PALM BEACH MANAGEMENT CORPORATION, PAUL MOSKOWITZ, JOAN MOSKOWITZ, AND AMERICAN HOME DEVELOPMENT CORPORATION, A FLORIDA CORPORATION, APPELLANTS,
v.
DEWOODY AND COMPANY, P.A., APPELLEE
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.
The court held that a note's provision for attorney's fees, even if valid for trial, does not automatically extend to appellate attorney's fees unless the contract demonstrates mutuality of relief as required by statute.
The appellee sought attorney's fees on appeal based on a provision in a note that allowed for attorney's fees in case of collection. The note itself c…
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.
Explore caselaw by topic → Browse Statutes In Derogation Of Common Law cases and more on FLexlaw
GLICKSTEIN, Judge.
We affirm the final judgment, and write only upon the question of appellee’s right to an attorney’s fee on appeal. There is no question as to the right of appellee to an attorney’s fee at trial. The note in question provided:
The makers and endorsers and all persons that assume the obligation as guarantors to pay this note, hereby agree to pay any and all costs of collection, including a reasonable attorney fee in the event the principal of this note or any payment on the principal or portion thereof or any interest due thereon is not paid at the respective maturity thereof, in any case whether a suit be brought or not.
Section 673.106 Florida Statutes (1985), permits such a provision in a negotiable instrument.
We start with the principle that a statute in derogation of common law must be strictly construed; and at common law, an attorney’s fee would not have been recoverable.
Section 59.46, Florida Statutes (1985), provides:
In the absence of an expressed contrary intent, any provision of a statute or of a contract entered into after October 1, 1977, providing for the payment of attorney’s fees to the prevailing party shall be construed to include the payment of attorney’s fees to the prevailing party on appeal.
There is no language in the note in question which contains the mutuality of relief which the statute addresses. The instrument employs only the customary unilateral language in favor of the holder or payee.
Appellate attorney’s fees are denied.
STONE, J., concurs.
WALDEN, J., dissents without opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Stankee Dev. Corp., N.V. v. Citicorp Savings OF Florida, 526 So. 2d 90 (Fla. 4th DCA 1987)…ellate attorney’s fees claimed under a note provision that lacked the language of mutuality of relief we thought to be implicitly required, to activate section 59.46, Florida Statutes (1985). Palm Beach Management Corporation v. DeWoody and Company, 497 So. 2d 1298 (Fla. 4th DCA 1986). The statutory section construes as including appellate attorney’s fees a provision of a statute or contract that provides for payment of attorney’s fees to the prevailing party, absent an expressed contrary intent. In the rece…