Senior Law Clerk
Florida lawyers litigate fee entitlement all the time—but Libman v. Cardiovascular Mobile Service, Inc. is a clean reminder that courts don’t “fill in” attorney’s-fee rights that the contract doesn’t actually grant.
In Libman, the Third DCA reversed both (1) an order finding entitlement to fees and (2) a final fee judgment, because neither the retainer agreement nor the pleaded statutes supported the award.
What happened procedurally
An attorney (Libman) sued his former client (CMS) for attorney’s fees after the representation ended.
CMS won summary judgment (July 9, 2021) and a final judgment (September 8, 2021), with the trial court reserving jurisdiction on fees.
CMS then sought its own attorney’s fees based on (a) a paragraph in the retainer agreement and (b) section 57.105(7) (the reciprocity provision).
The trial court found entitlement under the agreement/57.105(7), and later entered a final judgment awarding $210,301.40 in fees—citing section 627.428 even though CMS never moved under that statute.
The Third DCA reversed.
The contract language mattered—and it wasn’t broad enough.
The key contractual provision (paragraph eight) was narrow. In substance, it covered two situations:
Collection actions (the firm decides collection methods), and
Reimbursement to the firm if the firm files a lawsuit the clinic wanted pursued, but the clinic later decides it no longer wishes to pursue it.
Critically, the retainer agreement was silent on a general “prevailing party” fee clause for contract enforcement litigation.
So the Third DCA held there was no contractual basis to award fees to CMS in this dispute.
Why section 57.105(7) didn’t save it
Section 57.105(7) can make a one-way contractual fee clause reciprocal—but only when the contract actually contains “a provision allowing attorney’s fees to a party … to enforce the contract.”
Here, because the retainer agreement did not provide for prevailing-party fees for contract enforcement at all, there was nothing for 57.105(7) to “reciprocate.” The court emphasized the baseline rule: attorney’s fees require a specific statutory or contractual basis, and courts are constrained by the actual terms of the fee provision.
The separate pleading problem: fees awarded under a statute nobody asked for
The Third DCA also reversed because the final fee judgment cited section 627.428—but CMS had not pleaded or moved for fees under that statute. The court reiterated that a trial court lacks jurisdiction to award relief not requested in the pleadings or tried by consent.
(And as the opinion notes, section 627.428 was repealed effective March 24, 2023—another reason courts and litigants need to be precise about what fee statutes actually apply.)
Practical takeaways (and drafting fixes)
1) If you want “fees for enforcing this agreement,” say it—explicitly
A retainer clause that covers collection work or client-abandons-suit reimbursement is not the same thing as a prevailing party provision for litigation “arising out of” or “to enforce” the agreement. If you want fees in a contract fight, add a clear enforcement/prevailing-party clause.
2) Don’t assume 57.105(7) creates entitlement out of thin air
57.105(7) is powerful, but it’s not magic. It is derivative—no underlying contractual enforcement-fee clause, no reciprocity.
3) Plead and move under the right authority—or you may lose the award entirely
Even if a fee statute might otherwise apply, a fee judgment can be vulnerable if the basis was never requested. Build the entitlement theory into the pleadings and fee motion from day one.
4) Firm templates deserve periodic “fee entitlement audits”
This is a strong practice-point case for law firms: retainer templates drift over time and often contain narrow fee language aimed at one scenario (e.g., collections) but not broader contract-enforcement disputes.
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