LEXSEE 731 SO.

2D 137

DALE R. LANDRY and wife, ULRIKE P. LANDRY, Appellants, v.

COUNTRYWIDE HOME LOANS, INC., Appellee.

CASE NO. 98-1594

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

731 So. 2d 137; 1999 Fla. App. LEXIS 5309; 24 Fla. L. Weekly D 1067

April 27, 1999, Opinion Filed

SUBSEQUENT HISTORY: [**1] As denial of their specific request for

Corrected April 30, 1999. Released for attorney fees pursuant to Fla. Stat.
Publication May 13, 1999. ch. 57.105(2) (1995). Finding that the
parties' contract provided that
PRIOR HISTORY: An appeal from the appellee could collect reasonable
Circuit Court for Bay County. Clinton attorney fees if required to take any
E. Foster, Judge. action to enforce the note, the court
reversed by holding that the trial
DISPOSITION: Accordingly, the order court abused its discretion in denying
denying attorney's fees is reversed, appellants' request for attorney fees
and this cause is remanded for further because ch. 57.105(2) mandated that
proceedings. contractual attorney fees provisions
were reciprocal obligations and
CASE SUMMARY: appellee's voluntary dismissal made
appellants the "prevailing party." The
court reasoned that the state
PROCEDURAL POSTURE: Appellants legislature's use of the permissive
answered appellee's mortgage "may" in ch. 57.105(2) only pertained
foreclosure complaint by requesting to the determination of a prevailing
attorney fees under Fla. Stat. ch. party in an action founded on a
57.105(2) (1995). After appellee contract. Moreover, there was no
voluntarily dismissed complaint, waiver where appellants set forth the
Circuit Court for Bay County (Florida) claim for attorney fees in a
dismissed appellants' summary judgment complaint, answer, or counterclaim.
motion as moot. Exercising discretion,
court granted appellants' motion to OUTCOME: Holding that appellants were
tax costs, but it held that voluntary the prevailing parties because
dismissal did not entitle appellants appellee voluntarily dismissed the
to attorney fees. Appellants sought mortgage foreclosure complaint with no
review. suggestion of any intent to refile,
the court reversed the trial court's
OVERVIEW: Appellee voluntarily denial of appellants' specific request
dismissed its complaint for mortgage for attorney fees because denial was
foreclosure against appellants. The an abuse of discretion given that the
trial court issued an order dismissing applicable statute mandated mutuality
appellants' summary judgment motion as of attorney fees as a remedy in
moot, granting appellants' motion to contract cases.
tax costs, but denying appellants'
motion for an award of attorney fees. CORE TERMS: prevailing party,
Appellants challenged trial court's voluntary dismissal, default,
foreclosure, mortgage, summary
judgment, total amount, cure, Fees > Attorney Fees
voluntarily dismissed, mortgage note, [HN5] Whether based on contract or
reciprocal, pled, foreclosure action, statute, a claim for attorney fees
appellants filed, remitted, must be pled. Failure to do so
counterclaim, contractual, abused, constitutes a waiver of the claim.
prayer, account current, motion to
tax, returning, opposing, cashier's,
waived, cured Civil Procedure > Pleading & Practice
> Pleadings > Interpretation
LexisNexis(R) Headnotes [HN6] Pursuant to Fla. R. Civ. P.
1.100(a), complaints, answers, and
counterclaims are pleadings.

