Eugene Ham III v. Portfolio Recovery Associates, LLC & SC18-2143 Laura Foxhall v. Portfolio Recovery Associates, LLC

          Supreme Court of Florida
____________

No. SC18-2142
____________

EUGENE HAM III,
Petitioner,

vs.

PORTFOLIO RECOVERY ASSOCIATES, LLC,
Respondent.

____________

No. SC18-2143
____________

LAURA FOXHALL,
Petitioner,

vs.

PORTFOLIO RECOVERY ASSOCIATES, LLC,
Respondent.

December 31, 2020

CANADY, C.J.

In thes

          Supreme Court of Florida
                                   ____________

                                  No. SC18-2142
                                  ____________

                               EUGENE HAM III,
                                  Petitioner,

                                         vs.

               PORTFOLIO RECOVERY ASSOCIATES, LLC,
                            Respondent.

                                   ____________

                                  No. SC18-2143
                                  ____________

                               LAURA FOXHALL,
                                  Petitioner,

                                         vs.

               PORTFOLIO RECOVERY ASSOCIATES, LLC,
                            Respondent.

                                December 31, 2020

CANADY, C.J.

      In these consolidated cases, we consider whether a unilateral attorney’s fee

provision in a credit card contract is made reciprocal to a debtor under section

57.105(7), Florida Statutes (2015), when the debtor prevails in an account stated
action brought to collect unpaid credit card debt. We have for review the decision

of the First District Court of Appeal in Ham v. Portfolio Recovery Associates, LLC,

260 So. 3d 450 (Fla. 1st DCA 2018), which certified conflict with the decision of

the Second District Court of Appeal in Bushnell v. Portfolio Recovery Associates,

LLC, 255 So. 3d 473 (Fla. 2d DCA 2018). We have jurisdiction. See art. V,

§ 3(b)(4), Fla. Const.

      In Ham, the First District ruled that section 57.105(7) was inapplicable

because the actions for account stated did not rely on the credit card contracts

containing the fee provisions. Ham, 260 So. 3d at 455. Accordingly, the district

court held that the debtors could not recover attorney’s fees. Id. In contrast, the

Second District in Bushnell held that the debtor was entitled to attorney’s fees

under section 57.105(7), reasoning that the account stated claim and the underlying

credit card contract were inextricably intertwined. See Bushnell, 255 So. 3d at

477-78.

      Based on our analysis of the text of the statute, we conclude that section

57.105(7) allows the debtors to recover reciprocal attorney’s fees. Under section

57.105(7)’s rule of reciprocity, if a contract provides for attorney’s fees for a party

when that party “is required to take any action to enforce the contract,” then

attorney’s fees are authorized for the other party if “that party prevails in any

action . . . with respect to the contract.” Here, the fees were authorized for the


                                         -2-
debtors because both conditions required by the statute were met. We approve the

result in Bushnell and quash Ham.

                                 BACKGROUND

       After purchasing certain consumer debts from GE Capital Retail Bank (the

Bank), Portfolio—as assignee of the Bank—filed separate actions against Eugene

Ham III and Laura Foxhall (the debtors) in Escambia County Court. Ham, 260 So.

3d at 452. “In each case, Portfolio filed a one-count complaint for common law

account stated to collect the balance allegedly owed on a credit card account

originating with the Bank.” Id. Portfolio claimed “that each debtor had a

revolving credit card account with the Bank,” and “used the account to make

purchases [or] cash advances resulting in an unpaid balance.” Id. Portfolio further

alleged that “the Bank provided monthly credit card account statements to [each]

debtor for the amounts due,” and neither debtor “object[ed] to the account

statement[s].” Id. Portfolio sought to recover $819.74 from Ham and $3,934.69

from Foxhall. Id. at 452 n.1. “Portfolio did not reference or attach the credit

contracts to the complaints, but instead attached monthly billing statements.” Id. at

455.

