Samuel Salomon Levy v. Einath Bach Levy ( 2021 )

Supreme Court of Florida
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No. SC20-1195
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SAMUEL SALOMON LEVY,
Petitioner,
vs.
EINATH BACH LEVY,
Respondent.
October 7, 2021
GROSSHANS, J.
We have for review Levy v. Levy, 307 So. 3d 71 (Fla. 3d DCA
2020), which held that section 57.105(7) of the Florida Statutes
applied to the attorney’s fee provision in the parties’ property
settlement agreement. Id. at 73-74. That holding expressly and
directly conflicts with Sacket v. Sacket, 115 So. 3d 1069 (Fla. 4th
DCA 2013)—a decision holding that section 57.105(7) did not apply
to a comparable attorney’s fee provision. Id. at 1070, 1072. We
have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons
explained below, we quash Levy and approve the result in Sacket.
Background
In 2011, a court entered a judgment dissolving the marriage of
Samuel Levy (former husband) and Einath Levy (former wife). Levy,
307 So. 3d at 73. That judgment incorporated two agreements
between the parties—a Consent Custody and Visitation Agreement
and a Property Settlement and Support Agreement (PSA). Id. Each
agreement included an attorney’s fee provision. Id. On the subject
of attorney’s fees, the PSA provides:
13. ENFORCEMENT. In the event that either party
should take legal action against the other by reason of
the other’s failure to abide by this Agreement, the party
who is found to be in violation of this Agreement shall
pay to the other party who prevails in said action, the
prevailing party’s reasonable expenses incurred in the
enforcement of this Agreement, said expenses to include,
but not be limited to, reasonable attorney’s fees . . . .
Id.
Eventually, the former husband filed a motion to compel the
former wife to comply with the PSA. Id. In that motion, the former
husband requested attorney’s fees based on the fee provision in the
PSA. Id. In turn, the former wife requested attorney’s fees for
defending against the motion. Id. She relied on the same attorney’s
fee provision of the PSA as well as section 57.105(7)—a statute
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which converts, by operation of law, unilateral fee provisions into
reciprocal provisions.
The trial court referred the motion to compel to a general
magistrate. Id. After holding a lengthy evidentiary hearing, the
magistrate issued a report and recommendation. Id. In that report,
the magistrate made findings adverse to the former husband’s
claims; and, as a consequence, it recommended that the trial court
deny the motion to compel in its entirety—including the former
husband’s request for attorney’s fees. Id.
Having ruled against the former husband, the magistrate next
considered the former wife’s request for attorney’s fees. Id. Though
acknowledging that the former wife prevailed in defending against
the motion, the magistrate denied her request for fees under the
PSA. The magistrate reasoned: “This type of relief is not
encompassed in Paragraph 13 of the parties’ PSA as entitlement to
attorney’s fees and costs is only contemplated against ‘the party
who is found to be in violation of th[e] Agreement.’ ” Id. 1
1. The general magistrate reserved ruling on whether the
former wife was entitled to attorney’s fees under a statute applicable
to family law matters. See § 61.16, Fla. Stat. (2017).
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Each party filed exceptions to the general magistrate’s report
and recommendation. Id. Overruling the parties’ exceptions, the
trial court approved the report and recommendation. In so doing,
the trial court effectively denied the former wife’s request for
prevailing-party attorney’s fees pursuant to section 57.105(7).
Both parties appealed, challenging various aspects of the trial
court’s rulings. Levy, 307 So. 3d at 73-74. The Third District
affirmed on all issues except as to the rejection of the former wife’s
request for attorney’s fees under section 57.105(7). The district
court reasoned:
Section 57.105(7) amends by statute all contracts
with prevailing party fee provisions to make them
reciprocal. Thus, it also applies to those parties, like the
former wife in this case, who successfully defend against
a breach of contract action. The statute applies if the
contract contains a prevailing party provision, and the
litigant seeking fees is a party to the contract, Azalea
Trace, Inc. v. Matos, 249 So. 3d 699, 702 (Fla. 1st DCA
2018), which is exactly the set of facts before the Court in
this case. Thus, we would not be rewriting the parties’
contract if the former wife is awarded prevailing party
attorneys’ fees because section 57.105(7) amends the
prevailing party attorneys’ fee provision by operation of
law. The award is mandatory, once the lower court
determines a party has prevailed. Landry v. Countrywide
Home Loans, Inc., 731 So. 2d 137 (Fla. 1st DCA 1999)
(discussing section 57.105(2), which later became section
57.105(7)). Furthermore, the trial courts do not have
discretion to decline to award prevailing party fees in a
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case such as this. Lashkajani v. Lashkajani, 911 So. 2d
1154, 1158 (Fla. 2005) (“Trial courts do not have the
discretion to decline to enforce such provisions, even if
the challenging party brings a meritorious claim in good
faith. Such provisions exist to ‘protect and indemnify’
the interests of the parties, not to enrich the party.”)
