GILES v. PORTFOLIO RECOVERY ASSOCIATES LLC (2021)

In this case involving a consumer credit card agreement, Appellant argues that public policy in Florida entitles him to reciprocal attorney's fees under section 57.105, Florida Statutes, even though the agreement contains a unilateral fee provision and a choice-of-law provision applying the laws of the State of South Dakota (which allows one-sided fee provisions). We affirm because South Dakota law controls this issue under the parties’ agreement. See Se. Floating Docks, Inc. v. Auto–Owners Ins. Co., 82 So. 3d 73, 81 (Fla. 2012) (recognizing that § 57.105 does not advance “a sufficient public policy concern to override the strong policy of protecting freedom of contract”); Walls v. Quick & Reilly, Inc., 824 So. 2d 1016, 1019 (Fla. 5th DCA 2002) (finding that public policy in Florida underlying reciprocal attorney's fee awards was insufficient to outweigh the application of a choice-of-law provision in a contract). We likewise affirm on the waiver issue.

Affirmed.

Florida has “a strong public policy favoring freedom of contract.” City of Largo v. AHF–Bay Fund, LLC, 215 So. 3d 10, 16 (Fla. 2017). Florida courts have long recognized “that parties are free to make what contracts they please, so long as no fraud or deception is practiced and there is no infraction of law.” S. Home Ins. Co. v. Putnal, 57 Fla. 199, 49 So. 922, 930 (1909). Furthermore, “the fact that one of the parties made a rather hard bargain would not avoid the contract.” Id.

Appellant tries to distinguish the holding in Southeastern Floating Docks, Inc. v. Auto–Owners Insurance Company, 82 So. 3d 73 (Fla. 2012), because that case involved a choice of law provision in a commercial contract rather than the consumer credit card contract at issue here. But the Court made no such distinction in Southeastern Floating Docks. Instead, the Court noted cases where contracts applying other states’ law under contractual choice of law provisions, that would be usurious under Florida law, were enforced by Florida courts over public policy objections. Id. at 81. This is so even though usury is unlawful under Florida law and can sometimes result in criminal charges. See ch. 687, Fla. Stat. (2016).

The Florida Legislature knows how to write laws expressing strong public policy. See, e.g., § 61.0401(1), Fla. Stat. (2016) (“As used in this section, the term ‘strong public policy’ means public policy of sufficient importance to outweigh the policy of protecting freedom of contract.”). Unless it does so with section 57.015(7), Florida Statutes, we are required to follow Florida Supreme Court precedent as stated in Southeastern Floating Docks and apply the parties’ contractual choice of law provision. We are therefore correct to uphold the trial court's application of South Dakota law pursuant to the parties’ contract.

Per Curiam.

Osterhaus and Tanenbaum, JJ., concur; Bilbrey, J., concurs with opinion.