       The debtors filed answers denying the substantive allegations in the

complaints and raising affirmative defenses. Id. at 452. The debtors also

requested attorney’s fees based on the underlying credit card contracts, which


                                        -3-
authorized the Bank to recover costs and fees if required to hire an attorney to

collect the account, and section 57.105(7), which makes provision for reciprocal

prevailing party fees in certain circumstances if there is a unilateral contractual

attorney’s fee clause. Id. The attorney’s fee provisions in the credit card contracts

with both debtors provided for the recovery by the creditor of “collection costs,”

“including court costs and reasonable attorney’s fees” if the creditor used the

services of an attorney who was not the creditor’s salaried employee for

“collect[ing]” the debtor’s account.

      Both cases proceeded to trial, at which the county court determined “that

Portfolio failed to offer any admissible evidence to support the complaints.” Id.

Accordingly, “the court entered final judgments in favor of the debtors and

reserved jurisdiction to address attorney’s fees and costs.” Id.

      The debtors next filed motions for attorney’s fees, again claiming that the

unilateral fee provisions in the credit card contracts were made reciprocal to them

under section 57.105(7). Id. Portfolio opposed the motion for fees, arguing in part

that because the complaints were based on account stated rather than breach of

contract, the contractual fee provisions were not applicable. Id. at 452-53. The

court found in favor of the debtors. Id. at 453. After the court entered its orders

granting attorney’s fees and costs to the debtors, however, “Portfolio moved for a

new trial with respect to the debtors’ entitlement to attorney’s fees based on an


                                         -4-
intervening appellate decision from the” First Judicial Circuit Court for Escambia

County: Portfolio Recovery Associates, LLC v. Grunewald, No.

172016AP000024XXXXXX (Fla. 1st Cir. Ct. Apr. 21, 2017). Ham, 260 So. 3d at

453. There, the First Circuit concluded “that section 57.105(7) does not apply in a

case in which a creditor proceeds under an account stated cause of action

independent of any written credit card agreement the creditor has with a debtor.”

Id. (citing Grunewald, No. 172016AP000024XXXXXX, at *3-*4). Recognizing

Grunewald as binding precedent, the county court granted Portfolio’s motions and

reversed its prior judgments. Id.

      On appeal, the First District consolidated the cases and affirmed. Id. at 452.

The district court acknowledged that Portfolio chose to file an account stated

claim, which “is based on ‘the agreement of the parties to pay the amount due upon

the accounting, and not any written instrument.’ ” Id. at 454 (quoting Farley v.

Chase Bank, U.S.A., 37 So. 3d 936, 937 (Fla. 4th DCA 2010)). Therefore,

“[b]ecause the action framed by Portfolio in these cases did not rely on the credit

contracts containing the unilateral fee provision,” the First District “conclude[d]

that the debtors [were] not entitled to reciprocal fees under section 57.105(7) by

virtue of those contracts.” Id. at 455.

      In support of this conclusion, the First District observed that a contrary

conclusion “would undermine Portfolio’s ability to choose its cause of action.” Id.


                                          -5-
The court stated that Portfolio’s choice of an account stated cause of action meant

that “had Portfolio prevailed at the trial level, it would not have been entitled to

fees under the credit contracts either.” Id.

      The court further explained that it had “not overlooked the debtors’

argument that” Portfolio’s claims were actions “with respect to the contract”—as

required under section 57.105(7)—because “the credit contracts [were]

inextricably intertwined with the account stated claims.” Id. The First District

noted that the debtors primarily relied on Caufield v. Cantele, 837 So. 2d 371 (Fla.

2002), in support of their argument. Ham, 260 So. 3d at 455. There, this Court

held that the prevailing party in a fraudulent misrepresentation suit was entitled to

attorney’s fees under a contractual provision awarding fees to the party that

succeeded in any litigation “arising out of” the contract. Caufield, 837 So. 2d at

379. The Court concluded that the “misrepresentation would not have occurred” if

not for the contract; thus, the two were “inextricably intertwined such that the tort”

claim arose out of the contract. Id.

      But the First District distinguished Caufield. Ham, 260 So. 3d at 455. The

district court explained that “[t]he tort claim in Caufield required proving the

existence and the breach of the contract,” while “[a]n account stated claim . . .

requires no evidence of breach of the contract, and can exist in the absence of any

contract at all.” Id.


