- Each dealt with the reciprocal right of a consumer to attorney’s fees under
Fla. Stat. §57.107(7) in a case that arose “with respect to a contract” providing only
“one-way” attorney’s fees for the institutional party that lost. Page v. Deutsche
Bank Trust Company Americas, So. 3d Fla. Case No. SC19-1137,
December 31, 2020)(a foreclosure case); Ham v. Portfolio Recovery Associates,
LLC, So. 3d (Fla. Case No. SC18-2142, December 31, 2020)(a consumer
debt case). These decisions are very meaningful in the §57.105(7) fees context, but
also in others. Read on.
Fla. Stat. §57.105(7)
This statute is not just another “attorney’s fees statute” but, unlike other
broad, two-way fees statutes, this one is different. It is actually a specific remedial
statute designed to even the playing field between large, often institutional, parties
who have the commercial power to write contracts that only give them attorney’s
fees if they win. One has to wonder how often the “little guy” wins and never even
tries to recover attorney’s fees because of the limited language in the contract (a
secondary benefit to the institutional parties).
Because the ability to recover attorney’s fees is a humongous hammer for a
claimant, and one the institutional parties do not want to share with the “little
guys”, they often attempt to make the provisions of §57.105(7) seem complex and
heavily conditioned, resulting in decisions that cause its reciprocal use to be less
likely. But in each of these year-end cases, Chief Justice Canady took the statute at
face value, read it simply [see next section of this memo], and easily found that the
“little guy” [who HAD prevailed] was entitled to prevailing party attorney’s fees.
In each case, the Court looked at Fla. Stat. §57.105(7) and concluded that the
statute had two (2) and only two requirements to trigger its provisions. The
statute provides:
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.
Taking the text literally and unambiguously, the Court found that it required
two, and only two, things to be present in order for reciprocal fees to be
recoverable by the “little guy”:
(1)The contract has a fees provision allowing fees when the benefitted
party must take “an action” to enforce the contract, and
(2) The other party prevails in the action “with respect to the
contract”.
In Ham, a foreclosure action was brought on the contract, and the
defendant/homeowner, who never denied that there was a contract that she was a
party to, did deny that the plaintiff had standing at the time of the filing of the
complaint. The Court found that the involuntary dismissal for lack of standing was
in a suit “with respect to the contract”, brought to enforce that contract, and the
homeowner had prevailed. Fees awarded.
In Page, a suit on a long-unpaid credit card debt, the institutional plaintiff’s
strategy was to avoid an attorney’s fees risk by suing on an old account stated
cause of action, and not a breach of the credit card agreement, with its one-sided
attorney’s fees provision favoring the creditor. Again, the Court through Chief
Justice Canady would have none of the argument. Recognizing that the prevailing
party only has to show two things to get reciprocal fees, the Court [in a 5-1
opinion, Justice Muniz dissenting and Justice Grosshans not participating] ruled
that an account stated claim is one “with respect to” the underlying contract, and
awarded fees.
What else these decisions might say about our Supreme Court
There might be some of you out there that view these two pro-consumer
opinions as being distinctly not very conservative. My guess is that most lawyers
in Florida anticipated a strong “rightward shift” to the Court with the departure of
Justices Pariente, Quince, Lewis two years ago.
Well, before you shake your head in surprise, we should probably all
redefine what it means to be conservative in these times.
To me, the main over-arching feeling from these two decisions arises from a
somewhat obscure per curiam opinion by the Court in 2020, Advisory Op. to
Governor re Implementation of Amendment 4, the Voting Restoration Amendment,
288 So. 3d 1070, 1078 (Fla. 2020). It was the kind of opinion you might skip over
in reading advance sheets, but for some reason I did not. This opinion is a wealth
of information on how the “new” Court was going to address statutory and related
construction arguments. And the answer was, as repeated in Ham, the “supremacyof-text” principle. It is as though Scalia and Garner are sitting as the 8th and 9th
Justices in Tallahassee.
I have argued that principle and the Advisory Opinion case before in
§57.105(7) cases and I suggest to each of you that you grab that opinion and your
copy of Reading Law: The Interpretation of Legal Texts before you venture into a
Florida Court again on a statutory construction case. And that goes double if you
are fighting for fees for a “little guy” under §57.105(7).
Is the Court a “new” Court? Yes. Is it a “conservative” Court? It may depend
on your definition of “conservative”. You might ask Bryan Garner, the Wordsmith.