       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          KARLA RODRIGUEZ,
                              Appellant,

                                    v.

WILMINGTON SAVINGS FUND SOCIETY, FSB, As Trustee for Stanwich
                  Mortgage Loan Trust A,
                        Appellee.

                              No. 4D18-310

                          [December 12, 2018]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Joel T. Lazarus, Judge; L.T. Case No. CACE 14009770.

  Charmaine J. Comprosky of The Law Office of Charmaine J.
Comprosky, PA, Pompano Beach, for appellant.

   Christian J. Gendreau of Storey Law Group, PA, Orlando, for appellee.

KLINGENSMITH, J.

   2010-3 SFR Venture, LLC (“Venture”) sought to foreclose on a mortgage
entered into by Karla Rodriguez (“Borrower”). After a voluntary dismissal
by a substituted plaintiff, Borrower filed a motion for prevailing party
attorney’s fees. Her motion was denied due to the fact that she challenged
Venture’s standing throughout the lawsuit. Borrower claims that the trial
court erred in denying her motion for attorney’s fees because the issue of
standing was never resolved by the court on the merits. We agree.

   In response to Venture’s foreclosure complaint, Borrower asserted
several affirmative defenses, including lack of standing. Venture later
moved to substitute Wilmington Savings Fund (“WSF”) as the plaintiff.
After the trial court granted substitution, WSF filed a notice of voluntary
dismissal. In response, Borrower moved for, and was granted, entitlement
to prevailing party attorney’s fees and costs pursuant to the loan
documents and section 57.105(7), Florida Statutes (2008).

   WSF moved for reconsideration. At the hearing on the motion, WSF
argued Borrower was precluded from recovering attorney’s fees and costs
based on the note and mortgage 1 after taking the position that Venture—
the previous plaintiff—lacked standing to sue under the same note and
mortgage. The trial court entered an order granting WSF’s motion for
reconsideration, struck the previous order granting Borrower’s entitlement
to attorney’s fees and costs, and entered an order denying Borrower’s
motion. This appeal followed.

   “Because it concerns a question of law, we review de novo a trial court’s
final judgment determining entitlement to attorney’s fees based on a fee
provision in the mortgage and the application of section 57.105(7).” Bank
of New York Mellon Tr. Co., N.A. v. Fitzgerald, 215 So. 3d 116, 118 (Fla. 3d
DCA 2017).

    On appeal, Borrower claims that despite raising the affirmative defense
and arguing that Venture and WSF lacked standing below, both she and
WSF were equally entitled to enforce the note and mortgage. Borrower
alleges that she became the prevailing party for purposes of an award of
prevailing party fees under section 57.105(7) when WSF voluntarily
dismissed the action.

   In opposition, WSF relies on Nationstar Mortg. LLC v. Glass, 219 So. 3d
896, 899 (Fla. 4th DCA 2017), review granted, Glass v. Nationstar Mortg.,
LLC, 2018 WL 2069328 (Fla. Feb. 13, 2018), which held, “A party that
prevails on its argument that dismissal is required because the plaintiff
lacked standing to sue upon the contract cannot recover fees based upon
a provision in that same contract.”

   “In general, when a plaintiff voluntarily dismisses an action, the
defendant is the prevailing party.” Thornber v. City of Walton Beach, 568
So. 2d 914, 919 (Fla. 1990). “However, there is a difference between
prevailing on the merits on a standing issue and an undifferentiated
voluntary dismissal of a lawsuit prior to any merits determination.” Wells
Fargo Bank, N.A. v. Elkind, 2018 WL 4212149 at *1 (Fla. 4th DCA, Sept.
5, 2018).

    WSF contends that the trial court resolved—on the merits—the issue of
standing after Borrower filed requests for admissions seeking that Venture
admit or otherwise respond to two requests related to standing. Venture
failed to timely respond to the request for admissions; thus, they were

1 Section 57.105(7) “transforms any such unilateral contractual attorney’s fee
provision into a reciprocal obligation whereby the prevailing party is entitled to
recover reasonable fees and costs.” HFC Collection Ctr., Inc. v. Alexander, 190 So.
3d 1114, 1116 (Fla. 5th DCA 2016).

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deemed technically admitted. See Fla. R. Civ. P. 1.370(a). Such
admissions are “conclusively established unless the court on motion
permits withdrawal or amendment of the admission.” Fla. R. Civ. P.
1.370(b); see Poag v. Nationstar Mortg., LLC, 198 So. 3d 1002, 1004 (Fla.
1st DCA 2018). Here, the court denied Venture’s request to withdraw the
technical admissions; as such, those matters were conclusively
established as facts. See id.

   Our courts have held that such “conclusively established” admissions
do not equate to determinations “on the merits.” See Wells Fargo Bank,
N.A. v. Voorhees, 194 So. 3d 448, 451 (Fla. 2d DCA 2016) (there is a “strong
preference that genuinely disputed claims be decided upon their merits
rather than technical rules of default.” (quoting PennyMac Corp. v. Labeau,
180 So. 3d 1216, 1219 (Fla. 3d DCA 2015))).

    WSF’s voluntary dismissal rendered Glass inapplicable because the
parties never litigated the merits of Venture’s or WSF’s standing below,
and the trial court never made a finding that the Borrower was not a party
to the note or mortgage. See Elkind, 2018 WL 4212149 at *1. The trial
court also never made an explicit finding as to which of the issues raised
by Borrower’s affirmative defenses or requests for admissions were
dispositive. Until the trial court resolves a given issue on the merits,
litigants are permitted to take alternative, even conflicting, positions on
disputed issues. See Fla. R. Civ. P. 1.110(g). Consequently, the fact that
certain unanswered admissions became established facts in the
underlying suit does not equate to a legal determination regarding
Venture’s standing to bring this foreclosure action or WSF’s ability to
maintain it. See Voorhees, 194 So. 3d at 451. Because WSF voluntarily
dismissed the action, Borrower did not prevail on the merits in her
argument that the lender lacked standing to sue on the contract. See
Elkind, 2018 WL 4212149 at *1.

   Therefore, Borrower is not precluded from recovering fees based on a
provision in the contract and section 57.105(7). Cf. Glass, 219 So. 3d at
899. Accordingly, we reverse the order denying Borrower’s motion for
attorney’s fees, remand for the trial court to grant the award of attorney’s
fees to Borrower, and order the trial court to determine the reasonableness
of the amounts sought. As we did in Elkind, we decline to address the
issue of whether Borrower’s victory on the attorney’s fees issue here means
she is collaterally estopped from raising standing in a future foreclosure
brought on the same mortgage and note.

   Reversed and remanded.


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MAY and LEVINE JJ., concur.

                          *      *        *

  Not final until disposition of timely filed motion for rehearing.




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