Attorney Fees Prevailing Party Clauses in Florida Contracts

Florida’s Default Rule Is That Each Side Pays Its Own Lawyer

Under Florida’s default rule, each side pays its own attorney fees, even if it wins. Florida follows a general rule that each party pays its own attorneys’ fees, unless a contract or a statute provides otherwise.

That matters in a business dispute. Legal fees can add up quickly, often faster than owners expect. So the question of who pays them can shape how a business responds to a demand letter or a lawsuit.

As the court explained in Price v. Tyler, “[u]nder Florida law, each party generally bears its own attorneys’ fees unless a contract or statute provides otherwise.” The first is a contract, usually a prevailing party clause. The second is a statute or a court sanction for claims that lack support. Whether either one helps you depends on the facts of your dispute.

This page covers both paths. It explains what a fee clause does, how the language matters, who counts as the prevailing party, which statutes shift fees, and the mistakes that can cost a business its fee claim.

How a Prevailing Party Fee Clause Works

A prevailing party clause lets the winner of a contract fight recover its reasonable attorney fees from the other side. The parties write this term into the agreement before any dispute starts. It is a promise about who pays if a fight happens.

The clause usually names attorney fees and sometimes costs. It can apply to a lawsuit, an arbitration, or both, depending on its wording. Some clauses also cover fees for enforcing the contract.

Clauses come in two basic forms. A mutual clause lets either side recover fees if it wins. A one-sided clause favors only one party, often the drafter. Business owners often sign standard forms without reading this term. Later, that term shapes every choice about settling, litigating, or dropping a claim.

Read the Fee Language Word by Word

The exact wording of your fee clause decides what it covers, so read it closely. Look for phrases like “prevailing party,” “reasonable attorneys’ fees,” “costs and expenses,” “including appeals,” and “enforcing this agreement.” Each phrase can change the result.

Ask whether the clause reaches pre-suit demand work, arbitration, appeals, and collection after a judgment. If the clause only mentions a lawsuit, a fee claim in arbitration may be harder to make.

A fee term can also fail if a court finds it unenforceable. The Florida Supreme Court held in Basulto v. Hialeah Automotive that a court must find both procedural unconscionability (an unfair way the deal was made) and substantive unconscionability (unfair terms). In Basulto v. Hialeah Automotive, the court stated: “we conclude that both the procedural and substantive aspects of unconscionability must be present, although not necessarily to the same degree, and both should be evaluated interdependently rather than as independent elements.”

If the agreement sends disputes to arbitration, Fla. Stat. § 682.02 makes a written arbitration agreement valid and enforceable. The exception is a ground that exists to revoke a contract. Courts decide whether an arbitration agreement exists.

Who Counts as the Prevailing Party

A party can win its main claim and still lose a counterclaim. Losing some points does not always mean losing the case.

The amount you ask for and the amount you recover can differ. That gap can matter when the court decides the fee claim. Keep your goals and the relief you request in mind from the start. Your pleadings should also state the fee claim clearly, so the court sees it.

Fee Shifting Beyond the Contract Through Statutes and Sanctions

Some Florida laws can shift fees even when the contract says nothing about them. Other rules can make a one-sided clause work in both directions.

The support can be missing from the material facts or from existing law.

A sanctions motion has a built-in waiting period. Under § 57.105(4), the motion must be served but cannot be filed unless the challenged paper is not withdrawn or corrected within 21 days.

Section 57.105(7) reaches the one-sided clause. If a contract lets one party recover fees for enforcing it, the court may also award reasonable fees to the other party when that party prevails. This applies to contracts entered on or after October 1, 1988.

In civil damages cases, § 768.79 lets a defendant recover fees and costs incurred from the date of its offer if the plaintiff does not accept the offer within 30 days and the judgment is one of no liability or at least 25 percent less than the offer. A plaintiff’s demand can work the same way when the judgment is at least 25 percent greater.

Attorney Fees Are Not the Same as Costs

Attorney fees pay for your lawyer’s time. Costs are the expenses of the case. The contract wording decides whether out-of-pocket expenses are covered. If the clause says “costs and expenses,” expenses may be claimable. If it says only “attorney fees,” they may not be.

Courts need proof before they award fees. Florida presumes that a lodestar fee, meaning hours multiplied by a reasonable rate, is sufficient and reasonable. Under § 57.104(2), that presumption can be overcome only in a rare and exceptional circumstance, with evidence that competent counsel could not otherwise be retained.

Time spent by legal assistants working under an attorney’s supervision can also count. § 57.104(1) covers that support when it is nonclerical and meaningful.

In some consumer-protection cases under § 501.2105, the prevailing party’s lawyer files a sworn affidavit of the time actually spent. Keep detailed, dated time records and an itemized cost ledger from day one.

Common Mistakes That Can Cost You Fee Recovery

Missed deadlines can cost a fee claim. Under § 768.79, the offering party must move for fees within 30 days after judgment or dismissal. Calendar that date early.

Settlements need careful reading. A release may cover fee claims, and a settlement may leave the fee question open. Read the release language before you sign.

Some claims overlap with the contract. Under Williams v. Johnson, when an express contract covers the same subject matter, claims arising from that relationship will not support an unjust enrichment claim. Plead within the contract’s terms.

Arbitration has its own rules. The American Arbitration Association publishes construction arbitration procedures and rules, and it offers recommended construction-contract clause language. Check whether your agreement and the applicable rules allow fee awards.

Remember that a one-sided clause can cut both ways. Under § 57.105(7), the party that lacked the fee right may still recover fees if it prevails.

Bring Your Contract to Ayala Law PA for Review

Ayala Law PA focuses on business litigation, commercial litigation, contract disputes, shareholder disputes, construction litigation, real estate litigation, and international trade litigation in Florida courts and arbitration. Eduardo A. Maura is the responsible attorney for this page. The firm’s office is in Tampa, and it represents businesses in Tampa, Hillsborough County, and the Tampa Bay area.

If a fee clause is in a contract you signed and a dispute has started, you don’t have to sort out the fee question alone. Reach out to our team through the contact page, or call (305) 570-2208, to talk through how the clause applies to your agreement.