ADRIANNA MIHALYI, APPELLANT,
v.
LASALLE BANK, N.A., APPELLEE

Fla. 4th DCA | 2014-10-29
No. 4D13-2447
LEVINE and KLINGENSMITH, JJ„ concur.
162 So. 3d 113 Florida District Court of Appeal, Fourth District (2014) Positive Treatment
Cited by 13 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Adrianna Mihalyi appeals the trial court's denial of her motion for attorney's fees after LaSalle Bank voluntarily dismissed its foreclosure action against her. The Fourth District Court of Appeal holds that Mihalyi is the prevailing party entitled to recover attorney's fees under both section 57.105(7), Florida Statutes, and the fee provision in her mortgage, and reverses for an evidentiary hearing on the reasonableness of the fees.


Holding

Mihalyi is the prevailing party entitled to recover attorney's fees under both section 57.105(7) and the mortgage provision. Her request for attorney's fees was properly pled in her answer and affirmative defense, complying with Florida Rules of Civil Procedure 1.525. The trial court erred by denying her motion without providing an evidentiary hearing on the reasonableness of the fees, which is mandatory once entitlement is established.


Headnotes

[1] A voluntary dismissal by a plaintiff makes the defendant the prevailing party for purposes of attorney's fees, even if the plaintiff later refiles and prevails.

[2] Section 57.105(7), Florida Statutes, makes a unilateral contract provision for attorney's fees bilateral.

Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Key Quotes

“A plaintiffs voluntary dismissal makes a defendant the "prevailing party" within the meaning of subsection 57.105(7), even if the plaintiff refiles the case and prevails.”

Establishes that Mihalyi qualifies as the prevailing party entitled to fees despite the voluntary dismissal.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

LaSalle Bank initiated foreclosure proceedings against Mihalyi, who filed an answer and affirmative defense seeking attorney's fees under the mortgage…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
CONNER, J.

CONNER, J.

Adrianna Mihalyi appeals the trial court’s order denying her motion for attorney’s fees, which she filed after LaSalle Bank voluntarily dismissed its foreclosure action. She argues that she is entitled to recover prevailing party attorney’s fees pursuant to section 57.105(7), Florida Statutes (2007), and the attorney’s fees provision in her mortgage. We agree.

LaSalle Bank initiated foreclosure proceedings against Mihalyi, and she filed an answer and affirmative defense in which she sought attorney’s fees and costs “under the terms and conditions of the Note and Mortgage sued upon.” Approximately four years later, the trial court issued a notice of lack of prosecution, giving La-Salle Bank sixty days to create record activity. LaSalle Bank filed a notice of voluntary dismissal without prejudice and the court dismissed the case. A week later, Mihalyi filed her motion for attorney’s fees, citing the attorney’s fee provision in the note and mortgage. Section twenty-two of the mortgage provides that the “[Render shall be entitled to collect all expenses incurred in pursuing the remedies ... including, but not limited to, reasonable attorney’s fees and costs.” The trial court denied her motion.

On appeal, Mihalyi argues she is entitled to recover prevailing party attorney’s fees pursuant to section 57.105(7) and the attorney’s fees provision in the note and mortgage, because LaSalle Bank voluntarily dismissed the foreclosure action. LaSalle Bank does not dispute that section 57.105(7) permits Mihalyi to claim fees as the prevailing party. However, LaSalle Bank argues that Mihalyi failed to provide any evidence as to the reasonableness of the fees.

A trial judge’s ruling on a motion for attorney’s fees “is a matter committed to sound judicial discretion which will not be disturbed on appeal, absent a showing of clear abuse of discretion.” Turovets v. Khromov, 943 So.2d 246, 248 (Fla. 4th DCA 2006) (quoting DiStefano Constr., Inc. v. Fid. & Deposit Co. of Md., 597 So.2d 248, 250 (Fla.1992)) (internal quotation marks omitted). However, where entitlement depends on the interpretation of a statute or contract the ruling is reviewed de novo. Stevens v. Zakrzewski, 826 So.2d 520, 521 (Fla. 4th DCA 2002).

