MICHAEL I. LIBMAN

v.

CARDIOVASCULAR MOBILE SERVICE, INC., ETC.

Third District Court of Appeal

State of Florida

Opinion filed January 28, 2026. Not final until disposition of timely filed motion for rehearing.

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No. 3D24-1994 Lower Tribunal No. 11-7963-SP-05

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Michael I. Libman,

Appellant,

vs.

Cardiovascular Mobile Service, Inc., etc.,

Appellee.

An Appeal from the County Court for Miami-Dade County, Maria D. Ortiz, Judge. Stuart B. Yanofsky, P.A., and Stuart B. Yanofsky (Plantation), for appellant. The Alvarez & Friger Trial Law Firm, and Amado Alan Alvarez, for appellee. Before EMAS, GORDO and BOKOR, JJ. GORDO, J.

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 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.