JAMES R. REID, APPELLANT,
v.
ARTHUR C. MERRELL, APPELLEE
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In this mortgage foreclosure appeal, the Florida Supreme Court affirmed the lower court's award of principal, interest, taxes, and costs, but reversed the award of $500 in solicitor's fees because the mortgage contract contained no agreement requiring the borrower to pay the lender's legal fees.
The Court affirmed the award of principal, interest, taxes, and costs but reversed the $500 solicitor's fee award because no predicate was laid in the bill of complaint showing that the defendant agreed or was obligated to pay the lender's legal fees, which is a prerequisite to such an award.
“No predicate is laid in the bill of complaint, that complainant ever agreed or was obligated to pay his solicitors any amount to foreclose said mortgage, which is a prerequisite to an awarding of such fees.”
Establishes the fundamental requirement that attorney's fees in foreclosure must be supported by an agreement in the underlying contract or pleadings.
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Join FLexlaw to unlock all legal intelligenceAppellee Merrell brought a mortgage foreclosure action against appellant Reid. The lower court entered a final decree awarding Merrell $2,000 in princ…
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Upon a mortgage foreclosure brought' by appellee, the final decree awarded complainant $2,000.00 as principal, plus $682.57 as interest, plus taxes and costs. The decree also confirmed the report of the general master in chancery finding the sum of $500.00 as a reasonable attorney’s fee. No predicate is laid in the bill of complaint, that complainant ever agreed or was obligated to pay his solicitors any amount to foreclose said mortgage, which is a *1111prerequisite to an awarding of such fees. Blount Bros. Realty Co. v. Eilenberger, 98 Fla. 779, 124 So. R. 41.
Each point raised by appellant has been duly considered and there being no error shown as to awarding the decree for principal, interest, taxes and costs, the final decree is affirmed as to those items. See Wayne Realty & Inv. Co. v. Whitten, 90 Fla. 433, 106 So. R. 125; Simon v. Williams, 140 Miss. 854, 44 A. L. R. 402, 406; Kirkland v. Tampa, 75 Fla. 271, 78 So. R. 17.
The decree is reversed as to the awarding of $500.00 solicitor’s fee, which is nearly 20% of the sum of the principal and interest due. It is not only, excessive, but there is no allegation or proof that complainant ever agreed to pay any fee to his solicitors. Winchester v. Hak, 98 Fla. 1071, 124 So. R. 812.
We do not overlook the fact that this case has heretofore been appealed to this Court from an order overruling a demurrer to the bill of complaint, which demurrer was found to be without merit (Reid v. Merrill, 94 Fla. 964, 114 So. R. 783) and the order overruling same affirmed without formal opinion. It is also noted that the issues are very simple, the transcript containing only 104 pages on this appeal from final decree.
Affirmed in part and reversed in part.
The record in this cause having been considered by the Court, and the foregoing opinion prepared under Chapter 14553, Acts of 1929, adopted by the Court as its opinion, it is considered, ordered and decreed by the Court that the decree of the Court below should be, and the same is hereby, affirmed as to the award for principal, interest, taxes and costs, but that said decree be and the same is hereby reversed as to the awarding of $500.00 solicitor’s fee.
*1112Terrell, C. J., and Whitfield, Ellis and Buford, J. J., concur.
concurring specially: In my opinion the judgment of reversal should be with leave to amend the pleading and introduce proof as to attorney’s fees, to be followed by an appropriate decree in that respect. See Berns v. Harrison, this day filed. 131 So. R. 654. Otherwise, I concur.
Strum, J.,
concurring specially: In my opinion the judgment of reversal should be with leave to amend the pleading and introduce proof as to attorney’s fees, to be followed by an appropriate decree in that respect. See Berns v. Harrison, this day filed. 131 So. R. 654. Otherwise, I concur.
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Citator
Cited By
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Milton v. City of Marianna, 107 Fla. 251 (Fla. 1932)…terfere with the proper administration of justice, an objection for multifariousness may be properly overruled, for only a person who is prejudiced thereby may complain.” Florida East Coast Ry. Co. v. Eno, 99 Fla. 887, 128 So. 622; Taylor v. Taylor, 100 Fla. 1110, 130 So. 713. The procedure adopted in the instant case is not subject to the objection that it interferes with a proper administration of justice or prejudices the rights of appellants. Appellant also contends that there is an adequate and effici…
Authorities Cited
- Kirkland v. City of Tampa, 75 Fla. 271 (Fla. 1918)
- Blount Bros. Realty Co. v. Eilenberger, 98 Fla. 779 (Fla. 1930)
- The Wayne Realty & Inv. Co. v. Whitten, 90 Fla. 433 (Fla. 1925)
- Winchester v. Anton Hak, Jr., 98 Fla. 1071 (Fla. 1929)
- Reed v. Merrill, 94 Fla. 964 (Fla. 1927)