A claim for attorney’s fees, whether based on statute or contract, must be pled. Stockman v. Downs, 573 So.2d 835, 837 (Fla.1991). A party pleading entitlement to attorney’s fees must also move the trial court for the same and present proof of fees within a reasonable time after *115the judgment is entered. McAskill Publ’ns, Inc. v. Keno Bros. Jewelers, Inc., 647 So.2d 1012, 1012 (Fla. 4th DCA 1994). Once fee entitlement is determined, the party requesting the fees is entitled to an evidentiary hearing as to the reasonableness of the amount of fees. See Guyton v. Leonard Dewey Wilkinson Action Welding Supply, Inc., 707 So.2d 885, 886 (Fla. 1st DCA 1998).

A plaintiffs voluntary dismissal makes a defendant the “prevailing party” ■within the meaning of subsection 57.105(7), even if the plaintiff refiles the case and prevails. Nudel v. Flagstar Bank, FSB, 60 So.3d 1163, 1165 (Fla. 4th DCA 2011). Subsection 57.105(7) states:

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.

The statute makes a unilateral contract clause for attorney’s fees bilateral in effect. Indem. Ins. Co. of N. Am. v. Chambers, 732 So.2d 1141, 1143 (Fla. 4th DCA 1999). Assuming the request for attorney’s fees is properly pled, “[t]he award is mandatory, once the lower court determines that a party has prevailed.” Holiday Square Owners Ass’n v. Tsetsenis, 820 So.2d 450, 453 (Fla. 5th DCA 2002) (citation omitted).

Since LaSalle Bank voluntarily dismissed the foreclosure action against Mi-halyi, she is the prevailing party. In her answer and affirmative defense, Mihalyi properly pled her claims for attorney’s fees, pursuant to the attorney’s fee provision in her mortgage.1 Then she filed a motion for attorney’s fees within thirty days of the service of voluntary dismissal, in compliance with Florida Rule of Civil Procedure 1.525.

The trial court determined Mihalyi’s entitlement to attorney’s fees at a motion calendar hearing, which was most likely a non-evidentiary hearing. See D’Amato v. D’Amato, 848 So.2d 462, 463-64 (Fla. 4th DCA 2003) (explaining that Broward County does not permit the introduction of evidence at “Motion Calendar” hearings). Therefore, contrary to LaSalle Bank’s arguments, Mihalyi did not have the opportunity to submit evidence and the trial court would not have reached the issue of the reasonableness of the fees at the hearing.

*116The record reveals Mihalyi is entitled to prevailing party attorney’s fees and to an evidentiary hearing on the reasonableness of the amount of fees. Accordingly, we reverse and remand for a determination of the reasonableness of the fees.

Reversed and Remanded for further proceedings

LEVINE and KLINGENSMITH, JJ„ concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Kelly v. Bankunited, FSB, 159 So. 3d 403 (Fla. 4th DCA 2015)
  • Radosevich v. Bank of N.Y. Mellon, 245 So. 3d 877 (Fla. 3d DCA 2018)
  • Pinnacle Three Corp. v. EVS Invs., Inc., 193 So. 3d 973 (Fla. 3d DCA 2016)
    …uling bn a motion for attorney’s fees • is ordinarily reviewed under the abuse of discretion standard. “However, where entitlement depends on the interpretation of a statute or contract the ruling is reviewed de novo.” Mihalyn v. LaSalle Bank, N.A., 162 So. 3d 113, 114 (Fla. 4th DCA 2014) (citing Stevens v. Zakrzewski, 826 So. 2d 520, 521 (Fla. 4th DCA 2002)). In the present case, we review the trial court’s ruling de novo, as it depends on the interpretation of paragraph 7 of the [*976] settlement agreement…

Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited (13 total)

View all 13 cited authorities →

Full citator, related cases, and AI research tools

Open in FLexlaw