(internal citations omitted).
Accordingly, section 57.105(7) requires that the
former wife be awarded attorney’s fees for successfully
defending against the former husband’s motion to
compel. Therefore, concluding that the trial court erred
in declining to award the former wife’s motion for
attorney’s fees pursuant to the prevailing party fee
provision as modified by section 57.105(7), we reverse the
order on appeal and remand to the trial court with
directions to determine the reasonable attorneys’ fees
and costs to be awarded to the former wife.
Id. at 74.
The former husband sought discretionary review in this Court,
asserting conflict between Levy and Sacket regarding the
applicability of section 57.105(7) to this type of fee provision. We
granted review and hold that section 57.105(7) does not apply to the
attorney’s fee provision in this case.
Analysis
The issue for our consideration involves statutory
interpretation and is thus subject to de novo review. See Ham v.
Portfolio Recovery Assocs., LLC, 308 So. 3d 942, 946 (Fla. 2020)
(citing Lopez v. Hall, 233 So. 3d 451, 453 (Fla. 2018)).
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In determining the meaning of a statute, we adhere to the
supremacy-of-the-text principle—a principle recognizing that “[t]he
words of a governing text are of paramount concern, and what they
convey, in their context, is what the text means.” Page v. Deutsche
Bank Tr. Co. Americas, 308 So. 3d 953, 958 (Fla. 2020)
(quoting Advisory Op. to Governor re Implementation of Amendment
4, the Voting Restoration Amendment, 288 So. 3d 1070, 1078 (Fla.
2020)). Consequently, we “strive to determine the text’s objective
meaning through ‘the application of [the] text to given facts on the
basis of how a reasonable reader, fully competent in the language,
would have understood the text at the time it was issued.’ ” Id.(alteration in original) (quoting Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 33 (2012)).
The statute at issue in this case is section 57.105(7), which
states: “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.” (Emphasis
added.) By its terms, the statute only applies to a provision that
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confers on a party the right to attorney’s fees while not affording a
comparable right to the other party. Indeed, though addressing a
different issue, we have recently characterized the type of provision
to which the statute applies as a “unilateral” attorney’s fee
provision. Ham, 308 So. 3d at 948-49. Where a unilateral
provision is involved, the statute transforms the one-sided provision
into a reciprocal provision. In this way, the statute fulfills its
purpose, which, we have explained, is “to help level the playing field
when a contract contains a unilateral attorney’s fee provision.” Id.
at 949.
The attorney’s fee provision in this case, however, is not
unilateral. The provision does not confer the right to fees on one
identifiable contracting party to the exclusion of the other party.
Rather, it entitles “either party” to an award of attorney’s fees upon
demonstrating that the other party violated the PSA. Thus, the
provision grants both parties precisely the same contractual right to
attorney’s fees. Put differently, neither party has a greater right to
attorney’s fees than the other; nor is one party favored over the
other. To find that section 57.105(7) applies here would be to
confer a right on the former wife that neither party had under the
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contract, namely the right to fees absent proof of a violation of the
PSA. Section 57.105(7) simply does not go that far: it levels the
playing field, but does not expand it. See Fla Hurricane Prot. &
Awning, Inc. v. Pastina, 43 So. 3d 893, 895 (Fla. 4th DCA 2010).
Inconsistent with this analysis, the Third District held that
section 57.105(7) applied here. However, in reaching that holding,
the court failed to consider the threshold issue of whether the
attorney’s fee provision was unilateral. That error led the court to
improperly expand the scope of section 57.105(7) to apply to the fee
provision in the PSA. 2 In contrast, the Fourth District in Sacket
properly analyzed the relevant fee provision to determine the
applicability of the statute and reached the correct result on that
issue.
2. In support of the Third District’s holding, the former wife
cites Holiday Square Owners Ass’n v. Tsetsenis, 820 So. 2d 450(Fla. 5th DCA 2002), and CalAtlantic Group., Inc. v. Dau, 268 So. 3d
265 (Fla. 5th DCA 2019). Though the rationale in those cases is
unclear, the results reached appear to conflict with our
interpretation of section 57.105(7). Thus, to the extent those cases
are inconsistent with our holding today, we disapprove of them.
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Conclusion
Based on our analysis above, we hold that section 57.105(7)
does not apply to the attorney’s fee provision in the PSA, and the
Third District erred in holding to the contrary. Accordingly, we
quash Levy and approve the result reached in Sacket.
It is so ordered.
CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ, and
COURIEL, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
Application for Review of the Decision of the District Court of Appeal
Constitutional Construction/Direct Conflict of Decisions
Third District – Case Nos. 3D19-73 and 3D19-318
(Miami-Dade County)
Evan L. Abramowitz and Jordan B. Abramowitz of Abramowitz and
Associates, Coral Gables, Florida,
for Petitioner
Robert F. Kohlman of KohlmanLaw, LLLP, Miami, Florida,
for Respondent
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