                                         -6-
      Instead, the district court found the facts more analogous to those in Tylinski

v. Klein Automotive, Inc., 90 So. 3d 870 (Fla. 3d DCA 2012). Ham, 260 So. 3d at

455. In Tylinski, a car dealership and buyers entered into two contracts related to

the sale of a vehicle: a financing agreement, which contained an attorney’s fee

provision, and a sales contract, which did not. Tylinski, 90 So. 3d at 871-72. The

car dealership subsequently sued the buyers for breach of the sales contract. Id. at

872. The buyers prevailed, but the Third District held that they were not entitled to

fees under the provision in the financing agreement and section 57.105(7). Id. at

872-73. Though the buyers argued “that both contracts were relevant because the

sale would not have existed but for the financing,” Ham, 260 So. 3d at 456 (citing

Tylinski, 90 So. 3d at 872), the Third District noted that “the dealership sought

recovery under the” sales contract instead of the financing agreement, Tylinski, 90

So. 3d at 872. As a consequence, the Third District explained, “there [was] no

contractual avenue for recovering attorney’s fees.” Id.

      The First District concluded that “[t]he same reasoning applie[d]” to the case

before it. Ham, 260 So. 3d at 456. “Although the debtors would not have credit

card debt but for their contracts with the Bank,” the court noted, “Portfolio did not

sue under the credit contracts.” Id. Therefore, just as in Tylinski, “there [was] no

contractual avenue for recovering attorney’s fees.” Id. (quoting Tylinski, 90 So. 3d

at 872).


                                        -7-
      The district court also rejected the argument that the inclusion in Portfolio’s

claims of contractually accrued late fees and interest charges indicated that the

claims were “inextricably intertwined” with the credit contracts. Id. In addressing

this point, the court recognized that “[t]he elements of a claim for account stated

required Portfolio to show it had a business relationship with the debtor,” but

concluded that the contract on which the business relationship between the creditor

and the debtor was based was “irrelevant” to the account stated cause of action. Id.

Accordingly, the First District affirmed the county court’s orders denying the

debtors’ motions for attorney’s fees. Id. In so ruling, the First District certified

conflict with the Second District’s contrary decision in Bushnell, 255 So. 3d 473.

Ham, 260 So. 3d at 456.

                        Certified Conflict Case—Bushnell

      In Bushnell, Portfolio, “as the successor in interest to the original creditor,”

brought an account stated cause of action against Katrina Bushnell to recover

unpaid credit card debt. Bushnell, 255 So. 3d at 474. After Bushnell filed an

answer raising affirmative defenses and asserting entitlement to attorney’s fees, id.,

Portfolio voluntarily dismissed the case, id. at 475. Bushnell subsequently moved

for attorney’s fees, based on the credit card contract—which allowed the creditor

to recover fees if required to ask an attorney who was not an employee to collect

an account—and section 57.105(7). Id. The trial court denied the motion. Id.


                                         -8-
      On appeal, the Second District reversed. Id. at 474. The central dispute in

the case, the Second District recognized, was whether the account stated claim

“constitute[d] an action with respect to the credit card agreement” as required by

section 57.105(7). Id. at 476. In answering that question, the Second District first

looked to this Court’s opinion in Caufield. The Second District concluded that the

“ ‘inextricably intertwined’ test” established in Caufield was “applicable to

determine whether an action is ‘with respect to the contract’ such that the

reciprocity provision in section 57.105(7) applies.” Id. And that test was satisfied,

the Second District explained, because “the amount due . . . [was] based on the

debtor’s failure to pay under the credit card contract.” Id. at 477 (emphasis

omitted). “[I]f there had been no credit card contract,” the court reasoned, “the

amount due would not have accrued in the first place.” Id.

      The Second District was “not persuaded by Portfolio’s argument that the

application of the inextricably intertwined test to section 57.105(7) [was]

inconsistent with Tylinski.” Id. at 476. The Second District explained that Tylinski

was distinguishable because the court there “did not interpret the ‘with respect to

the contract’ language in section 57.105(7)” in deciding whether the buyers should

recover fees. Id. at 477. “Instead,” the Second District suggested, the Tylinski

“court upheld the denial of attorney’s fees because” the buyers asserted entitlement

to fees under the sales contract, which lacked a fee provision, rather than the


                                         -9-
financing agreement, “which was the contract containing the fee provision.” Id.

