       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

           DOMENIC GROSSO a/k/a DOMENIC L. GROSSO,
                          Appellant,

                                     v.

      HSBC BANK USA, N.A., AS TRUSTEE ON BEHALF OF ACE
                     SECURITIES CORP.,
                            Appellee.

                              No. 4D17-2874

                               [May 8, 2019]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Susan R. Lubitz, Senior Judge; L.T. Case No. 50-2012-CA-
005882-XXXX-MB.

  Michael Vater, Kendrick Almaguer, and Peter Ticktin of The Ticktin Law
Group, PLLC, Deerfield Beach, for appellant.

  Kimberly S. Mello and Joseph H. Picone of Greenberg Traurig, P.A.,
Tampa, for appellee.

                      ON MOTION FOR REHEARING
PER CURIAM.

   We deny the bank’s motion for rehearing, but withdraw our previously
issued opinion and substitute the following in its place.

    The homeowner appeals an order denying his motion for attorney’s fees
following the bank’s voluntary dismissal of its foreclosure action. We
reverse because the voluntary dismissal rendered the homeowner the
prevailing party for purposes of attorney’s fees.

    HSBC Bank filed a foreclosure complaint against the homeowner,
alleging it was the owner and holder of the note and mortgage. HSBC
further alleged it was entitled to attorney’s fees under the contract. A copy
of the note attached to the complaint listed DB Home Lending LLC as the
lender and the homeowner as the borrower. The note contained a specific
endorsement by DB Home Lending to HSBC.
    The homeowner filed an answer and affirmative defenses. In his
affirmative defenses, the homeowner stated that the bank lacked standing,
the bank did not have legal rights to enforce the note and mortgage, and
the endorsement on the note was not valid and authentic. The homeowner
also requested attorney’s fees.

    A year after filing the complaint, HSBC voluntarily dismissed the case
without prejudice. The homeowner moved for prevailing party attorney’s
fees under the contract. Specifically, the homeowner alleged in the motion
for attorney’s fees that “[t]he Mortgage that was the subject matter of this
lawsuit provided for costs and expenses if the Note holder was to enforce
the Note” and that section 57.105(7), Florida Statutes, made this provision
applicable to the homeowner. HSBC opposed the motion, arguing that the
homeowner’s lack of standing defense precluded him from recovering fees.
After a hearing, the trial court denied the homeowner’s motion, finding
that he failed to prove that he and HSBC were parties to the contract.

   A trial court’s determination of whether a party is entitled to attorney’s
fees based on a fee provision in the mortgage is reviewed de novo. Bank
of N.Y. Mellon Tr. Co., N.A. v. Fitzgerald, 215 So. 3d 116, 118 (Fla. 3d DCA
2017). Section 57.105(7), Florida Statutes, operates to make a unilateral
attorney’s fees provision in a mortgage contract reciprocal. In order for a
prevailing party to avail itself of section 57.105(7), both the movant and
the opponent must be parties to the contract containing the fee provision.
Madl v. Wells Fargo Bank, N.A., 244 So. 3d 1134, 1138 (Fla. 5th DCA
2017).

   In denying the motion for fees, the trial court relied on Florida
Community Bank, N.A. v. Red Road Residential, LLC, 197 So. 3d 1112 (Fla.
3d DCA 2016). In Red Road Residential, the borrower maintained
throughout the litigation, including in sworn discovery, that she never
signed the mortgage. Id. at 1114. Rather than litigating its claim against
the borrower, the bank ultimately dismissed her from the lawsuit with
prejudice. Id. Unlike Red Road Residential, the instant case did not
involve any sworn discovery and the dismissal was without prejudice.

