DAVID C. KYTE

v.

DISCOVER BANK

CASANUEVA, Judge. David C. Kyte appeals an order determining that he was not entitled to attorney's fees and costs which were incurred in Discover Bank's breach of contract action against him. Discover Bank initiated this action by filing a statement of claim against Mr. Kyte in county court alleging that he defaulted on the terms of his credit card agreement.

However, before Discover Bank was able to obtain service of process on Mr. Kyte, the case was dismissed for lack of prosecution when counsel for Discover Bank failed to appear at a pretrial conference. Thereafter, Mr. Kyte filed a motion to determine his entitlement to attorney's fees and costs.

The trial court denied the motion, ruling that it had no personal jurisdiction over Mr. Kyte and that he was not the prevailing party for purposes of an award of attorney's fees and costs.

We conclude that both rulings were erroneous and reverse.

I. STANDARD OF REVIEW Generally, an order denying attorney's fees is reviewed for an abuse of discretion, but "[w]here entitlement rests on the interpretation of a statute or contract, our review is de novo." Raza v. Deutsche Bank Nat'l Tr. Co., 100 So. 3d 121, 123 (Fla. 2d DCA 2012) (first citing Country Place Cmty. Ass'n v. J.P. Morgan Mortg. Acquisition Corp., 51 So. 3d 1176, 1179 (Fla. 2d DCA 2010); and then citing Valcarcel v. Chase Bank USA NA, 54 So. 3d 989, 990 (Fla. 4th DCA 2010)); see also Tubbs v. Mechanik Nuccio Hearne & Wester, P.A., 125 So. 3d 1034, 1039 (Fla. 2d DCA 2013) ("[W]hen the trial court's determination of which party prevails depends on the interpretation of a statute or a contract, we apply a de novo standard of review." (citing T & W Devs., Inc. v. Salmonsen, 31 So. 3d 298, 301 (Fla. 5th DCA 2010))).

In the present case, Mr. Kyte's entitlement to attorney's fees and costs is based on the interpretation of the parties' contract, section 57.105(7), Florida Statutes (2021), and Florida Small Claims Rule 7.110(d).

Therefore, this court uses a de novo standard of review to examine the trial court's order.

II. ENTITLEMENT TO COSTS Mr. Kyte argues that he was entitled to recover his costs pursuant to rule 7.110(d), which states that "[c]osts in any action dismissed under this rule shall be assessed and judgment for costs entered in that action." Indeed, Discover Bank's action was dismissed under that rule, as subsection (e) provides for the dismissal of an action for failure to prosecute.

Consequently, Mr. Kyte is correct that rule 7.110(d) provides that he is entitled to recover his costs.

We note that Florida Rule of Civil Procedure 1.420 contains similar language.

Rule 1.420(e) provides for the dismissal of an action for failure to prosecute, and subsection (d) provides for the assessment of costs in any action dismissed under that rule. The Fourth District has held that when a plaintiff voluntarily dismisses an action pursuant to rule 1.420 and there is no agreement to the contrary, the defendant is entitled to costs. Bis v. U.S. Bank Nat'l Ass'n, 172 So. 3d 971, 972 (Fla. 4th DCA 2015). But the court also noted that "rule 1.420 does not contemplate an award of attorneys' fees." Id.

Nonetheless, a party may be entitled to attorney's fees under rule 1.420 if the parties' contract defines costs to include attorney's fees. In Wilson v. Rose Printing Co., 624 So. 2d 257, 258 (Fla. 1993), the Florida Supreme Court held that when a party is entitled to costs pursuant to rule 1.420(d) and the parties' agreement states that "costs" include attorney's fees, then attorney's fees may be awarded under rule 1.420(d).

In Wilson, the court found that the following attorney fee provision in the contract was unambiguous: "In connection with any litigation arising out of this agreement the prevailing party shall be entitled to recover all costs incurred, including reasonable attorney's fees for such litigation and any subsequent appeals." Id. Because rule 1.420(d) entitled the defendant to seek costs, which were defined by the contract to include attorney's fees, the court held that it was irrelevant that no prevailing party had been determined. Id.

The contract in the present case similarly states that "legal costs as permitted by law . . . include reasonable attorneys' fees, court or other collection costs, and fees and costs of any appeal." Therefore, pursuant to Wilson, Mr. Kyte is entitled to recover his attorney's fees pursuant to rule 7.110 even if no prevailing party had been determined.

