ISADORE SCHWARTZ, APPELLANT,
v.
ROGER BISCONTINI AND NOVILLIA BISCONTINI, HIS WIFE, APPELLEES
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Schwartz appeals a trial court decree that reinstated a lost note and mortgage and awarded attorney's fees to the prevailing party. The Florida appellate court reversed the attorney's fees award, holding that fees are not recoverable absent a statute, contract, or recognized equitable exception, while affirming the reinstatement of the note and mortgage.
The court reversed the award of attorney's fees, holding that attorney's fees are not recoverable in Florida unless provided by contract or statute, and none of the recognized equitable exceptions applied to this case. The court affirmed the remainder of the decree reinstating the note and mortgage.
“attorney's fees are not recoverable in this State unless provided by contract or statute”
Establishes the fundamental rule that fees require a contractual or statutory basis in Florida
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Join FLexlaw to unlock all legal intelligenceIn June 1951, the appellees gave Schwartz a purchase money note and mortgage. The appellees made payments until June 1964, when they tendered final pa…
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The appellant, defendant in the trial court, seeks review of that portion of a final decree awarding the appellees’ attor*82ney's fees in an action to reinstate a lost or misplaced note and mortgage.
On or about June 21, 1951, the appellees gave a purchase money note and mortgage. Thereafter, they made payment on the note until June 1, 1964, at which time they tendered the final payment conditioned upon delivery to them of the original note, mortgage, an abstract, and satisfaction, and a certified copy of the death certificate of the appellant’s wife. The appellant offered the satisfaction, abstract and death certificate, but was unable to furnish the original note and mortgage as they had been lost or misplaced. In June of 1965, the appellees brought the instant suit, seeking to reestablish the lost or misplaced note and mortgage, costs and legal expenses, and equitable relief. Issue was joined and the trial court, sitting as trier of the fact, heard the cause. At the conclusion thereof, the trial court found for the appellees and entered the final decree now under attack.
The appellant contends the trial court abused its discretionary power in awarding the appellees’ attorney’s fees, on the grounds there exists no statute or agreement therefor and there are no facts providing for the payment of said fees under heretofore prescribed equitable principles. Furthermore, the only evidence to support the amount of said award is the testimony of the attorney to whom the fees were awarded. We reverse.
First, there were no pleadings which raised this matter as an issue of damages ; its only .recovery was sought as an item of cost. It has often been stated that attorney’s fees are not recoverable in this State unless provided by contract or statute. See: Webb v. Scott, 129 Fla. 111, 176 So. 442; Brite v. Orange Belt Securities Co., 133 Fla. 266, 182 So. 892; Dorner v. Red Top Cab & Baggage Co., 160 Fla. 882, 37 So.2d 160; Cooper v. Fulton, Fla.App.1963, 158 So.2d 759. There are certain recognized exceptions [see: Lewis v. Gaillard, 70 Fla. 172, 69 So. 797; Wade v. Clower, 94 Fla. 817, 114 So. 548; National Surety Company v. Willys-Overland, Inc., 103 Fla. 738, 138 So. 24; Esch v. Forster, 123 Fla. 905, 168 So. 229; In re Estate, of Cobb, 157 Fla. 590, 26 So.2d 442; Universal Const. Co. v. Gore, Fla.1950, 51 So.2d 429; Fontainebleau Hotel Corporation v. Postol, Fla.App.1962, 142 So.2d 299], none of which exceptions are involved in the instant case.
Not finding any basis, by statute or contract, for the awarding of the attorney’s fees and not finding this cause within the exceptions recognized by the appellate courts of this State, we find it error for the chancellor to have awarded same. It is further noted that even if the appellant would have been liable for attorney’s fees, same were not established by appropriate evidence or testimony. See: Lyle v. Lyle, Fla.App.1964, 167 So.2d 256.
Therefore, for the reasons above stated, we reverse so much of the final decree as related to the award of attorney’s fees and return this matter to the chancellor, with directions to strike said provision. In all other respects, the final decree is affirmed.
Affirmed in part; reversed in part, with directions.
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All-Dixie Ins. Agency, Inc. v. Moffatt, 212 So. 2d 347 (Fla. 3d DCA 1968)…ion that it was error to deny the prayer for an award of costs and attorney’s fees contained in the complaint. It is settled that attorney fees are not recoverable unless provided for by contract or by statute. Schwartz v. Biscontini, Fla.App. 1966, 187 So. 2d 81. The instant case falls readily within the first exception by virtue of the provisions of paragraph 3 of the purchase agreement whereby the party resorting to legal proceedings for enforcement of contract rights is entitled to collect costs and a re…
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Metro. Dade Cnty. v. Norbert J. Stein, 384 So. 2d 167 (Fla. 3d DCA 1980)…attorney’s fees without a statute or contract; however, he felt he could award same under his general equity powers. We find this to be error. Tamiami Abstract and Title Company v. Malanka, 185 So. 2d 493 (Fla. 2d DCA 1966); Schwartz v. Biscontini, 187 So. 2d 81 (Fla. 3d DCA 1966). However, it appears that the period of time for which the wrongfully discharged employee is recovering back wages extends from March 9, 1972 to June 20, 1979, a part of which is subsequent to July 1, 1978. The recovery of back wa…
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Schott Indus., Inc. v. Medow, 309 So. 2d 67 (Fla. 3d DCA 1974)…her it was error for the court to award attorney’s fees to the third party plaintiff. It is well established that attorney’s fees cannot be awarded absent authorization by statute or by agreement of the parties. Schwartz v. Biscontini, Fla.App.1966, 187 So. 2d 81; Lang v. Lang, Fla.App.1971, 252 So. 2d 809. The award of attorney’s fees in this case was presumably authorized by an affidavit guaranteeing payment executed by the third party defendant. The affidavit provides that the third party defendant will…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Neill G. Wade v. Clower, 94 Fla. 817 (Fla. 1927)
- Lyle v. Lyle, 167 So. 2d 256 (Fla. 2d DCA 1964)
- Esch v. Davis Forster, 123 Fla. 905 (Fla. 1936)
- Webb v. Scott, 129 Fla. 111 (Fla. 1936)
- Adeline M. Dorner v. RED TOP CAB & Baggage Co., 160 Fla. 882 (Fla. 1948)
- Nat'l Sur. Co. v. Willys-Overland, Inc., 103 Fla. 738 (Fla. 1931)
- Brite v. Orange Belt Sec. Co., 133 Fla. 266 (Fla. 1938)
- Lewis v. Gaillard, 70 Fla. 172 (Fla. 1915)
- Fontainebleau Hotel Corp. v. Postol, 142 So. 2d 299 (Fla. 3d DCA 1962)
- Cooper v. Fulton, 158 So. 2d 759 (Fla. 3d DCA 1963)