When Will Florida Courts Award Attorney's Fees In Non-Compete Litigation?

It is a fundamental rule of Florida law that an award of attorney's fees is contrary to common law and will only be granted pursuant to contractual or statutory authority. See, e.g., Consol. Ins. Servs. v. Freeman, 848 So.2d 444, 447 (Fla. 4th DCA 2003)(citations omitted); see also, Attorney's Title Insurance Fund, Inc. v. Landa-Posada, 984 So.2d 641, 643 (Fla. 3d DCA 2008)(holding that "[a]ttorney's fees cannot be awarded as a matter of equity."). For parties litigating over the validity of a non-compete agreement, they must either rely on the statute or the terms of the contract in order to recover attorney's fees. Florida Statute § 542.335(1)(k) authorizes a court to award attorney's fees to the prevailing party in non-compete litigation. Section 542.335(1)(k) provides as follows:

In the absence of a contractual provision authorizing an award of attorney's fees and costs to the prevailing party, a court may award attorney's fees and costs to the prevailing party in any action seeking enforcement of, or challenging the enforceability of, a restrictive covenant. A court shall not enforce any contractual provision limiting the court's authority under this section.

The attorney's fee provision of Fla. Stat. § 542.335 was recently applied in Rogers v. Vulcan Manufacturing Co., Inc., 93 So.3d 1058 (1st DCA 2012). In Rogers, an employer sued its former employee alleging the employee breached a non-compete agreement by accepting employment with a competitor. The action was eventually dismissed for failure to prosecute, and the employee sought attorney's fees as the prevailing party. The trial court granted the employee an attorney fee award of $0.00, basing its decision in part on the fact that the employee's new employer paid for the litigation. Id. at 1059. On appeal, the First District reversed, finding that because the employee was the prevailing party in an action to enforce a non-compete agreement, the employee was entitled to attorney's fees representing the cost to defend the action regardless of whether the employee was the one who actually paid for the legal services. Id. at 1061.

In Puleo v. Morris, 98 So.3d 248 (Fla. 2d DCA 2012), the Second District also awarded attorney's fees to the prevailing party under Fla. Stat. § 542.335(1)(k). In Puleo the employer sought to enforce a non-compete agreement against a former employee. The employee opposed...