The Plaintiff brought suit against Defendants under Chapter 83, Florida Statutes, seeking unpaid rent. At trial the Court found in the Defendants’ favor, finding that there was no landlord/tenant relationship between the parties, but also finding that if there were such a relationship it was the landlord who breached the agreement by not providing habitable premises.
Defendants moved for attorneys fee under Florida Statute §83.48, which provides in pertinent part, “[i]n any civil action brought to enforce the provisions of the rental agreement or this part, the party in whose favor a judgment [. . .] has been rendered may recover reasonable attorney fees and court costs from the non-prevailing party.”
Plaintiff argued that once the Court found that there was not a landlord/tenant relationship, the Defendants could not avail themselves of the statute in the Residential Landlord-Tenant Act providing for prevailing party attorney’s fees. The Defendants responded that the statute does not reference a “landlord” or “tenant,” but rather a “party,” so that whenever a party, of any characterization, brings a lawsuit under the Residential Landlord-Tenant Act, entitlement to attorney’s fees may be triggered under §83.48, even if it is determined that the Plaintiff was not a “landlord” and the Defendants were not “tenants.”
Prior to 1983, an award of prevailing party attorney’s fees could be awarded only if the Court determined that the defendant was a “tenant.” In 1983, however, the references in the statute to “landlord” and “tenant” were deleted, and the word “party” used instead. 1983 Fla. Laws 83-151, §4. Based on the unambiguous language of the current version of the statute, the focus is whether the action was brought under chapter 83, not who is bringing the action or who is being sued. In the instant case, the Plaintiff brought the action under chapter 83. When the Legislature deleted the words “landlord” and “tenant,” and inserted the word “party,” the Legislature expressed its intention to expand the scope of the statute. Therefore, when the Defendants prevailed in the instant in this action brought under chapter 83, the possibility of an award of fees under §83.48 was triggered. See Tavares v. Villa Doral Master Ass’n, Inc., 23 Fla. L. Weekly Supp. 685b (11th Cir. App. 2015) (although evidence failed to establish a residential lease, defendant was nonetheless entitled to an award of fees under 83.48 because he was sued in an “action brought to enforce the provisions of [. . .] this part”).
When a party prevails in an action brought under the Florida Residential Landlord-Tenant Act, an award of fees is not mandatory, but rather discretionary because the Legislature used the phrase “may recover” rather than “shall recover.” McWhorter v. Consumers Alliance Corp., 14 Fla. L. Weekly Supp. 1108b (17th Cir. App. 2007) (controlling appellate authority in the 17th Circuit). See also J. Hauser, Fla. Residential Landlord-Tenant Manual §11.02[a][i][A] (2007). However, because of the manner in which the Plaintiff “went to the mat” in prosecuting this action for a fairly insubstantial sum, the Court believes an award of fees is warranted. See Progressive Express Ins. Co. v. Schultz, 948 So.2d 1027, 1032 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D548b]. This does not foreclose the Plaintiff’s arguing that any particular time entries sought by Defendants might be unreasonable as to substance or length of time.
WEISS, v. CORAL SQUARE REALTY, INC. Defendants. County Court, 17th Judicial Circuit in and for Broward County. Case No. 17-2400 COCE 53. April 30, 2019. Robert W. Lee, Judge. 27 Fla. L. Weekly Supp. 201a