You are on page 1of 6
 
LEXSEE 731 SO. 2D 137
DALE R. LANDRY and wife, ULRIKE P. LANDRY, Appellants, v.COUNTRYWIDE HOME LOANS, INC., Appellee.CASE NO. 98-1594COURT OF APPEAL OF FLORIDA, FIRST DISTRICT731 So. 2d 137; 1999 Fla. App. LEXIS 5309; 24 Fla. L. Weekly D 1067April 27, 1999, Opinion Filed
SUBSEQUENT HISTORY: [**1]
AsCorrected April 30, 1999. Released forPublication May 13, 1999.
PRIOR HISTORY:
An appeal from theCircuit Court for Bay County. ClintonE. Foster, Judge.
DISPOSITION:
Accordingly, the orderdenying attorney's fees is reversed,and this cause is remanded for furtherproceedings.
CASE SUMMARY:PROCEDURAL POSTURE:
Appellantsanswered appellee's mortgageforeclosure complaint by requestingattorney fees under Fla. Stat. ch.57.105(2) (1995). After appelleevoluntarily dismissed complaint,Circuit Court for Bay County (Florida)dismissed appellants' summary judgmentmotion as moot. Exercising discretion,court granted appellants' motion totax costs, but it held that voluntarydismissal did not entitle appellantsto attorney fees. Appellants soughtreview.
OVERVIEW:
Appellee voluntarilydismissed its complaint for mortgageforeclosure against appellants. Thetrial court issued an order dismissingappellants' summary judgment motion asmoot, granting appellants' motion totax costs, but denying appellants'motion for an award of attorney fees.Appellants challenged trial court'sdenial of their specific request forattorney fees pursuant to Fla. Stat.ch. 57.105(2) (1995). Finding that theparties' contract provided thatappellee could collect reasonableattorney fees if required to take anyaction to enforce the note, the courtreversed by holding that the trialcourt abused its discretion in denyingappellants' request for attorney feesbecause ch. 57.105(2) mandated thatcontractual attorney fees provisionswere reciprocal obligations andappellee's voluntary dismissal madeappellants the "prevailing party." Thecourt reasoned that the statelegislature's use of the permissive"may" in ch. 57.105(2) only pertainedto the determination of a prevailingparty in an action founded on acontract. Moreover, there was nowaiver where appellants set forth theclaim for attorney fees in acomplaint, answer, or counterclaim.
OUTCOME:
Holding that appellants werethe prevailing parties becauseappellee voluntarily dismissed themortgage foreclosure complaint with nosuggestion of any intent to refile,the court reversed the trial court'sdenial of appellants' specific requestfor attorney fees because denial wasan abuse of discretion given that theapplicable statute mandated mutualityof attorney fees as a remedy incontract cases.
CORE TERMS:
prevailing party,voluntary dismissal, default,foreclosure, mortgage, summary
 
judgment, total amount, cure,voluntarily dismissed, mortgage note,reciprocal, pled, foreclosure action,appellants filed, remitted,counterclaim, contractual, abused,prayer, account current, motion totax, returning, opposing, cashier's,waived, cured
LexisNexis(R) Headnotes
Civil Procedure > Costs & Attorney Fees > Attorney Fees
[HN1] See Fla. Stat. ch. 57.105(2)(1995).
Civil Procedure > Dismissal of Actions> Voluntary DismissalCivil Procedure > Costs & Attorney Fees > Attorney Fees
[HN2] The general rule is that when aplaintiff voluntarily dismisses anaction, the defendant is theprevailing party for purposes of anattorney fees statute.
Civil Procedure > Dismissal of Actions> Voluntary DismissalCivil Procedure > Costs & Attorney Fees > Attorney Fees
[HN3] It is well established thatattorney fees are properly awardedafter a voluntary dismissal where suchaward is provided for by statute oragreement of the parties.
Civil Procedure > Dismissal of Actions> Voluntary DismissalCivil Procedure > Costs & Attorney Fees > Attorney Fees
[HN4] For purposes of a prevailingparty attorney fees statute, avoluntary dismissal by the claimantmakes the opposing party a "prevailingparty" as to the issue of entitlementto fees.
Civil Procedure > Pleading & Practice> Defenses, Objections & Demurrers Waiver & PreservationCivil Procedure > Costs & Attorney Fees > Attorney Fees
[HN5] Whether based on contract orstatute, a claim for attorney feesmust be pled. Failure to do soconstitutes a waiver of the claim.
Civil Procedure > Pleading & Practice> Pleadings > Interpretation
[HN6] Pursuant to Fla. R. Civ. P.1.100(a), complaints, answers, andcounterclaims are pleadings.
Civil Procedure > Pleading & Practice> Defenses, Objections & Demurrers Waiver & PreservationCivil Procedure > Costs & Attorney Fees > Attorney Fees
[HN7] The failure to set forth a claimfor attorney fees in a complaint,answer, or counterclaim, if filed,constitutes a waiver. However, thefailure to set forth a claim forattorney fees in a motion does notconstitute a waiver.
Civil Procedure > Pleading & Practice> Defenses, Objections & Demurrers Waiver & PreservationCivil Procedure > Pleading & Practice> Defenses, Objections & Demurrers  Motions to DismissCivil Procedure > Costs & Attorney Fees > Attorney Fees
[HN8] The Supreme Court of Floridarequires that a defendant's claim forattorney fees is to be made either inthe defendant's motion to dismiss orby a separate motion which must befiled within thirty days following adismissal of the action. If the claimis not made within this time period,the claim is waived.
Civil Procedure > Costs & Attorney Fees > Attorney Fees
[HN9] The court recognizes that Fla.Stat. ch. 57.105(2) (1995) uses thepermissive "may" with regard to thetrial court's ability to award aprevailing party attorney fee.However, the court believes thediscretion granted by use of "may"pertains to the determination of a
 
