Wednesday, September 8, 2010

Divided En Banc Fourth DCA On Reciprocity Of Attorneys' Fees

In Florida Hurricane Protection and Awning, Inc. v. Pastina (4D08-4641), a divided en banc Fourth District issued an opinion of the reciprocal application of section 57.105(7), Florida Statutes (2008).  The majority opinion was written by Judge May who was joined by Chief Judge Gross, Judge Warner, Judge Damoorgian, Judge Gerber and Judge Levine.  Judge Taylor wrote a dissent and was joined by Judge Farmer, Judge Stevenson, Judge Hazouri, and Judge Ciklin.  Judge Farmer wrote a dissent and was joined by Judge Hazouri.  Judge Polen was recused.

The court described the dispute as follows:
The contractor failed to complete the installation, forcing the homeowner to hire a replacement contractor to finish the job. She then filed a complaint against the contractor for breach of contract. She sought damages for the cost to complete the work and consequential damages for replacement of a window and frame damaged during a later hurricane. She also requested attorney’s fees. The homeowner prevailed on her breach of contract claim. She then moved for attorney’s fees. Her motion asserted that she was reciprocally entitled to attorney’s fees based on the fee provision in the contract.  The contractor opposed the request for fees. It argued the fee provision was narrow, was triggered only in a collection action, and was inapplicable to any other type of dispute between the parties. The contractor relied on our opinion in Subway.
The majority concluded:
Simply put, the statute means what it says and says what it means; nothing more, nothing less. Our court and others have consistently read the statute in the same way. Our latest pronouncement can be found in Subway Restaurants, Inc. v. Thomas, 860 So. 2d 462 (Fla. 4th DCA 2003). There, Subway filed a breach of contract suit against its franchisee. The franchisee correspondingly filed suit against Subway for wrongful eviction, violation of civil rights, and breach of contract under the lease and franchise agreement. The franchisee requested attorney’s fees.
The franchisee prevailed. Following an appeal, the franchisee sought attorney’s fees, relying on a provision of the contract that provided for fees for collection “on any part of said rental that may be collected by suit . . . .” Id. at 463. The trial court awarded fees based upon section 57.105(6), Florida Statutes, the predecessor of section 57.105(7). We reversed. Because the franchisee’s claim was for wrongful eviction and breach of contract, it “never triggered Subway’s limited entitlement to attorney’s fees.” Id. at 464.
Similarly, here the contract provided fees for the contractor in the event of a collection action. Section 57.105(7) requires reciprocity. Reciprocity would allow for the homeowner to receive fees if she prevailed in a collection action brought by the contractor. That is mutuality; that is reciprocity. To rule otherwise would be tantamount to re-writing the contract between the parties. This we will not do.


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