III. CONTRACT'S ATTORNEY FEE PROVISION Section 57.105(7) provides as follows: 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. In the present case, the contract between the parties provides that if Discover Bank uses an attorney to collect on Mr. Kyte's account, Discover Bank may charge Mr. Kyte its legal costs. As noted above, "[t]hese include reasonable attorneys' fees, court or other collection costs, and fees and costs of any appeal." Therefore, section 57.105(7) permits the trial court to award reasonable attorney's fees to Mr. Kyte if he prevails in any action involving the contract with Discover Bank.

The trial court ruled that Mr. Kyte was not the prevailing party in this case for purposes of an award of attorney's fees.

We disagree. As this court has consistently noted, when a plaintiff's case is dismissed for failure to prosecute, the defendant is the prevailing party. Vivot v. Bank of Am., NA, 115 So. 3d 428, 430 (Fla. 2d DCA 2013) ("Vivot became the prevailing party when the foreclosure suit was dismissed for failure to prosecute."); Baratta v. Valley Oak Homeowners' Ass'n at the Vineyards, Inc., 891 So. 2d 1063, 1065 (Fla. 2d DCA 2004) ("[Defendant] became the prevailing party when [the plaintiff's] claim was dismissed for failure to prosecute."); Norland v. Vills. at Country Creek Master Ass'n, 851 So. 2d 770, 771 (Fla. 2d DCA 2003) ("The appellees became the prevailing party when Norland's claim was dismissed for failure to prosecute."); see also Raza, 100 So. 3d at 124 (holding that where the trial court involuntarily dismissed the lawsuit, the defendant was the prevailing party).

Here, Mr. Kyte was the prevailing party because Discover Bank's lawsuit was dismissed for failure to prosecute, and he was entitled to fees under section 57.105(7) and the parties' contract.

IV. PERSONAL JURISDICTION The trial court found that it had no personal jurisdiction over Mr. Kyte and therefore could not award him attorney's fees. Mr. Kyte contends, and we agree, that it is not necessary for a court to have personal jurisdiction over a defendant to award him attorney's fees. In Two Worlds United v. Zylstra, 46 So. 3d 1175, 1177 (Fla. 2d DCA 2010), this court held that a defendant does not waive a defense of lack of personal jurisdiction by filing a motion for attorney's fees where the motion for fees is defensive and does not seek affirmative relief. In so holding, this court did not discuss whether the lack of personal jurisdiction over the defendant barred an award of attorney's fees. The First District examined this issue in a divorce case and reasoned as follows: Assuming a defendant could demonstrate entitlement to the recovery of fees under Dresser v. Dresser, 350 So. 2d 1152 (Fla. 1st DCA 1977), by the recovery of fees incurred in asserting the jurisdictional defense a defendant, such as the former husband here, would only be placed back in the status existing before the plaintiff sought to assert personal jurisdiction. Since the former husband's motion below only sought to recover the attorney's fees incurred in defending the former wife's claim, we conclude that the request for fees was purely defensive in nature. Heineken v. Heineken, 683 So. 2d 194, 198 (Fla. 1st DCA 1996) (footnote omitted); see Go Realty Grp. FL, LLC v. PNC Bank Nat'l Ass'n, 154 So. 3d

1230 (Fla. 4th DCA 2015) (reversing order that denied appellant's motion to quash service of process and granting appellant's motion for appellate attorney's fees contingent on appellant prevailing in the trial court on the merits). As the court reasoned in Heineken, Mr. Kyte's recovery of the fees he incurred would only place him back in the status existing before Discover Bank sought to assert personal jurisdiction over him.

Finally, we note that even if personal jurisdiction was required to award Mr. Kyte his attorney's fees in this case, at the hearing on the motion for fees, Mr. Kyte's attorney asserted that they were waiving service of process and, consequently, any objection to personal jurisdiction.¹ Kyte was not entitled to recover his attorney's fees and costs pursuant to rule 7.110(d), section 57.105(7), and the parties' contract.

Accordingly, we reverse the trial court's order and remand for proceedings consistent with this opinion.

Reversed and remanded. SILBERMAN and LaROSE, JJ., Concur. Opinion subject to revision prior to official publication.¹ A notice of appearance had been filed by the attorney representing Mr. Kyte, and the attorney was present at the pretrial conference which Discover Bank failed to attend.