• Contractual Basis for Claim of Attorney’s Fees May Be Introduced for the First Time Post-Judgment, Regardless of its Presentation Prejudgment.
  • January 7, 2014 | Author: Robert Garcia
  • Law Firm: Marshall Dennehey Warner Coleman & Goggin, P.C. - Orlando Office
  • Cunliffe v. Portfolio Recovery Associates, LLC, 20 Fla. L. Weekly. Supp. 1125 (Vol. 20, No. 29, 11/29/13)

    The appellant entered into a credit card account with CapitalOne Bank NA, which was subsequently sold to the appellee, Portfolio Recovery Associates, LLC (“Portfolio”). Portfolio subsequently filed a complaint for account stated, and the appellant filed his answer and affirmative defenses. At trial, the appellant moved for an involuntary dismissal, which was subsequently granted by the trial court. The appellant then filed a motion for attorney’s fees pursuant to § 57.105(7) (2011) Florida Statutes, which states that if a contract contains an attorney’s fee provision to one party, then the other party is entitled to attorneys fees if he or she prevails. Portfolio opposed the appellant’s request for attorney’s fees on the basis that the complaint was for account stated, not breach of contract, therefore § 57.105(7) was inapplicable and because the credit card contract was never admitted into evidence prior to dismissal of the case.

    On appeal, the 9th Judicial Court, acting in its appellate capacity, held that, although the complaint sounded in account stated and not breach of contract, the appellant was entitled to attorney’s fees per § 57.105(7) because the complaint made reference to a contract and the appellant’s affirmative defense stated that Portfolio was actually seeking damages for breach of contract. Therefore, the appellant was entitled to attorney’s fees pursuant to § 57.105(7). Finally, because a claim for attorney’s fees is ancillary and not substantive, a contract for attorney’s fees may be introduced for the first time post-judgment.

    Thus, parties to a lawsuit may be entitled to or subject to attorney’s fees, despite the cause of action asserted by the complainant in the underlying complaint.