Civil Procedure > Costs & Attorney

Fees > Attorney Fees
[HN1] See Fla. Stat. ch. 57.105(2)
(1995).
Civil Procedure > Dismissal of Actions
> Voluntary Dismissal
Civil Procedure > Costs & Attorney
Fees > Attorney Fees
[HN2] The general rule is that when a
plaintiff voluntarily dismisses an
action, the defendant is the
prevailing party for purposes of an
attorney fees statute.
Civil Procedure > Dismissal of Actions
> Voluntary Dismissal
Civil Procedure > Costs & Attorney
Fees > Attorney Fees
[HN3] It is well established that
attorney fees are properly awarded
after a voluntary dismissal where such
award is provided for by statute or
agreement of the parties.
Civil Procedure > Dismissal of Actions
> Voluntary Dismissal
Civil Procedure > Costs & Attorney
Fees > Attorney Fees
[HN4] For purposes of a prevailing
party attorney fees statute, a
voluntary dismissal by the claimant
makes the opposing party a "prevailing
party" as to the issue of entitlement
to fees.
Civil Procedure > Pleading & Practice
> Defenses, Objections & Demurrers >
Waiver & Preservation
Civil Procedure > Costs & Attorney
Civil Procedure > Pleading & Practice
> Defenses, Objections & Demurrers >
Waiver & Preservation
Civil Procedure > Costs & Attorney
Fees > Attorney Fees
[HN7] The failure to set forth a claim
for attorney fees in a complaint,
answer, or counterclaim, if filed,
constitutes a waiver. However, the
failure to set forth a claim for
attorney fees in a motion does not
constitute a waiver.
Civil Procedure > Pleading & Practice
> Defenses, Objections & Demurrers >
Waiver & Preservation
Civil Procedure > Pleading & Practice
> Defenses, Objections & Demurrers >
Motions to Dismiss
Civil Procedure > Costs & Attorney
Fees > Attorney Fees
[HN8] The Supreme Court of Florida
requires that a defendant's claim for
attorney fees is to be made either in
the defendant's motion to dismiss or
by a separate motion which must be
filed within thirty days following a
dismissal of the action. If the claim
is 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 the
permissive "may" with regard to the
trial court's ability to award a
prevailing party attorney fee.
However, the court believes the
discretion granted by use of "may"
pertains to the determination of a
prevailing party in an action founded was estopped from seeking a
on a contract. Once the prevailing foreclosure judgment because it
party determination has been made, the repeatedly refused to accept the
court believes ch. 57.105(2) now amounts claimed to be due prior to
mandates that contractual attorney acceleration. The concluding paragraph
fees provisions be reciprocal of appellants' pleading states in
obligations. pertinent part:
. . . [Landry] respectfully prays .
. . for an award of attorneys' fees
Civil Procedure > Costs & Attorney
and costs from Plaintiff pursuant to
Fees > Attorney Fees Section 57.105(2), Fla.Stat. (1995), .
[HN10] The intent of Fla. Stat. ch. . .
57.105(2) (1995) is to provide
mutuality of attorney fees as a remedy The attachments to appellants'
in contract cases. answer and affirmative defenses reveal
that when appellants failed to make
COUNSEL: Douglas L. Smith and David M. the December 1, 1996, mortgage
Noll of Burke & Blue, P. A., Panama payment, Countrywide rejected their
City, for Appellants. payment made in January. In a letter
dated February 18, 1997, Countrywide
Michael W. Udowychenko of Butler & advised appellants they had the right
Hosch, P.A., Orlando, for Appellee. to cure the default. Countrywide
further advised: "To cure your
JUDGES: JOANOS, J., BARFIELD, C.J. and default, you must, on or before March
ERVIN, J., CONCUR. 25, 1997, pay Countrywide the amount
of $ 1,861.80 plus any additional
OPINIONBY: JOANOS regular monthly payment(s), late
charges, fees and [**3] charges which
OPINION: [*137] JOANOS, J. will become due on or before March 25,
1997." In February, Zella Landry, Dale
Dale R. and Ulrike P. Landry Landry's mother, sent three money
(appellants) appeal the trial court's orders totaling $ 1,861.80 to
denial of an award of attorney's fees, Countrywide.
after Countrywide Home Loans, Inc.
(Countrywide) voluntarily dismissed In a letter dated February 21,
its complaint for mortgage foreclosure 1997, Countrywide advised Dale Landry
against appellants. Appellants contend that the amount remitted did not
the trial court abused its discretion represent the total amount then due,
in refusing to award them an i.e., $ 1,884.30. Then, in a letter
attorney's fee in accordance with the dated March 6, 1997, Countrywide
provisions of section 57.105(2), advised it was returning the funds
Florida Statutes (1995). We agree, and tendered to settle the account because
reverse the denial of appellants' the amount remitted did not represent
claim for attorney's fees. the total amount due to bring the
account current, i.e., $ 2,485.80.
The record reflects that on January Zella Landry responded by sending a
31, 1994, appellant Dale Landry cashier's check to Countrywide. The
obtained a Veterans' Administration check dated March 24, 1997, was made
(VA) loan from AmSouth Bank for the payable to Countrywide in the amount
purchase of residential [**2] real of $ 2,485.80.
property. On November 29, 1994,
AmSouth Bank sold the note and The next correspondence from
mortgage to Countrywide. Subsequently, Countrywide was dated April 1, 1997.
Countrywide filed a complaint to In this communication, Countrywide