   We find instructive Rodriguez v. Wilmington Savings Fund Society, FSB
as Trustee for Stanwich Mortgage Loan Trust A, No. 4D18-310, 2018 WL
6528491 (Fla. 4th DCA Dec. 12, 2018). In that case, a borrower was found
to be entitled to prevailing party fees after the bank’s voluntary dismissal
even though she had challenged the bank’s standing throughout the
lawsuit. This court found that “the parties never litigated the merits of
[the bank’s] standing below, and the trial court never made a finding that
the Borrower was not a party to the note or mortgage.” Id. at *2. Because

                                     2
the bank voluntarily dismissed the action without the trial court resolving
the standing issue on the merits, the borrower was entitled to fees. Id.
See also Wells Fargo Bank, N.A. v. Elkind, 254 So. 3d 1153, 1154 (Fla. 4th
DCA 2018) (finding borrower who raised lack of standing as affirmative
defense was entitled to prevailing party attorney’s fees following the bank’s
voluntary dismissal because the parties never litigated standing and “the
trial court never made a finding that the bank or the borrower were not
parties to the contract”); Harris v. Bank of N.Y. Mellon, No. 2D17-2555,
2018 WL 6816177, at *4 (Fla. 2d DCA Dec. 28, 2018) (“[P]roof of standing
is not required to establish a contractual relationship between the
parties.”).

   In this case, HSBC voluntarily dismissed its complaint, thus rendering
the homeowner the prevailing party for purposes of attorney’s fees.
Notably, the trial court never made a judicial determination that HSBC or
the homeowner was not a party to the contract. Additionally, HSBC
maintained in its complaint a right to enforce the contract. Significantly,
the copy of the note attached to the complaint contained a specific
endorsement by the original lender to HSBC and listed the homeowner as
the borrower. This should be sufficient record evidence to demonstrate
that HSBC and the homeowner were parties to the underlying contract so
as to justify attorney’s fees pursuant to section 57.105(7). See Mihalyi v.
LaSalle Bank, N.A., 162 So. 3d 113, 115 (Fla. 4th DCA 2014) (implying
that an evidentiary hearing is required for determining the amount of fees,
not for determining entitlement to fees); Hensley v. Eckerhart, 461 U.S.
424, 437 (1983) (“A request for attorney’s fees should not result in a second
major litigation.”).

    The cases the dissent relies on are distinguishable, as none involve a
voluntary dismissal without prejudice like the instant case. The dissent
attempts to distinguish Rodriguez and Elkind by stating that those cases
dealt with judicial estoppel or prevailing parties, and not with the burden
for attorney’s fees. But cases with the same facts should get the same
result. A voluntary dismissal, without a judicial determination, should
allow reliance on the reciprocal attorney’s fees provision of section
57.105(7).

   Based on the foregoing authority, the homeowner was entitled to
prevailing party attorney’s fees. We reverse and remand for the trial court
to grant attorney’s fees and determine the reasonableness of the amount
sought.

   Reversed and remanded with instructions.


                                     3
LEVINE and FORST, JJ., concur.
CONNER, J., dissents with opinion.

CONNER, J., dissenting.

    I respectfully dissent for two reasons: (1) the trial court properly
determined that no evidence was presented by the homeowner
establishing the homeowner and HSBC were parties to a contract with a
fee provision; and (2) the two cases from this District primarily relied upon
by the majority are inapplicable to the specific argument made by HSBC
in the trial court, which the trial court found to be dispositive.

    Our recent opinions in Rodriguez v. Wilmington Savings Fund Society,
FSB as Trustee for Stanwich Mortgage Loan Trust A, No. 4D18-310, 2018
WL 6528491 (Fla. 4th DCA Dec. 12, 2018) and Wells Fargo Bank, N.A. v.
Elkind, 254 So. 3d 1153 (Fla. 4th DCA 2018), are inapposite because those
opinions address issues concerning determination of a prevailing party
and judicial estoppel, but they do not address the specific argument raised
in the trial court by HSBC as to who has the burden of proof regarding a
contractual relationship.

    I respectfully submit the case law on the issue of attorney’s fees after a
voluntary dismissal is confusing. In part, this is because appellate courts
have frequently failed to articulate with precision the distinction in law
between who is a “prevailing party” in litigation and who is a “party” to a
contract. Moreover, standing, in the context of foreclosures, can be
confusing because there are two phases of standing (at the time suit is
filed and at the time of trial), which can be pertinent to determining who
prevails on a legal issue. Additionally, the case law frequently fails to
emphasize that promissory notes are a special specie of contracts,
involving a special set of legal principles. For example, a person who does
not properly obtain ownership of a blank indorsed note can enforce it
because he or she is in possession of it. See § 673.3011, Fla. Stat. (2018).
Presumably, enforcement of the note with an attorney fee provision allows
such possessor to also receive attorney’s fees. At first blush, it seems
implausible to say a person who is not in the chain of ownership can be
considered in privity with the maker of the note, however, simple
possession of contract (the blank indorsed note) provides the privity, even
though there is no meeting of the minds. I also submit that much of the
confusion stems from a failure to properly analyze and apply legal
principles regarding judicial estoppel.

