SAVERIO PETRULLI AND JANIE M. PETRULLI, HIS WIFE, APPELLANTS,
v.
DOROTHY CASTELLANO, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JOHN F. CASTELLANO, APPELLEE
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In this mortgage foreclosure appeal, the court reversed an award of attorney's fees to a borrower who successfully defended the foreclosure action. The court held that a contractual provision allowing attorney's fees only to a lender in a foreclosure suit is enforceable as written and does not require mutuality of remedy absent statutory intervention.
The court held that attorney's fees provisions in promissory notes are enforceable according to their terms and do not provide for mutuality of remedy absent statutory authority. The borrower was not entitled to attorney's fees because the contract expressly limited such fees to the lender.
[1] A contractual provision for attorney's fees in a promissory note, allowing only the lender to recover fees upon successful foreclosure, will be enforced as written.
[2] Courts will not rewrite contracts to create mutuality of remedy for attorney's fees absent a statute or unconscionability.
Previewing 2 of 3 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“Attorney's fees are in derogation of the common law, Great American Indemnity Company v. Williams, 85 So. 2d 619 (Fla.1956), and by analogy were not normally obtainable in landlord tenant cases prior to the adoption of Section 83.48, Florida Statutes (1981)”
Establishes the fundamental principle that attorney's fees must be authorized by statute or contract and are not a common law right
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Join FLexlaw to unlock all legal intelligenceA promissory note secured by mortgage contained a provision allowing the lender a reasonable attorney's fee if suit was brought for collection. The bo…
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LETTS, Chief Judge.
This appeal arises from the award of an attorney’s fee to a borrower who successfully defended a mortgage foreclosure action. We reverse.
The promissory note secured by the mortgage provided for a reasonable attorney’s fee to be awarded to the lender “in the event suit shall be brought for the collection hereof.” For reasons which are not necessary to our conclusion, summary judgment was entered in favor of the borrower and later attorney’s fees were also awarded to the borrower’s attorney “just as a matter of equity, good conscience and mutuality.”
We cannot agree with this conclusion. The request for attorney’s fees was not made under Section 57.105, Florida Statutes (1981), but solely on the ground that the borrower had “prevailed.”1 However, this is not a question of the prevailing party being entitled to attorney’s fees. It is a simple contractual provision allowing only the lender to obtain a reasonable attorney’s fee if he successfully forecloses. We see nothing wrong with that and disagree with the mutuality of remedy premise. Attorney’s fees are in derogation of the common law, Great American Indemnity Company v. Williams, 85 So. 2d 619 (Fla.1956), and by analogy were not normally obtainable in landlord tenant cases prior to the adoption of Section 83.48, Florida Statutes (1981), which provides:
If a rental agreement contains a provision allowing attorney’s fees to the landlord when he is required to take any action to enforce the rental agreement, the court may also allow reasonable attorney’s fees to the tenant when he prevails .... [See Guthartz v. Lewis, 408 So. 2d 600 (Fla. 3d DCA 1981)]
A promissory note is just as much a contract as a rental agreement. In consequence, in the absence of a statute, we will not rewrite contracts unless they are unconscionable or against public policy, neither of which is so in this instance.
REVERSED.
BERANEK and GLICKSTEIN, JJ., concur. . The borrower claims on appeal that the lender’s refusal to permit the payments to be brought current was arbitrary, but we see nothing whatever to support a claim of a complete absence of a justiciable issue under Section 57.105 nor did the judge base the award on this premise.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Great Am. Indem. Co. v. Doretha Williams, 85 So. 2d 619 (Fla. 1956)
- Barnett Guthartz v. Lewis, 408 So. 2d 600 (Fla. 3d DCA 1981)