LIBMAN v. CARDIOVASCULAR MOBILE SERVICE INC (2026)

Michael Libman (“Libman”) appeals the trial court's final orders determining Cardiovascular Mobile Service, Inc.’s (“CMS”) entitlement to an award of attorney's fees and determining the amount of the attorney's fees. We have jurisdiction. Fla. R. App. P. 9.030(b)(1)(A). We reverse.

Libman represented CMS in several cases as co-counsel to the law firm of Pastor, Montes & Naveo (“Firm”),¹ before CMS terminated the representation and requested the return of its files. Libman then sued CMS for attorney's fees. The trial court granted CMS's motion for summary judgment on July 9, 2021, and entered final judgment in CMS's favor on September 8, 2021, reserving jurisdiction to award attorney's fees.

CMS timely moved for attorney's fees under the retainer agreement and section 57.105(7), Florida Statutes.² Paragraph eight of the retainer agreement states in relevant part:

The Firm will in its sole discretion decide which collections method to utilize. If the Firm files a lawsuit that the clinic [sic] advises it wishes to pursue and later the Clinic decides that it does not wish to pursue the case, the Clinic agrees to reimburse the Firm for it's [sic] reasonable attorneys [sic] fees and costs․

On September 21, 2023, the trial court entered an order finding CMS entitled to fees and costs under paragraph eight of the agreement and section 57.105(7), Florida Statutes. On October 7, 2024, the court entered a final judgment awarding CMS $210,301.40 in attorney's fees, citing only section 627.428, Florida Statutes.³ CMS, however, never moved for an award under this section.

Based on the pleadings and the underlying contractual agreement, we find no basis for either entitlement to or the award of attorney's fees. The retainer agreement limits any recoverable fees to those awarded to the Firm in collection actions or owed to the Firm if CMS elects not to pursue a lawsuit the Firm filed. It is silent on prevailing party attorney's fees for contract enforcement. Because the plain language of the agreement does not provide for such fees, the trial court erred in finding CMS entitled to an award of attorney's fees under the agreement or section 57.105(7). See RV-7 Prop., Inc. v. Stefani De La O, Inc., 187 So. 3d 915, 917 (Fla. 3d DCA 2016) (“Attorney's fees cannot be awarded in the absence of a statutory or contractual basis specifically entitling a party to such fees.”); Moore v. State Farm Mut. Auto. Ins. Co., 916 So. 2d 871, 875 (Fla. 2d DCA 2005) (“Fee agreements between attorneys and clients are governed by the law of contracts.”); Bowman v. Kingsland Dev., Inc., 432 So. 2d 660, 664 (Fla. 5th DCA 1983) (“The right to attorney's fees under any contractual provision is limited by the terms of such provision. Attorney's fees are not necessarily recoverable as to any and all litigation relating to a contract that provides for attorney's fees.”); Com. Cap. Res., LLC v. Giovannetti, 955 So. 2d 1151, 1153 (Fla. 3d DCA 2007) (“Where the contractual language is clear and unambiguous, ‘courts may not indulge in construction or modification and the express terms of the [ ] agreement control.’ ” (quoting Sec. Ins. Co. of Hartford v. Puig, 728 So. 2d 292, 294 (Fla. 3d DCA 1999))).

We also find that it was error to award attorney's fees under section 627.428, Florida Statutes. CMS’ pleadings only sought attorney's fees under the agreement and section 57.105(7), not section 627.428. Accordingly, the award under section 627.428 was improper. Wachovia Mortg. Corp. v. Posti, 166 So. 3d 944, 945 (Fla. 4th DCA 2015) (“A trial court is without jurisdiction to award relief that was not requested in the pleadings or tried by consent.”).

Accordingly, we reverse the orders under review determining the entitlement to and determining the amount of attorney's fees.

Reversed.

FOOTNOTES

1.   The Firm entered into a contingency retainer agreement with CMS to prosecute actions for CMS to recover no-fault benefits. The retainer agreement allowed the Firm to retain co-counsel, such as Libman, to prosecute those cases.

2.   Section 57.105(7) provides that “[i]f 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.” § 57.105(7), Fla. Stat.

3.   Section 627.428 states in relevant part that “[u]pon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured's or beneficiary's attorney prosecuting the suit in which the recovery is had.” § 627.428(1), Fla. Stat. This code section was repealed on March 24, 2023.

GORDO, J.