Supreme Court Clarifies Consumers’ Rights to Attorney’s Fees Pursuant to §57.105(7) Read the two attorney’s fees opinions the Court issued on December 31, 2020

  1. 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.