A Polk County Circuit Court recently held that where an attorneys’ fee entitlement provision in a landlord-tenant lease agreement provided recovery of attorneys fees without a court’s entry of a final judgment or rendition on the Florida eviction matter, the fee provision was ambiguous and unenforceable. See court order below.

ROBERT VOIGHT D/B/A EMERALD RUN APTS. v. ALISHA MCCLAIN. County Court, 10th Judicial Circuit in and for Polk County. Case No. 2011CC-2611. August 29, 2011.

ORDER GRANTING PLAINTIFF’S CLAIM TO DEPOSIT

THIS MATTER came before this Court on Plaintiff’s claim to rent deposit and Defendant’s Motion for Release and Return of Monies Paid Into Registry of the Court and For Award of Attorney Fees and this Court having reviewed the file and the law does hereupon FIND, ORDER AND ADJUDGE:

Landlord, as Plaintiff, filed a Tenant Eviction Complaint on June 8, 2011 based on nonpayment of rent. On or about June 15, 2011, Tenant, through counsel, filed a Motion to Dismiss, and in the Alternative, Affirmative Defenses, Motion to Determine Rent and Demand for Attorney Fees. On June 15, 2011 Tenant deposited the rent alleged to be due into the Registry of the Court. On July 5, 2011 Defendant/Tenant turned over the keys of the rental unit to Plaintiff/Landlord and Plaintiff/Landlord dismissed this action by the filing of a Notice of Voluntary Dismissal.

Based on the filing of the voluntary dismissal this Court cancelled the pretrial conference. Plaintiff made a claim to the deposit on July 5, 2011. On July 28, 2011 Defendant filed its Motion for Release and Return of Monies Paid Into Registry of the Court and for Award of Attorney Fees and noticed the afore-referenced motion for hearing on August 1, 2011 at 2:15 p.m. At the hearing of August 1, 2011 neither Plaintiff, Defendant or Defendant’s attorney appeared. Mr. Daniel Fling, property manager for Plaintiff, appeared, but was not permitted to present argument because he is not an attorney licensed to practice law in Florida. Mr. Fling provided limited testimony upon Court’s inquiry regarding Plaintiff’s claim to the deposit. Defendant asserts, via a detailed motion, an entitlement to attorney fees based on paragraph 15 of the lease agreement and Florida Statute 83.48.

The “Legal Fees” provision of the lease agreement states, in sum, the successful party “may, to the extent legally available, recover reasonable legal fees and costs from the unsuccessful party.” This Court rules Defendant is not entitled to recover attorney fees pursuant to paragraph 15 of the lease for the following reasons, to wit: the “legal fees” provision of the lease is void and unenforceable pursuant to Florida Statute 83.47; the lease language is not a clear and unambiguous mandate to award attorney fees to the “successful” party; and Defendant is not the “successful” party in this action.

The “Legal Fees” provision of the lease is void and unenforceable as being violative of Florida Statute 83.47. As worded, the lease provision expands the basis by which a party can recover attorney’s fees beyond the parameters of Florida Statute 83.48.

Florida Statute 83.47 provides:

83.47 Prohibited provisions in rental agreements

(1) A provision in a rental agreement is void and unenforceable to the extent that it:

(a) Purports to waive or preclude the rights, remedies, or requirements set forth in this part.

(b) Purports to limit or preclude any liability of the landlord to the tenant or of the tenant to the landlord, arising under law.

(2) If such a void and unenforceable provision is included in a rental agreement entered into, extended, or renewed after the effective date of this part and either party suffers actual damages as a result of the inclusion, the aggrieved party may recover those damages sustained after the effective date of this part.

Florida Statute 83.48 provides:

83.48 Attorney’s Fees. — In any civil action brought to enforce the provisions of the rental agreement or this part, the party in whose favor a judgment or decree has been enteredmay recover reasonable court costs, including attorney’s fees, from the nonprevailing party. (emphasis added.)

Clearly, by statute, to recover attorney’s fees in a landlord/tenant matter a party must receive a favorable judgment or decree; thus to recover attorney’s fees the rendition of a judgment or decree is required. The parameters of entitlement and liability of the landlord to tenant and the tenant to landlord as to attorney fees have been duly developed by the Legislature. A lease provision allowing for the recovery of attorney’s fees without need for the rendition of a judgment or decree, in essence, purports to waive the requirement of the rendition of a judgment or decree to recover attorney fees. Accordingly a lease provision which allows for the recovery of attorney’s fees without the rendition of a judgment or decree is void and unenforceable pursuant to Florida Statutes 83.47 as a prohibited provision in a rental agreement. To construe otherwise allows for the recovery of attorney fees by contract when no judgment or decree has been entered, in substance, waiving the unsuccessful party’s right to the remedial limitation fashioned by the legislature as relates to the recovery of attorney’s fees.