prevailing party in an action foundedon a contract. Once the prevailingparty determination has been made, thecourt believes ch. 57.105(2) nowmandates that contractual attorneyfees provisions be reciprocalobligations.
Civil Procedure > Costs & Attorney Fees > Attorney Fees
[HN10] The intent of Fla. Stat. ch.57.105(2) (1995) is to providemutuality of attorney fees as a remedyin contract cases.
COUNSEL:
Douglas L. Smith and David M.Noll of Burke & Blue, P. A., PanamaCity, for Appellants. Michael W. Udowychenko of Butler &Hosch, P.A., Orlando, for Appellee.
JUDGES:
JOANOS, J., BARFIELD, C.J. andERVIN, J., CONCUR.
OPINIONBY:
JOANOS
OPINION: [*137]
JOANOS, J.Dale R. and Ulrike P. Landry(appellants) appeal the trial court'sdenial of an award of attorney's fees,after Countrywide Home Loans, Inc.(Countrywide) voluntarily dismissedits complaint for mortgage foreclosureagainst appellants. Appellants contendthe trial court abused its discretionin refusing to award them anattorney's fee in accordance with theprovisions of section 57.105(2),Florida Statutes (1995). We agree, andreverse the denial of appellants'claim for attorney's fees.The record reflects that on January31, 1994, appellant Dale Landryobtained a Veterans' Administration(VA) loan from AmSouth Bank for thepurchase of residential
[**2]
realproperty. On November 29, 1994,AmSouth Bank sold the note andmortgage to Countrywide. Subsequently,Countrywide filed a complaint toforeclose the mortgage. On June 2,1997, appellants
[*138]
filed theiranswer and affirmative defenses, withattached exhibits. Appellants claimed,among other things, that Countrywidewas estopped from seeking aforeclosure judgment because itrepeatedly refused to accept theamounts claimed to be due prior toacceleration. The concluding paragraphof appellants' pleading states inpertinent part:. . . [Landry] respectfully prays .. . for an award of attorneys' feesand costs from Plaintiff pursuant toSection 57.105(2), Fla.Stat. (1995), .. .The attachments to appellants'answer and affirmative defenses revealthat when appellants failed to makethe December 1, 1996, mortgagepayment, Countrywide rejected theirpayment made in January. In a letterdated February 18, 1997, Countrywideadvised appellants they had the rightto cure the default. Countrywidefurther advised: "To cure yourdefault, you must, on or before March25, 1997, pay Countrywide the amountof $ 1,861.80 plus any additionalregular monthly payment(s), latecharges, fees and
[**3]
charges whichwill become due on or before March 25,1997." In February, Zella Landry, DaleLandry's mother, sent three moneyorders totaling $ 1,861.80 toCountrywide.In a letter dated February 21,1997, Countrywide advised Dale Landrythat the amount remitted did notrepresent the total amount then due,i.e., $ 1,884.30. Then, in a letterdated March 6, 1997, Countrywideadvised it was returning the fundstendered to settle the account becausethe amount remitted did not representthe total amount due to bring theaccount current, i.e., $ 2,485.80.Zella Landry responded by sending acashier's check to Countrywide. Thecheck dated March 24, 1997, was madepayable to Countrywide in the amountof $ 2,485.80.The next correspondence fromCountrywide was dated April 1, 1997.In this communication, Countrywideadvised appellants that the amountremitted did not represent the totalamount due, and that a remittance of $3,100.36 was due to bring the accountcurrent. On April 10, Zella Landry

Reward Your Curiosity

Everything you want to read.
Anytime. Anywhere. Any device.
No Commitment. Cancel anytime.
576648e32a3d8b82ca71961b7a986505