Under Florida Law, A Contractual Attorney's Fee Provision Must be Strictly Construed

To be enforceable under Florida law, an agreement providing for the award of attorney’s fees must be clear and specific.  Civix Sunrise, GC, LLC v. Sunrise Road Maintenance Ass’n, Inc., 997 So.2d 433, 435 (Fla. 2d DCA 2008).  Moreover, a “contractual attorney’s fee provision must be strictly construed.”  B& H Constr. & Supply Co. v. District Bd. of Trustees of Tallahassee Cmty. Coll., Fla., 542 So.2d 382, 387 (Fla. 1st DCA 1989).  Strict construction means that “the parties must manifest in some clear way an agreement to indemnify the other for attorney’s fees for a specific matter.”  Succar v. Safra Nat'l Bank of New York, 237 F. App’x 526, 528 (11th Cir. 2007) (citing Sholkoff v. Boca Raton Community Hosp., 693 So.2d 1114 (Fla. 4th DCA 1997)).

Strictly construed, some contractual attorney’s fees provisions may be neither clear nor specific with respect to the recovery of attorney’s fees.   For example, the attorney’s fee provision at issue may not state:

  • whether the defendant is responsible for its own fees or for those of the plaintiff. 

  • what circumstances would trigger it, including whether one party must actually prevail in a lawsuit in order to recover the attorney’s fees from the non-prevailing party.

In short, if the contractual attorney’s fee provision at issue does not specifically spell out who is responsible for attorney’s fees and when the fees may be recovered, the attorney’s fee provision may be unenforceable. See Succar, 237 F. App’x at 528 (fee provision must manifest a clear intent that a non-prevailing party in litigation will be required to pay the attorney’s fees of the prevailing party.)

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