Reminder: Attorney’s fees are not automatic in non-compete cases

Fla. Stat. § 542.335 (Enforcement of Non-Compete Statute) gives the trial court the discretion to deny a request for an award of attorney’s fees by a prevailing party in a non-compete enforcement action. In Tesla Electric, Armature and Machine, Inc. v. JLM Advanced Technical Services, Inc., 38 Fla. L. Weekly D2591 (Fla. 1st DCA December 10, 2013), the First District Court of Appeal reversed the trial court’s decision to deny attorney’s fees under the statute because the record was not sufficiently developed.  As a result, the case was sent back to the trial court to provide specific findings to support the denial of the request for an award of attorney’s fees.  The case reminds us that, in the absence of a contractual right to attorney’s fees, a fee award is simply not automatic under the statute.  The simple solution is to include a prevailing party attorney’s fee provision in the non-compete agreements to avoid a situation that gives a judge discretion to award or deny a fee award.