foreclose the mortgage. On June 2, advised appellants that the amount
1997, appellants [*138] filed their remitted did not represent the total
answer and affirmative defenses, with amount due, and that a remittance of $
attached exhibits. Appellants claimed, 3,100.36 was due to bring the account
among other things, that Countrywide current. On April 10, Zella Landry
sent a cashier's check in the amount efforts to cure [*139] the alleged
of $ 3,100.36 to Countrywide. This default, in accordance with the terms
payment was sent by certified mail; specified by Countrywide. The exhibit
the return receipt indicates the check attached to the Landry affidavit is a
was received by Countrywide on April copy of a letter dated May 15, 1996,
16, 1997. [**4] from Countrywide to Dale R. Landry.
This letter states:
In two separate letters dated May
2, 1997, Countrywide advised On 01-02-96 your payment in the
appellants it was returning the amount of $ 600.00 was applied to
certified check in the amount of $ another account. This error has been
3,100.36. Countrywide further advised corrected and your account has been
the loan was the subject of properly credited. We have removed all
foreclosure proceedings, and payment late charges assessed as a result of
of the total amount due would have to this error.
be made to reinstate the loan. Shortly
thereafter, Countrywide filed requests The payment was received on time
and the account was not delinquent at
for admissions, and its response to
appellants' affirmative defenses. In that point. It should also be noted
that this error may have caused an
their responses to the requests for
admissions, appellants admitted appearance of subsequent delinquencies
that did not actually exist.
payments for December 1996 and January
1997 were not timely, but denied that On [**6] November 7, 1997,
the untimely payments were not cured appellants filed a motion to tax costs
in full. Appellants asserted that and award attorneys' fees. As grounds
months prior to the filing of the therefor, appellants alleged that
complaint, the late payments had been Countrywide dismissed its complaint
cured in full in the amounts requested while defendants' motion for summary
by Countrywide. judgment was still pending. On
On October 29, 1997, appellants November 10, 1997, Countrywide filed a
filed a motion for summary judgment motion to strike the motion for
with exhibits attached. Dale Landry summary judgment, and a voluntary
also filed an affidavit with an dismissal and release of lis pendens.
exhibit attached. Appellants alleged Countrywide alleged that appellants
that each time they attempted to failed to properly plead for an award
comply with the provisions established of costs and fees in their answer and
by Countrywide to cure a technical affirmative defenses, and thus waived
default, Countrywide changed the terms their claim.
and would not accept appellants' At the hearing on the outstanding
reinstatement payments. Appellants motions, the trial court questioned
further alleged the loan had been made the basis for an award of court costs
current, [**5] and Countrywide was and attorney's fees in a foreclosure
liable to appellants for costs and action. Appellants' counsel advised
attorney's fees incurred in opposing that appellants were entitled to
the wrongful foreclosure. In attorney's fees under the reciprocity
accordance with their allegations, provisions of section 57.105(2),
appellants sought entry of an order Florida Statutes. The trial court was
granting summary judgment in their of the view that a voluntary dismissal
favor, an award of attorney's fees and of a mortgage foreclosure action did
costs, and asked the trial court to not entitle the parties opposing
require Countrywide to file a report foreclosure to an award of attorney's
with credit reporting agencies to fees. The court further found the
establish that appellants were award of an attorney's fee under
blameless with respect to the section 57.105(2) was a matter of
foreclosure action. discretion. In light of its findings,
Dale Landry's affidavit sets forth the court issued an order dismissing
a chronology of appellants' many the summary judgment [**7] motion as
moot, granting appellants' motion to
tax costs, but denying appellant's
motion for an award of attorney's
fees.
The statute applicable, [HN1] section
57.105(2), Florida Statutes (1995),
provides:
(2) If a contract contains a
provision allowing attorney's fees to
a party when he or she is required to
take any action to enforce the
contract, the court may also allow
reasonable attorney's fees to the
other party when that party prevails
in any action, whether as plaintiff or
defendant, with respect to the
contract. This act shall take effect
October 1, 1988, and shall apply to
contracts entered into on said date or
thereafter.
The mortgage note underlying this
proceeding was executed January 31,
1994, after the effective date of the
statute. Therefore, the note is
subject to the reciprocal provisions
of section 57.105(2). See Clearman v.
Dalton, 708 So. 2d 324, 325 (Fla. 5th
DCA 1998); Res Panel Refrigeration
Corp. v. Bill Collins Refrigeration
Services, Inc., 636 So. 2d 569, 570
(Fla. 3d DCA 1994). The mortgage note
states in pertinent part:
In the event of default in the
payment of this note, and if the same
is collected by an attorney at law,
the undersigned hereby [**8] agree(s)
to pay all costs of collection,
