255 So. 3d 473
Fla. Dist. Ct. App.2018Background
- Portfolio Recovery Associates, LLC sued Katrina Bushnell in county court on an account stated theory to collect about $1,021.22 arising from an Amazon store credit card account Portfolio claimed to have acquired.
- The complaint and attachments alleged Portfolio is assignee/successor in interest and owner of the account; Portfolio sued on account stated rather than breach of contract.
- Bushnell answered, asserted affirmative defenses, and sought attorney’s fees under the credit card agreement and the reciprocity provision of section 57.105(7), Fla. Stat.
- Portfolio voluntarily dismissed the action; Bushnell moved for prevailing-party attorney’s fees; the trial court denied fees and certified a question of great public importance.
- The Second District rephrased the certified question to ask whether an account stated action to collect a credit card balance is an action "with respect to the contract" under section 57.105(7), and answered in the affirmative.
- The court reversed the denial of fees and remanded for determination of reasonable attorney’s fees for Bushnell.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an account stated action to collect a credit card balance is an action "with respect to the contract" under § 57.105(7) | Bushnell: statute requires an action "with respect to the contract," which includes account stated because it arises from the credit card agreement | Portfolio: account stated is not an action to enforce the contract; therefore § 57.105(7) does not apply | Held: Yes—account stated to collect under a credit card is "with respect to the contract" because it is inextricably intertwined with the contract; reciprocity § 57.105(7) applies |
| Whether the credit card agreement contains the contractual fee provision required by § 57.105(7) | Bushnell: the agreement expressly permits creditor to recover attorney’s fees in collection actions | Portfolio: not disputed in this case | Held: Agreement contains the required fee provision |
| Whether a voluntarily dismissed plaintiff makes the defendant the prevailing party for fee purposes | Bushnell: dismissal makes defendant the prevailing party entitled to fees | Portfolio: factual posture not disputed | Held: A defendant in a voluntarily dismissed suit is the prevailing party under Florida law |
| Whether the Caufield "inextricably intertwined" test applies to § 57.105(7) | Bushnell: Caufield’s test for "arising out of" claims should apply to the statute’s "with respect to" language | Portfolio: argued distinctions (relied on Tylinski) but district court found Tylinski inapplicable here | Held: Caufield test applies; claims that could not exist but for the contract are "with respect to the contract" |
Key Cases Cited
- Caufield v. Cantele, 837 So. 2d 371 (Fla. 2002) (adopts "inextricably intertwined" test for non-contract claims arising out of a contract)
- Katz v. Van Der Noord, 546 So. 2d 1047 (Fla. 1989) (contract-related claims beyond pure contract causes may fall within contractual fee clauses)
- Kelly v. Tworoger, 705 So. 2d 670 (Fla. 4th DCA 1998) (fraudulent misrepresentation treated as related to contract for fee clause purposes)
- Telecom Italia, SpA v. Wholesale Telecom Corp., 248 F.3d 1109 (11th Cir. 2001) (tortious interference claim considered in relation to contract-based fee clauses)
- Tylinski v. Klein Automotive, Inc., 90 So. 3d 870 (Fla. 3d DCA 2012) (denial of fees where party failed to invoke the contract containing the fee clause)
- Raza v. Deutsche Bank Nat'l Tr. Co., 100 So. 3d 121 (Fla. 2d DCA 2012) (defendant in voluntarily dismissed case is prevailing party for fee purposes)
- Burt v. Hudson & Keyse, LLC, 138 So. 3d 1193 (Fla. 5th DCA 2014) (elements of account stated require agreement fixing amount due)
- Farley v. Chase Bank, U.S.A., N.A., 37 So. 3d 936 (Fla. 4th DCA 2010) (account stated may be based on debtor’s failure to object to a billing statement)