Therefore, the buyers “failed to plead a proper basis for the recovery of fees.” Id.

In contrast, the Second District noted, Bushnell properly “asserted her claim for

fees under a provision in the credit card agreement and section 57.105(7).” Id.

Concluding that “Tylinski simply [did] not apply,” id., the Second District reversed

the order denying Bushnell’s motion for fees, id. at 478.

                                    ANALYSIS

      Resolving the certified conflict issue requires us to determine whether the

unilateral attorney’s fee provisions in the credit card contracts are made reciprocal

to the debtors under section 57.105(7). Because this is a matter of statutory

interpretation, the standard of review is de novo. Lopez v. Hall, 233 So. 3d 451,

453 (Fla. 2018).

      In interpreting the statute, we follow the “supremacy-of-text principle”—

namely, the principle that “[t]he words of a governing text are of paramount

concern, and what they convey, in their context, is what the text means.” Antonin

Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 56

(2012). We also adhere to Justice Joseph Story’s view that “every word employed

in [a legal text] is to be expounded in its plain, obvious, and common sense, unless

the context furnishes some ground to control, qualify, or enlarge it.” Advisory Op.

to Governor re Implementation of Amendment 4, the Voting Restoration


                                        - 10 -
Amendment, 288 So. 3d 1070, 1078 (Fla. 2020) (quoting Joseph Story,

Commentaries on the Constitution of the United States 157-58 (1833), quoted in

Scalia & Garner, Reading Law at 69).

      We thus recognize that the goal of interpretation is to arrive at a “fair

reading” of the text by “determining 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.” Scalia & Garner, Reading Law at

33. This requires a methodical and consistent approach involving “faithful reliance

upon the natural or reasonable meanings of language” and “choosing always a

meaning that the text will sensibly bear by the fair use of language.” Frederick J.

de Sloovère, Textual Interpretation of Statutes, 11 N.Y.U. L.Q. Rev. 538, 541

(1934), quoted in Scalia & Garner, Reading Law at 34.

                        Section 57.105(7), Florida Statutes

      Section 57.105(7) provides, in relevant part:

      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 parties offer competing interpretations of what is required under section

57.105(7). In the debtors’ view, the statute applies when two requirements are

satisfied. First, the contract must have “a provision allowing attorney’s fees to a


                                        - 11 -
party when he or she is required to take any action to enforce the contract,” and

second, the other party that is seeking fees must “prevail[] in any action, whether

as plaintiff or defendant, with respect to the contract.” § 57.105(7), Fla. Stat.

Portfolio, on the other hand, contends that the statute is applicable when (1) an

action is brought to enforce a contract which contains a unilateral fee provision,

and (2) the party not named in the fee provision prevails in that action. According

to Portfolio, an account stated claim cannot be considered an action to enforce a

contract. Portfolio also argues that it—as the party benefitting from a unilateral

attorney’s fee provision—gives up its right to collect fees from consumers when it

chooses to file a common law cause of action.

      Contrasting formulations of the statutory requirements are also found in the

decisions below. In both Ham and Bushnell, the district court was presented with a

certified question of great public importance that framed the issue as whether an

account stated claim is an action “to enforce a contract.” Ham, 260 So. 3d at 453-

54; Bushnell, 255 So. 3d at 474. In line with its interpretation of section 57.105(7),

the Second District rephrased the question to ask whether the claim was one “with

respect to the contract.” Bushnell, 255 So. 3d at 474. The First District, however,

answered the question as put forth by the lower court. Ham, 260 So. 3d at 456.

      We conclude that the result reached in Bushnell and sought by the debtors is

supported by the text of section 57.105(7). Section 57.105(7) applies when (1) the


                                         - 12 -
contract includes “a provision allowing attorney’s fees to a party when he or she is

required to take any action to enforce the contract,” and (2) the other “party

prevails in any action, whether as plaintiff or defendant, with respect to the

contract.” § 57.105(7), Fla. Stat. It is readily apparent that the argument presented

by the debtors closely tracks the text of the statute while Portfolio’s argument—

which was accepted by the First District—diverges from the text. The “enforce the

contract” language describes what is required of the contractual provision—not of

the claim raised by the plaintiff. That portion of the statute is anchored by the

phrase “[i]f a contract contains a provision.” It presents a question that can be

answered simply by reviewing the provisions of the contract. The “with respect to

the contract” language, however, presents a question that requires considering the

claims actually litigated and determining the existence of the required relationship

between the contract and the litigation in which the other party prevails.

