ROSEMARY CORPORATION, APPELLANT,
v.
GUY H. PARKER, APPELLEE
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Rosemary Corporation appealed a foreclosure decree that awarded attorney's fees for both the mortgage foreclosure and a separate condemnation proceeding. The Florida Supreme Court reversed the attorney's fee awards, finding no proper basis in the complaint to support such fees, while affirming the underlying foreclosure judgment and lien amount.
The court held that attorney's fees were improperly awarded because there was no allegation in the bill of complaint that constituted a proper basis for introducing evidence of a right to collect such fees, either incident to the foreclosure or the condemnation proceedings. The underlying foreclosure judgment and lien amount were affirmed.
“There is no allegation in the bill of complaint that would constitute a proper basis for the introduction of evidence to prove the existence of the right to collect attorney's fees in this suit, either incident to the foreclosure of the mortgage or incident to the condemnation proceedings referred to in the bill of complaint.”
The core holding that attorney's fees were improper due to lack of allegations in the complaint
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Join FLexlaw to unlock all legal intelligenceRosemary Corporation sought to foreclose a mortgage against Guy H. Parker. The mortgaged property was partially involved in a condemnation proceeding.…
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Buford, J.
This cause having heretofore been submitted to the Court upon the transcript of the record of the decree herein, and briefs and argument of counsel for the respective parties, and the record having been seen and inspected, and the Court being now advised of its judgment to be given in th.e premises, it seems to the Court that there is error in the said decree insofar as it allows a solicitor’s fee of $264.66 for services in the instant suit and the fur ther sum of $1250.00 for the service of a solicitor in defending a condemnation proceeding involving the property described in the mortgage being foreclosed.
There is no allegation in the bill of complaint that would constitute a proper basis for the introduction of evidence to prove the existence of the right to collect attorney’s fees in this suit, either incident to the foreclosure of the mortgage or incident to the condemnation proceedings referred to in the bill of complaint. See Brett v. First National Bank of Marianna and Brooks v. Roberts, decided at this term.
It is contended that the rights of the parties were adjudicated in the condemnation proceedings. There appears to be some reasonable ground for that contention, but, inasmuch as it appears that the condemnation proceedings did not involve all of the lands embraced in the mortgage and the chancellor has construed the judgment and verdict in that proceeding as pertaining only to that part of the security which was involved in the condemnation proceedings and has found by the final decree that there was due the complainant on his mortgage at the time of the foreclosure the sum of $349.78 secured by a lien on that part of the lands embraced in the mortgage and not involved in the condemnation proceedings, together with interest thereon in "the sum of $47.01, and, as there was substantial evidence before the chancellor to sustain this finding, it will not be disturbed.
The decree will be reversed insofar as the same allows attorney’s fees, either for foreclosing the mortgage or for the services of the attorney for the complainant in this suit rendered in the condemnation suit, for the reasons hereinbefore stated. The decree will be affirmed in other respects. Whitfield, P. J., and Strum, J., concur. Terrell, C. J., and Ellis and Brown, J. J., concur in the opinion and judgment.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Rhea v. DeVault, 108 Fla. 591 (Fla. 1933)…ued on, complainant has incurred a liability under the mortgage for such fees, for which he may have a decree against the defendant in the particular case. Brett v. First National Bank, 97 Fla. 284, 120 Sou. Rep. 554; Rosemary Corporation v. Parker, 97 Fla. 691, 121 Sou. Rep. 903. Nothing in the 1931 Chancery Act authorizes the recovery of attorney’s fees in a mortgage foreclosure case unless the bill shows that a liability for such fees has been incurred by complainant. It is not sufficient to merely att…
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Belle C. Peppercorn and her husband v. Bencini, 101 Fla. 446 (Fla. 1931)…ing the payment of $3,491.21 as attorney’s fees. Because of the reason above stated this was error. Brett vs. First National Bank of Marianna, 97 Fla. 284, 120 Sou. 554; Brooks vs. Roberts, 97 Fla. 374, 120 Sou. 765; Rosemary Corporation vs. Parker, 97 Fla. 691, 121 Sou. 903. The decree was filed December 21st, 1928. On September 20th, 1928, the defendants filed in court in Cashiers Checks,- drafts etc. the sum of $35,287.88, which was tendered in payment of principal in the sum of $32,500.00, interest in…