Put differently, the statutory requirement of a rendered judgment or decree as a condition precedent to the recovery of attorney’s fees is purported to be substantively waived by the subject lease in violation of Florida Statute 83.47. A contract provision expanding a successful party’s entitlement to recover attorney’s fees as otherwise directed by Florida Statute 83.48 is void and unenforceable by virtue of Florida Statute 83.47.

Secondly, the “Legal Fees” provision simply states a successful party “may” recover attorney fees if “legally available”. As worded, the legal fees provision appears drawn for universal use in various jurisdictions. In Florida attorney’s fees are “legally available” or recoverable, generally only if provided by contract or by statute. Keys Lobster, Inc. v. Ocean Divers, Inc., 468 So2d 360 (3rd DCA 1985) And though at first reading this provision may be perceived as an entitlement provision, the word “may” and the language “to the extent legally available” cannot be ignored. Sans the enforceability issue discussed supra, a properly worded provision entitling a party to recover attorney’s fees could simply state “a successful party shall be entitled to recover attorney fees from the unsuccessful party” or words of similar import. Attorney’s fees are “legally available” if provided by contract or statute. The right to recover attorney’s fees pursuant to a contract provision is limited to the terms of the contract provision and must be clear and unambiguous. Islander Beach Club Condo v. Skylark Sports, L.L.C., 975 So2d 1208 (5th DCA 2008) [33 Fla. L. Weekly D693a]; Sunshine Bowing Co. v. Tropicana Products, Inc., 757 So 2d 1231 (3rd DCA; 2000) [25 Fla. L. Weekly D1010a].

The subject contract language mandates the existence of a legal basis or foundation and does not constitute a contractual directive by itself. This contractual language is more telling of a policy established between the parties and the manner attorney fees will be handled if “legally available” rather than clear and unequivocal language mandating an award of attorney’s fees.

As analyzed, arguably the contract provision says nothing more than the successful party “may, if provided by contract or statute, recover reasonable legal fees and costs from the unsuccessful party.” The subject lease does not clearly and unambiguously provide for the recovery of attorney’s fees.

Finally, even if the language of paragraph 15 of the contract were to be construed as a directive to award attorney’s fees, only the “successful” party is entitled to recover. Given the facts of this case it would be rather credulous of this Court to determine Defendant the “successful” litigant when Plaintiff/Landlord filed a voluntary dismissal simultaneous with Defendant/Tenant vacating the premises. Giving due consideration to the facts of this case this Court determines Defendant is not the “successful” party.

Defendant argues entitlement to attorney’s fees pursuant to Florida statute 83.48. As recited and emphasized above Florida Statute 83.48 requires a favorable judgment or decree.

This action was dismissed before a judgment or decree, or a modicum thereof, confessed or otherwise, was entered. Accordingly, attorney’s fees are not legally available by statute.

Florida Statute 83.60(2) requires a Tenant to pay rent into the registry of the Court “if the tenant interposes any defense other than payment”. Failure to pay rent into the Court registry “constitutes an absolute waiver of the tenant’s defenses other than payment.” Though much is stated in the statute about the deposit of rent into the registry of the Court, little is stated in the statute about the removal of the rent from the registry of the Court. Clearly the purpose of rents being deposited into the registry of the Court is to protect the parties in their respective positions: inter alia; the Landlord is protected by rent deposits in the event of extended litigation; the Tenant is protected in the preservation of rents paid in the event adjustments are necessary upon a rent determination. In landlord/tenant cases, the rent deposit serves much like a bond subject to claims as limited by the purpose of the rent paid. Based on the facts of this case the Landlord is entitled to the rent in the registry of the Court to compensate for a portion of time rent was not paid directly to the Landlord by Tenant. First Hanover v. Vazquez, 848 So.2d 1188 (3rd DCA; 2003) [28 Fla. L. Weekly D1319b]

Conclusion

The rent in the registry of the court shall be disbursed to Emerald Run Apartments in the amount of $575.00 and the Clerk is hereby authorized and directed to so disburse.

Defendant’s Motion for Attorney Fees and Costs is DENIED.

Prior to rendering this decision this Court received Defendant’s Motion for Rehearing or Relief From Order. Defendant’s Motion for Rehearing or Relief From Order is DENIED without prejudice as being premature. In the event Defendant chooses to file a similar motion after having an opportunity to read this Court’s decision, given the circumstances of this case, the Court is inclined to give such motion liberal consideration.