      Here, both contracts between the creditor and debtors contained provisions

granting the creditor the right to recover “collection costs”—“including . . .

attorney’s fees” if the creditor used the services of an attorney who was not the

creditor’s salaried employee for “collect[ing]” the debtor’s account. Such a

provision authorizing fees for the use of a lawyer to collect the account of a debtor

is “a provision allowing attorney’s fees to a party when he or she is required to

take any action to enforce the contract.” § 57.105(7), Fla. Stat. Action to collect


                                        - 13 -
an account established under a contract is encompassed by the phrase “any action

to enforce the contract.” So the first element of section 57.105(7) is readily

satisfied by the terms of the credit contract fee provisions.

      In accordance with this analysis we thus reject the proposition argued by

Portfolio and accepted by the First District that the credit card contract fee

provisions did not extend by their plain terms to account stated causes of action.

There is no tenable argument that a provision authorizing fees for action to collect

a debtor’s account does not encompass account stated claims.

      The only question remaining regarding the proper interpretation of the

statute is whether the second element of that statute was met—that is, whether the

debtors “prevail[ed] in any action, whether as plaintiff or defendant, with respect to

the contract.” Id. Namely, whether the account stated action in which each debtor

prevailed was an “action . . . with respect to the contract.”

      The phrase “with respect to” is a longer way of saying “respecting.”

Respecting means “with regard or relation to: REGARDING, CONCERNING.”

Webster’s Third New International Dictionary Unabridged 1934 (1993 ed.). The

scope of “with respect to” is necessarily broader than terms such as “based on,”

“under,” or “pursuant to.” “With respect to” in this context requires a relationship

with the contract containing a unilateral fee provision that may be different than

and not as immediate as the relationship that would be required if “based on,”


                                         - 14 -
“under,” or “pursuant to” were the operative language. “[W]ith respect to” is

inclusive of those other terms, but it sweeps more broadly.

       The Supreme Court has recently recognized—in a case involving the

interpretation of a provision of the bankruptcy code—that “[u]se of the word

‘respecting’ in a legal context generally has a broadening effect, ensuring that the

scope of a provision covers not only its subject but also matters relating to that

subject.” Lamar, Archer & Cofrin, LLP v. Appling, 138 S. Ct. 1752, 1760 (2018).

The Court held that a statement regarding a single asset is a “statement . . .

‘respecting’ a debtor’s financial condition [because] it has a direct relation to or

impact on the debtor’s overall financial status.” Id. at 1761. In reaching this

conclusion, the Court rejected an argument—similar to the argument made in the

dissent here—that a narrow sense of “respecting” should be employed in

interpreting the statutory provision. The Court stated that it found “no basis to

conclude . . . at least in this context, that ‘related to’ has a materially different

meaning than ‘about,’ ‘concerning,’ ‘with reference to,’ and ‘as regards’ ” and

observed that “[t]he definitions of these words are overlapping and circular, with

each one pointing to another in the group.” Id. at 1759; see also Morales v. Trans

World Airlines, Inc., 504 U.S. 374, 383 (1992) (holding that “ordinary meaning” of

statutory phrase “relating to” “is a broad one—‘to stand in some relation; to have

bearing or concern; to pertain; refer; to bring into association with or connection


                                          - 15 -
with,’ Black’s Law Dictionary 1158 (5th ed. 1979)—and the words thus express a

broad . . . purpose”).