   Our case law regarding entitlement to attorney’s fees after a voluntary
dismissal has properly discerned that in terms of analysis, there is a


                                      4
difference between cases where the trial court has made evidentiary
determinations regarding standing and cases where such evidentiary
determinations have not been made. See Rodriguez, 2018 WL 6528491 at
*1; Elkind, 254 So. 3d at 1154. However, trial judges are frequently led
down the wrong path by attorneys who fail to recognize the difference
between who is the prevailing party in litigation and who has the burden
of proof for entitlement to fees. More importantly, if a party to a suit seeks
attorney’s fees pursuant to a contract clause, but is not in a contractual
relationship with the opposing party in the suit from whom fees are
sought, it is improper to award attorney’s fees based on the contract
provision. Novastar Mortg., Inc. v. Strassburger, 855 So. 2d 130, 131 (Fla.
4th DCA 2003) (“Because the Strassburgers were not parties to the
mortgage, they were not entitled to recover attorney’s fees under the
mortgage.”); see also Gibson v. Courtois, 539 So. 2d 459, 460 (Fla. 1989)
(determining that the fact that no contract was formed was dispositive on
the issue of fees based on a contract provision); Fitzgerald, 215 So. 3d at
121 (“Because no contract existed between the parties, the trial court erred
in awarding Fitzgerald attorney’s fees pursuant to section 57.105(7)[.]”);
HFC Collection Ctr., Inc. v. Alexander, 190 So. 3d 1114, 1117 (Fla. 5th DCA
2016) (holding that a party cannot employ section 57.105(7) as a basis for
fees after proving the opposing party never became a party to the contract).

   In granting rehearing and denying fees to the homeowner in this case,
the trial court relied upon Judge Scales’s insightful opinion in Florida
Community Bank, N.A. v. Red Road Residential, LLC, 197 So. 3d 1112 (Fla.
3d DCA 2016). There, the bank filed a voluntary dismissal after one of the
defendants, Rios, filed a motion for fees as a sanction under section
57.105(1), Florida Statutes. Id. at 1114. After the voluntary dismissal,
Rios moved for fees under both section 57.105(1) and section 57.105(7)
(the contract reciprocity fee provision). Id. The trial court denied fees
under section 57.105(1), but granted fees under section 57.105(7). Id.
Notably, Judge Scales observed that “[a]s section 57.105(7) plainly
requires, to gain the benefit of its substantive entitlement to prevailing
party fees, the party seeking the benefit of reciprocity must be a party to the
contract containing the fee provision.” Id. at 1115 (emphasis added). After
making the observation, the opinion goes on to explain:

      Ada Rios does not appear to contest this proposition. Rather,
      in oral argument, she sought to distinguish the reasoning in
      Novastar[ v. Strassburger] by arguing that, in Novastar and
      other similar cases, the trial court actually adjudicated that
      the party seeking fees was not a party to the contract. Ada
      Rios points out that, in this case, the Bank voluntarily
      dismissed its lawsuit before such an adjudication occurred.

                                      5
      Ada Rios argues that, as the prevailing party (by virtue of the
      Bank’s dismissal), she should be the beneficiary of the fact
      that her status as a mortgagor specifically was not
      adjudicated.

      Not surprisingly, the Bank takes the contrary position in the
      form of this syllogism: because Ada Rios’s principal defense
      was that she was not a party to the mortgage, and because
      Ada prevailed, therefore, for the purposes of section 57.105(7),
      Ada Rios was not a party to the mortgage.

      Regarding whether Ada Rios was a party to the mortgage, we
      note that both the Bank and Ada Rios take positions opposite
      to the positions they took before the Bank’s voluntary
      dismissal of Ada Rios from the lawsuit. While both the Bank
      and Ada Rios suggest that the other party should be estopped
      from making its respective argument about whether Ada was
      a party to the mortgage, we view the case not from the parties’
      estoppel perspectives, but from the perspective of burden:
      which party had the threshold burden of establishing whether
      Ada Rios was a party to the mortgage?

