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The post below was published on Thursday, September 9th, 2010 at 8:49 AM.

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Fourth District: Fees, and “Blog” Arrives In The Case Law

This new decision from the Fourth District is interesting on many levels.

Subsection (7) of this Florida law turns contractual provisions allowing only one side attorney’s fees into bilateral provisions that allow both sides fees. Simple enough, but look what comes of it in a new case that includes Judge Farmer’s latest linguistic quips.

Assume a contract allows one side attorney’s fees in a particular class of dispute, and assume that sort of dispute will arise only when the party who drafted the contract sues the other party. Does the statute convert the one-sided fee right into a dual right to fees in any breach of contract action or merely a dual right in any breach action involving the particular class of disputes identified in the provision?

That was the issue in the new Fourth District decision. The court heard the case en banc, and the judges’ differing views resulted in three interesting opinions.

The actual provision at issue was found in a contract between a homeowner and a contractor and referenced only collection actions. A six-judge majority held that the statute converted the contractor’s right to fees in collection actions into a bilateral right to fees, but only in collection actions, not in a homeowner’s action for incomplete or inadequate construction work. So, if the contractor brings a collection action, whoever wins can be awarded fees under the contract. If the homeowner brings a workmanship claim, no one can be awarded fees under the contract.

Five judges dissented through two opinions. Judge Taylor authored the first, and the other four dissenters concurred. She focused on the phrase “any action” in subsection (7). She asserted that the statute allows a party to recover fees in “any action” where the contract allows the other party to recover fees in “any action.” Thus, a contract allowing one side to recover fees in one type of action should be construed to allow the other party fees in another type of action.

Judge Farmer authored the second dissent, and Judge Hazouri concurred. At only six pages in length, this dissent packs 15 footnotes (some merely Bryan Garner-style citation drops) and includes grammatical lessons (“Grammarians recognize three essential types of English sentences…”), views on how we now live in “a prevailing party attorneys fees word . . . whether Judges like it or not,” musings on how the modern legislative process (with the “dominance and pervasiveness of the one-minute news cycle of media-webs-blogs”) can produce no recognizable legislative intent, a hint of how the homeowner might seek further review, and a critique that the majority opinion amounts to judicial legislation.

That last part, the critique, is rather sharp. Judge Farmer says of the majority opinion:

Theirs is not strict construction. Theirs is not strict interpretation. Strictly speaking, theirs is nothing less than judicial legislation. The words of their holding should begin thus: Be it enacted by the Fourth District Court of Appeal, for their form of reformation actually enacts an entirely new and different statute for this district.

Strong language, to be sure.

Did anyone notice the blog reference mentioned above? While the word was used in the compound “media-webs-blogs,” making the occasion a little less remarkable, Judge Farmer’s blog reference still marks the first time the word has appeared in Florida’s case law.

Back to the substance of the case, I believe I follow both sides’ reasoning, but the dissents left me with an unanswered question. If the homeowner should be entitled to fees for prevailing in a workmanship action, would the contractor have been entitled to fees had it prevailed in that same action, based on the contractual provision allowing fees in collection actions, or does the statute give the homeowner a far broader fee right than the contract gives the contractor?

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