      Although the account stated claims brought by Portfolio perhaps could not

fairly be said to be claims brought “based on,” “under,” or “pursuant to” the credit

contracts, there is nonetheless a clear and direct relationship between the credit

contracts and the account stated claims. As the First District recognized, an

essential element of an account stated cause of action is proof of the existence of a

business relationship between the parties. Ham, 260 So. 3d at 456; see also

Farley, 37 So. 3d at 937 (explaining that prevailing on an account stated claim

requires proof of “an agreement between persons who have had previous

transactions, fixing the amount due in respect of such transactions, and promising

payment” (emphasis added) (quoting Martyn v. Amold, 18 So. 791, 793 (Fla.

1895))).

      The business relationship and the previous transactions between the debtors

and the creditor were predicated on the credit card contracts. Without those

contracts, there would have been no business relationship or previous transactions.

The accounts that the creditor sought to collect came into existence as a result of

the operation of those credit card contracts. So it is a fair reading to say that the

account stated actions on which the debtors prevailed were actions “with regard or




                                         - 16 -
relation to” those credit card contracts and that the second element of the statutory

provision was therefore satisfied.

      We are unpersuaded by the dissent’s contention that we should adopt a

narrow reading of “with respect to” that would preclude the award of fees to the

debtors. In the context of the reciprocal fee statute—which manifests a purpose to

help level the playing field when a contract contains a unilateral attorney’s fee

provision—the capacious phrase “with respect to” would be a very odd choice to

signal the cramped meaning urged by the dissent. We do not believe that it is

reasonable to conclude that the legislature would have used a term that is generally

recognized to have a “broadening effect” to impose the sort of limitations

suggested by the dissent when other terms clearly denoting such limitations are

readily available. And the rule of “strict construction” advocated by the dissent—

whatever its merits—by no means supports an interpretation of a text that is

unreasonable in context.

      Here, the “strict construction” advocated by the dissent would deny

attorney’s fees to a prevailing debtor in litigation even though the prevailing

creditor in the same litigation would be eligible for an award of fees based on the

unilateral contract provision. In its wholly implausible argument that the fee

provisions in the credit card contracts afforded it no eligibility for fees in its

account stated collection actions, the creditor shows a keen awareness of the patent


                                          - 17 -
anomaly in denying fees to a prevailing debtor under section 57.105(7) even

though the creditor would be eligible for fees under the unilateral contract

provision if the creditor prevailed. If the text of the statute required such an

anomalous result, we would be bound to enforce the statute according to its terms.

But a fair reading of the key language employed by the legislature—“with respect

to”—which is equivalent to the “respecting” language the Supreme Court

recognized generally to have a “broadening effect,” does not require that

anomalous result. Far from it.

      We also reject the view that allowing the debtors fees somehow precludes

Portfolio from choosing its cause of action. Portfolio was free to choose any action

that might be available to enforce its rights. The issue of fees is a separate matter

that depends on the contractual provision relating to fees and the relationship of the

action brought to that contract. Portfolio could by no means after the fact choose a

fee provision other than the one in the credit card contracts between the creditor

and debtors. And Portfolio had no right to alter the impact of those provisions by

unilaterally disavowing an intent to rely on them.

      Finally, we find neither Caufield nor Tylinski instructive. Caufield

considered the scope of a bilateral fee provision and thus has no analysis

concerning section 57.105(7). Caufield, 837 So. 2d at 373. Furthermore, the

contractual language at issue in Caufield—“ ‘arising out of’ the contract”—is


                                         - 18 -
different from the statutory language at issue here. Id. Tylinski, unlike Caufield,

does address a unilateral fee provision. Tylinski, 90 So. 3d at 872 & n.4. But the

Tylinski opinion does not engage the text of the statute. It apparently was decided

based on a defect in pleading. See id. at 872. So our analysis of the statutory text

does not rely on either Caufield or Tylinski.

                                  CONCLUSION

      We conclude that the unilateral fee provisions in the credit card contracts are

made reciprocal to the prevailing debtors under section 57.105(7). Accordingly,

we approve the result in Bushnell and quash Ham.

      It is so ordered.

POLSTON, LABARGA, LAWSON, and COURIEL, JJ., concur.
MUÑIZ, J., dissents with an opinion.
GROSSHANS, J., did not participate.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
MUÑIZ, J., dissenting.

