees provisions. If you are interested in receiving a copy of this decision or wish to discuss it further, please feel free to reach out to me at blog@miamimaritimelaw.co, lawofficesofmov@gmail.com or at 305.377.3700.