219 So. 3d 896
Fla. Dist. Ct. App.2017Background
- Lender appealed after the trial court dismissed its amended foreclosure complaint with prejudice for lack of standing.
- Borrower moved for appellate attorney’s fees and costs, relying on the mortgage fee provision and the reciprocity rule in Fla. Stat. § 57.105(7).
- Section 57.105(7) allows a contractual fee provision to be reciprocal but must be strictly construed because it derogates common law.
- The statute requires (1) the movant prevailed and (2) the movant was a party to the contract containing the fee provision.
- Borrower prevailed by arguing the Lender lacked contractual standing to enforce the mortgage; she sought fees under that same contract.
- Trial- and appellate-court rules require costs to be taxed by the lower tribunal; appellate courts do not tax costs first-instance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Borrower is entitled to appellate attorney’s fees under mortgage + §57.105(7) reciprocity | Borrower: prevailing party; mortgage fee clause should be applied reciprocally under §57.105(7) | Lender: Borrower cannot invoke the mortgage fee provision because Borrower prevailed by showing Lender lacked standing under that contract | Denied — A party who prevails by showing the plaintiff lacked standing under the contract cannot recover fees from that same contract under §57.105(7) |
| Whether a non-party/stranger to a contract may recover fees under §57.105(7) | Borrower: statute creates compelled mutuality allowing fees even if provision is one-sided | Lender: statute requires movant be a party entitled to enforce the contract | Denied — reciprocity requires that a contract exist between the parties and that the movant be able to enforce it |
| Whether the appellate court may tax costs directly | Borrower: sought appellate costs | Lender: costs must be taxed by the lower tribunal under rule 9.400(a) | Denied without prejudice — costs must be sought in the trial court within the rule’s timeframe |
| Standard for strict construction of §57.105(7) | Borrower: statute should be applied to grant fees here | Lender: statute is in derogation of common law and must be strictly construed | Court: strict construction applies; statute does not permit fees where contract enforcement is lacking |
Key Cases Cited
- TGI Friday’s, Inc. v. Dvorak, 663 So.2d 606 (Fla. 1995) (Florida follows the American Rule—fees only by statute or contract)
- HFC Collection Ctr., Inc. v. Alexander, 190 So.3d 1114 (Fla. 5th DCA 2016) (§57.105(7) reciprocity cannot be invoked if no contract exists between the parties)
- Bank of N.Y. Mellon Tr. Co., N.A. v. Fitzgerald, 215 So.3d 116 (Fla. 3d DCA 2017) (trial court erred awarding fees based on a non‑existent contract where bank failed to establish standing)
- Florida Med. Ctr., Inc. v. McCoy, 657 So.2d 1248 (Fla. 4th DCA 1995) (no basis to invoke compelled mutuality when no contract exists between the parties)
- McLean v. JP Morgan Chase Bank Nat. Ass’n, 79 So.3d 170 (Fla. 4th DCA 2012) (lender must establish standing at the time suit is filed; cannot cure standing retroactively)