      I agree with a great deal of the majority opinion. I agree with its invocation

of the “supremacy of text” principle. I agree with its two-step framework for

interpreting section 57.105(7). And I agree that the consolidated cases ultimately

turn on the interpretation and application of the statutory phrase “action with

respect to the contract.” However, I cannot agree with the majority’s interpretation

of that phrase here.


                                        - 19 -
       It is undisputed that an “account stated” cause of action—the only claim in

these cases—is not a contract action and does not depend on proof of an

underlying contract. It also is undisputed that Portfolio did not rely on the contract

to prove its account stated claim, that the debtors did not rely on the contract as

part of any defense, and that no party presented the contract as evidence at trial.

While Portfolio perhaps could have chosen to use the contract to show its business

relationships with the debtors, it did not do so. Under these circumstances, the

statute’s “action with respect to the contract” requirement for attorney’s fees is not

satisfied.

       “With respect to” is a phrasal preposition, many of which “are symptoms of

officialese, bureaucratese, or other types of verbose style.” Bryan A. Garner,

Grammar and Usage, in The Chicago Manual of Style para. 5.174, at 280 (17th ed.

2017). Garner recommends replacing such phrases with single-word prepositions

if a single word “will do in context.” Id. And he adds: “For example, if about will

replace with regard to or in connection with, a judicious editor will inevitably

prefer to use the simpler expression.” Id.

       Quite reasonably, the majority thus equates “with respect to” with the single

word “respecting.” As the majority notes, “respecting” has the following

definition: “with regard or relation to: REGARDING, CONCERNING.”

Respecting, Webster’s Third New International Dictionary Unabridged (1993 ed.).


                                        - 20 -
In turn, “regarding” is defined as “with respect to: CONCERNING.” Regarding,

Webster’s, supra. And concerning is defined as “relating to: REGARDING,

RESPECTING, ABOUT.” Concerning, Webster’s, supra.

      This review of the relevant dictionary definitions leads to two conclusions.

First, the phrase “with respect to” has a range of meanings. The majority equates

“with respect to” with “related to,” which is on the broader end of the spectrum of

permissible meanings. But there are equally permissible meanings on the narrower

end of the spectrum: “regarding” or “about.” Second, and relatedly, the majority’s

interpretation of “with respect to” is a choice, the product of a judgment call made

in the face of a vague statutory phrase. The text itself does not compel the

majority’s interpretation of the statute.

      This is important, because the majority’s result in this case is possible only if

one reads the statute as using “with respect to” in the broader sense of “related to.”

If one instead reads “with respect to” more narrowly as meaning “regarding” or

“about,” the case must come out the other way. An ordinary speaker of English

would not say that a legal “action” is “about” a contract that makes no appearance

in the case.

      So which understanding of “with respect to” correctly captures the meaning

of the phrase as it is used in the context of this particular statute? For several




                                            - 21 -
reasons, I believe that interpreting “with respect to” in the narrower sense is the

better reading of the statute.

      First, understanding “with respect to” as meaning “about” would have the

effect of limiting the statute’s reach to contract actions. And that is as it should be,

because at the most basic level, I think a reader of this statute would most naturally

see it as applying to contract cases and not to non-contract cases. To my mind, this

sentence from the Fourth District captures how an ordinary person would

understand the thrust of the statute: “[T]he purpose behind section 57.105(7) is to

provide mutuality of attorney’s fees as a remedy in contract cases.” Mediplex

Constr. of Fla., Inc. v. Schaub, 856 So. 2d 13, 15 (Fla. 4th DCA 2003).

      Second, understanding “with respect to” in its narrower sense preserves a

semblance of symmetry within the statute itself. The operative sentence in its

entirety reads:

      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.

This sentence’s first clause shows that the Legislature was concerned with

contracts that entitle only one party to attorney’s fees when that party takes “any

action to enforce the contract.” The second clause shows that the Legislature

addressed this concern by effectively writing into such contracts a provision



                                         - 22 -
granting the other party a right to attorney’s fees in “any action with respect to the

contract.” To be sure, “with respect to the contract” is broader than “enforce the

contract,” no matter how one reads the former phrase.