including a reasonable attorney's fee.
[HN2] The general rule is that
"when a plaintiff voluntarily
dismisses an action, the defendant is
the prevailing party." See Thornber v.
City of Ft. Walton Beach, 568 So. 2d
914, 919 (Fla. 1990). Further, "[HN3]
it is well established that attorney's
fees are properly awarded after a
voluntary dismissal where such award
is provided for by statute or
agreement of the parties." See Century
Construction Corp. v. Koss, 559 So. 2d
611, 612 (Fla. 1st DCA 1990), review
denied, 574 So. 2d 141 (Fla. 1990).
See also Boca Airport, Inc. v. Roll-N-
Roaster of Boca, Inc., 690 So. 2d 640,
641 (Fla. 4th DCA 1997), review
dism'd, 698 So. 2d 543 (Fla. 1997)
("for [HN4] purposes of a prevailing
party attorney's fees statute, a
voluntary dismissal [*140] by the
claimant makes the opposing party a
'prevailing party' as to the issue of
entitlement to fees").
[HN5] Whether based on contract or
statute, a claim for attorney's fees
must be pled. "Failure to do so
constitutes a waiver of the claim."
See Green v. Sun Harbor Homeowners'
Assoc., Inc., 730 So. 2d 1261, 1998
Fla. LEXIS 1672 (Fla. 1998)[23 Fla.
Law W. S 438, S 439], citing Stockman
v. Downs, [**9] 573 So. 2d 835, 837-
838 (Fla. 1991). In Green, the supreme
court instructed that the "must be
pled" language in Stockman is to be
construed in accordance with the
Florida Rules of Civil Procedure.
[HN6] Pursuant to rule 1.100(a),
complaints, answers, and counterclaims
are pleadings. The court further
directed:
Stockman is to be read to hold that
[HN7] the failure to set forth a claim
for attorney fees in a complaint,
answer, or counterclaim, if filed,
constitutes a waiver. However, the
failure to set forth a claim for
attorney fees in a motion does not
constitute a waiver. [footnote
omitted] Until a rule is approved for
cases that are dismissed before the
filing of an answer, we [HN8] require
that a defendant's claim for attorney
fees is to be made either in the
defendant's motion to dismiss or by a
separate motion which must be filed
within thirty days following a
dismissal of the action. If the claim
is not made within this time period,
the claim is waived.
See Green, 23 Fla. L. Weekly at S439.
Appellants in this case raised
their initial claim for attorney's
fees in the prayer portion of their
answer and affirmative defenses to
Countrywide's complaint. Their claim
was not [**10] phrased in the general
terms deemed deficient in Dealers
Insurance v. Haidco Investment
Enterprises, 638 So. 2d 127, 129 (Fla.
3d DCA 1994). Rather, appellants'
initial request for attorney's fees
was set forth in their answer with a (unless defendant was not the
specific reference to the applicable prevailing party due to plaintiff's
statute, and, by implication, to the refiling its action, petitioner
contract, upon which the claim was entitled to attorney's fees as
based. Appellants repeated their prevailing party where plaintiff
request for attorney's fees in the voluntarily dismissed its suit);
body of their motion for summary Lanahan Lumber Company, Inc. v.
judgment and in the prayer portion of McDevitt & Street Company, 611 So. 2d
the motion, albeit without further 591, 592 n. 1 (Fla. 4th DCA 1993)("The
reference to the statutory authority [HN10] intent of § 57.105(2) is to
upon which the claim was based. In the provide mutuality of attorney's fees
circumstances, we reject Countrywide's as a remedy in contract cases.").
assertion that the claim for
In the instant case, appellants
attorney's fees was not properly pled.
specifically requested attorney's fees
The trial court's denial of a pursuant to section 57.105(2) in their
prevailing party attorney's fee was answer to Countrywide's complaint.
based, in part, on the court's finding Countrywide voluntarily dismissed the
that the decision whether to award an complaint with [*141] no suggestion
attorney's fee under section 57.102(2) of any intent to refile the action. By
is a matter of discretion. We [HN9] virtue of [**12] the voluntary
recognize that section 57.105(2) uses dismissal, appellants are the
the permissive "may" with regard to prevailing parties. n1 See Thornber v.
the trial court's ability to award a City of Ft. Walton Beach. Pursuant to
prevailing party attorney's fee. section 57.105(2), the contractual
However, we believe the discretion attorney's fee provisions included in
granted by use of "may" pertains to the underlying mortgage note are
the determination of a prevailing reciprocal obligations. Therefore, we
party in an action founded on a conclude the trial court abused its
contract. [**11] See Hutchinson v. discretion in denying appellants'
Hutchinson, 687 So. 2d 912, 913 (Fla. request for attorney's fees.
4th DCA 1997). Once the prevailing
party determination has been made, we
believe section 57.105(2) "now n1 Moreover, it appears the
mandates that contractual attorney's trial court implicitly recognized
fees provisions be reciprocal appellants' prevailing party
obligations." See Jakobi v. Kings status in its award of costs.
Creek Village Townhouse Ass'n, 665 So.
2d 325, 326 (Fla. 3d DCA 1995). See
also Oakwood Plaza, L.P. v. D.O.C. Accordingly, the order denying
Optics Corp., 708 So. 2d 959, 960 attorney's fees is reversed, and this
(Fla. 4th DCA), review denied by cause is remanded for further
D.O.C. Optics Corp. v. Oakwood Plaza, proceedings.
L.P., 725 So. 2d 1107 (Fla. 1998)
BARFIELD, C.J. and ERVIN, J., CONCUR.