No Need To Panic—Attorney Fee Provisions In Florida Are Safe
By: Gregg I. Strock, Esq.
Shutts & Bowen
Earlier this Month, in Levy v. Levy, No. SC20-1195, 2021 WL 4614308 (Fla. Oct. 7, 2021), the Supreme Court of Florida issued a ruling that section 57.105(7) of the Florida Statutes did not apply to the attorney’s fee provision in a divorced couple’s property settlement agreement (“PSA”). Section 57.105(7) of the Florida Statutes converts by law a unilateral prevailing party fee provision into a reciprocal fee provision—i.e., if a contract provides that only one party under a contract has the right to attorney’s fees if it wins in court, then both parties to the contract are granted that right regardless of the unilateral language in the contract. As one might imagine, the ruling against attorney’s fees in Levy sent shivers down the spines of transactional and litigation attorneys alike. Is every attorney’s fee provision in every contract and settlement agreement at risk? Fear spread and some publications even recommended that every fee provision going forward must expressly state which party it is in favor of (defendant or plaintiff)—but that simply is not true. Levy is, in reality, a very limited holding, and most fee provisions are safe from its effect.
First, Levy does not radically change contractual fee provisions in Florida. As the Court stated in its decision, section 57.105(7) of the Florida Statutes applies only to unilateral fee provisions. So, if a contract already includes a reciprocal prevailing party fee provision, then section 57.105 does not apply. Therefore, reciprocal attorney’s fee provisions in contracts are not affected by Levy.
Second, and more importantly, the prevailing party in Levy was not denied attorney’s fees because section 57.105(7) did not apply, she was denied because she did not satisfy the requirements of the PSA to prove her entitlement to the fee award. The PSA provided that “the party who is found to be in violation of this Agreement shall pay to the other party who prevails in said action, the prevailing party’s reasonable expenses incurred in the enforcement of this Agreement” (emphasis added). Thus, not only did a party need to prevail to be entitled to its attorney’s fees, it must have proved that the losing party also violated the PSA. With that express contractual limitation in mind, the Court held that even if section 57.105(7) did apply, it only “levels the playing field, but does not expand it.” In other words, even if the statute could be used in Levy, it could not entitle the prevailing party to attorney’s fees that the other party to the contract would not be entitled to if it had prevailed. The statute could not delete the language from the PSA that required a prevailing party to prove that the losing party violated the PSA.
At the end of the day, the parties in Levy got exactly what they bargained for, and the Levy holding should yield the same result for other contracting parties. If a contract provides for reciprocal prevailing party attorney’s fees, then the language of the contract shall control when those fees are awarded (provided the contract and provision are legal). If, on the other hand, the contract provides for unilateral prevailing party attorney’s fees, then section 57.105(7) of the Florida Statutes will operate to make those fees reciprocal, but the language of the contract will still control when those fees are awarded (provided the contract and provision are legal). So, don’t spend the next month staying up late and amending all of your agreements. The only reason Levy might cause you to pause is if you realize you included language in a contract that might limit an entitlement to fees, such as requiring the prevailing party to also prove that the losing party violated the agreement.