      But how much broader? It is reasonable to infer that the Legislature used

the broader language to err on the side of the non-named party in contract actions

that might not involve “enforcement” of the contract (for example, actions to

construe or rescind the contract). It is less reasonable to infer that the Legislature

would have used the broader language to reach cases in which the contract is not

the subject matter of the action at all. This is especially true because the statute

gives the unnamed party attorney’s fee rights not just as a defendant but as a

plaintiff as well. Adopting the majority’s broader understanding of “with respect

to” puts the statute’s two clauses out of balance.

      The majority understandably emphasizes that the contractual attorney’s fee

provision at issue here would have applied to an account stated action had the

creditor prevailed. (In these particular cases, of course, under our case law

Portfolio could not have recovered fees because they were not pled in the

complaints.) But neither the majority nor I read the statute as requiring strict

reciprocity; neither of us interprets the “with respect to the contract” clause of the

statute as meaning that the unnamed party gets exactly the same attorney’s fee

rights that the named party would have gotten. Depending on the case, sometimes


                                         - 23 -
the difference between the first and second clauses will mean that the unnamed

party gets greater rights than the named party, sometimes less. Because the

Legislature chose not to require pure reciprocity, some imbalance between the

statute’s first and second clauses is unavoidable; my interpretation seeks to

minimize that imbalance.

      Third, the narrower reading of the statute is consistent with the longstanding

“rule in Florida requir[ing] that statutes awarding attorney’s fees must be strictly

construed.” Gershuny v. Martin McFall Messenger Anesthesia Prof. Ass’n, 539

So. 2d 1131, 1132 (Fla. 1989). By setting a background principle of interpretation,

this canon properly informs the way the Legislature would use and the public

would understand a vague phrase in an attorney’s fee-granting statute. The canon

tells us that, in the specific context of a statutory attorney’s fee provision, the

expected meaning of the vague phrase “with respect to” is the narrower meaning.

      Finally, understanding “with respect to” in its narrower sense would allow

courts to administer the statute more objectively and thus more predictably. The

narrower meaning of “with respect to” yields a bright-line rule: if the contract with

the unilateral attorney’s fee provision makes no appearance in the case, then the

case is not an “action with respect to the contract.” By contrast, the majority’s

reading of the phrase introduces unnecessary ambiguity and difficulty of

application. Justice Scalia captures the problem in his inimitable style: “[A]s many


                                          - 24 -
a curbstone philosopher has observed, everything is related to everything else.”

Cal. Div. of Lab. Stds. Enf’t v. Dillingham Constr., 519 U.S. 316, 335 (1997)

(Scalia, J., concurring).

      Having adopted the “related to” test, the majority applies the test reasonably

in this case. But the test itself defies consistent and objective application. What

kind of connection between a non-contract action and the “related” contract is

sufficient to trigger the statute’s attorney’s fee provision? Under the better reading

of section 57.105(7), this question need not be asked.

      For these reasons, I respectfully dissent.

Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions/Certified Direct Conflict of Decisions

      First District - Case Nos. 1D17-3112 and 1D17-3113

      (Escambia County)

Robert N. Heath, Jr. of Robert N. Heath, P.A., Pensacola, Florida; and Louis K.
Rosenbloum of Louis K. Rosenbloum, P.A., Pensacola, Florida,

      for Petitioners

Diane G. DeWolf, Katherine E. Giddings, and Nancy M. Wallace of Akerman
LLP, Tallahassee, Florida,

      for Respondent

Janet R. Varnell of Varnell & Warwick, P.A., Lady Lake, Florida; Lynn Drysdale
of Jacksonville Area Legal Aid, Inc., Jacksonville, Florida; Craig E. Rothburd of
Craig Rothburd, P.A., Tampa, Florida; and Arthur Rubin of We Protect
Consumers, P.A., Tampa, Florida,


                                        - 25 -
      for Amicus Curiae The National Association of Consumer Advocates

Ronald S. Canter of The Law Offices of Ronald S. Canter, LLC, Boca Raton,
Florida,

      for Amici Curiae National Creditors Bar and Association and Florida
      Creditors Bar Association

Hector E. Lora of Maurice Wutscher LLP, Fort Lauderdale, Florida,

      for Amicus Curiae Receivables Management Association
      International, Inc.




                                     - 26 -

Add comment