The Distinction of a Unilateral Attorney’s Fees Provision in a PSA & the Right to Recover Levy v. Levy (SC20-1195)

-Summary by Allyson Speer

The Florida Supreme Court recently quashed a Third District holding regarding attorney’s fees in a dissolution of marriage agreement. In Levy, a couple signed a property settlement agreement and support agreement (PSA) that stated if the other party violated the agreement, they would be responsible for reasonable attorney’s fees. The former husband brought suit against the former wife for a supposed violation of the PSA and included a request for attorney’s fees. The former wife also requested attorney’s fees to cover the defense against the motion. Though the magistrate held against the former husband, the magistrate refused to award attorney’s fees to the wife because the magistrate did not believe this type of relief was
included in the PSA provision regarding attorney’s fees. The magistrate reasoned that the attorney’s fees clause only applied to a party in violation of the agreement, not for mere defense costs. The trial court approved the magistrate report. The Third District affirmed on all issues except the issue regarding attorney’s fees, finding that section 57.105(7) requires the fees be
awarded to the former wife since she prevailed.

The Florida Supreme Court tackled this issue by interpreting section 57.105(7), which states the following: “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 court reasoned that the fees involved were not unilateral because the PSA did not exclude either party from the right to fees. Therefore, the parties have equal rights to attorney’s fees. Since the Third District failed to properly analyze the threshold issue, it “improperly expanded the scope of section 57.105(7) to apply to the fee provision in the PSA.” Therefore, the former wife should not be awarded the fees.