      In our view, in order to avail herself of section 57.105(7)’s
      reciprocity, Ada Rios, as the prevailing party and movant
      seeking fees under the mortgage’s fee provision, had the
      threshold burden to plead and establish that she was a party
      to the mortgage containing the fee provision. Ada Rios’s
      status as the lawsuit’s prevailing party does not equate to Ada
      Rios being a mortgagor under the mortgage so as to trigger
      section 57.105(7)’s reciprocity provision.

Id. at 1115-16 (emphases added) (footnote omitted) (citations omitted).
The Third District reversed the order awarding fees and remanded the case
for further proceedings because “[t]he burden lies with the prevailing party
to establish, as a threshold matter, her status as a party to the contract.”
Id. at 1116. I agree with the Third District that in litigation seeking to
enforce a contract (which includes foreclosure cases), establishing one
party as the prevailing party in the suit does not necessarily establish that
the prevailing party is also in a contractual relationship with the opposing
party. See id.

   In the trial court below, HSBC consistently argued in opposition to the
homeowner’s motion for fees, as well as in support of its motion for
rehearing, that in order to prove entitlement, the homeowner had the

                                     6
evidentiary burden of proving not only that the homeowner was the
prevailing party, but also that the homeowner and HSBC were in a
contractual relationship while the foreclosure suit was being litigated. The
trial court granted fees to the homeowner, after initially determining that
Red Road Residential was factually distinguishable from this case. HSBC
moved for rehearing contending the trial court erred in its interpretation
and application of Red Road Residential. After entertaining argument on
the motion for rehearing, the trial court granted rehearing and specifically
set a new evidentiary hearing on the fee motion. At the conclusion of the
new hearing on the fee motion, the trial court found that

      the Defendant [(the homeowner)] failed to prove that the
      Plaintiff [(HSBC)] and Defendant were parties to the note and
      mortgage. The Defendant’s Answer denied paragraphs 3, 4, &
      5 of Plaintiff’s Complaint and Defendant’s Affirmative Defense
      asserted the Defendant [sic] did not have standing to file the
      Complaint. These assertions have not been overcome by
      evidence to show the Plaintiff and Defendants were parties to
      the Contract.

   My review of the transcript of the hearing confirms that the homeowner
presented no evidence that he was in a contractual relationship with
HSBC. Thus, it appears the trial court’s finding was correct that there was
no competent substantial evidence to support a determination that the
homeowner and HSBC were parties to a contract which contained a
provision of a fee award. Therefore, I contend that we have no legal basis
to reverse the trial court. I disagree with the majority’s conclusion that
the copy of the note attached to the complaint provided “sufficient record
evidence to demonstrate HSBC and the homeowner were parties to the
underlying contract so as to justify attorney’s fees pursuant to section
57.105(7).” When the issue of entitlement is uncontested, it is not
uncommon for stipulations, admissions in pleadings, and affidavits to be
used. When entitlement is contested, evidentiary hearings are required,
with proof by testimony, exhibits, or both, unless summary judgment
proceedings are properly invoked.

   In addition to arguing the homeowner was not entitled to attorney’s fees
for failure to carry his burden and provide evidence of a contractual
relationship, HSBC made arguments below and on appeal asserting the
homeowner could not make a factual showing of entitlement based on
principles of judicial estoppel. Such arguments were incorrect and
distracting. Trial advocates are to be reminded:




                                     7
      In judicial proceedings, a party simply is not estopped from
      asserting a later inconsistent position (if that it can be called),
      unless the party’s initial position was successfully
      maintained.

Leitman v. Boone, 439 So. 2d 318, 322 (Fla. 3d DCA 1983).

   I emphasize that judicial estoppel arguments in these fee cases are
distracting, when the argument is inappropriate, for a reason. I said above
that Elkind was inapposite for the disposition of this case. I was one of
the panel members deciding Elkind. In going back and reviewing our
analysis and the briefs submitted in that case, I now realize that a
somewhat similar argument about the burden of proof in fee cases was
made in Elkind, but the clarity of the argument was lost by infusing it with
arguments about judicial estoppel and not as a stand-alone argument.

   For the reasons I have discussed, I would affirm the trial court.

                            *         *          *




                                      8
