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Mutuality of Obligation when it comes to Contractual Attorney’s Fees

Posted by David Adelstein on May 11, 2019
Trial Perspectives

The recovery of attorney’s fees is a creature of contract or statute.  When a party prays for attorney’s fees in a lawsuit, that prayer for relief is based on a contractual basis or a statutory basis to attorney’s fees. 

Sometimes, contracts include one-way prevailing party attorney’s fees.  In other words, the contract may provide that if one party (typically, the drafter of the contract) has to enforce the contract, the other party has to pay that party’s attorney’s fees and costs.  But, what if the other party has to enforce the contract or prevails in the other party’s enforcement action.   Is that attorney’s fees provision reciprocal? The answer is YES based on Florida Statute’s s. 57.105(7) mutuality of obligation requirement.  Section 57.105(7) 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.

“The purpose of section 57.105(7) is simply to ensure that each party gets what it gives.  However, “[t]he statute is designed to even the playing field, not expand it beyond the terms of the agreement.”  CalAlantic Group, Inc. v. Dau, 44 Fla. L. Weekly D1004b (Fla. 5thDCA 2019).   “[I]f a claim is within the scope of an attorney’s fees provision, the party defending against that claim is entitled to attorney’s fees pursuant to section 57.105(7) if the party prevails.”  Id

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

 

 

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