         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-3112
                 _____________________________

EUGENE HAM, III,

    Appellant,

    v.

PORTFOLIO RECOVERY
ASSOCIATES, LLC,

    Appellee.


                 _____________________________

                         No. 1D17-3113
                 _____________________________

LAURA FOXHALL,

    Appellant,

    v.

PORTFOLIO RECOVERY
ASSOCIATES, LLC,

    Appellee.

                 _____________________________


On appeal from the County Court for Escambia County.
Patricia A. Kinsey, Judge.
                        November 30, 2018


PER CURIAM.

     In these consolidated cases, Eugene Ham and Laura Foxhall
challenge final orders denying their claims for prevailing party
attorney’s fees in actions brought by Portfolio Recovery Associates,
LLC, to recover unpaid credit card debt under an “account stated”
theory of liability. We accepted jurisdiction of the orders certified
by the county court to be of great public importance. For the
reasons that follow, we affirm.

                            Background

     Portfolio, as assignee of GE Capital Retail Bank (“Bank”) and
purchaser of certain consumer debts, filed separate actions against
Mr. Ham and Ms. Foxhall in the small claims division of the
Escambia County Court. In each case, Portfolio filed a one-count
complaint for common law account stated to collect the balance
allegedly owed on a credit card account originating with the Bank.
Portfolio alleged that each debtor had a revolving credit card
account with the Bank, the debtor used the account to make
purchases and/or cash advances resulting in an unpaid balance,
the Bank provided monthly credit card account statements to the
debtor for the amounts due, and the debtor did not object to the
account statement. The total amount in controversy for both cases
was $4,754.43. 1 Portfolio did not attach to the complaint or
mention any written credit card contracts between the Bank and
the debtor (“credit contract”), nor did Portfolio plead an
entitlement to attorney’s fees if successful in the actions.

     In their answers, the debtors denied the material allegations
of the complaints and asserted several affirmative defenses. They
also requested reciprocal attorney’s fees pursuant to section
57.105(7), Florida Statutes.



    1 Portfolio sought recovery of $819.74 from Mr. Ham and
$3,934.69 from Ms. Foxhall.

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     Both sides moved for summary disposition with competing
affidavits. Portfolio submitted affidavits from its records custodian
with attached credit card statements and other documents. The
debtors submitted affidavits in which they disputed the balances
claimed by Portfolio and denied agreeing with Portfolio to any
account balances.

     The county court proceeded to trial in both cases. Finding that
Portfolio failed to offer any admissible evidence to support the
complaints, the court entered final judgments in favor of the
debtors and reserved jurisdiction to address attorney’s fees and
costs.

     After entry of the final judgments, the debtors filed motions
for reciprocal attorney’s fees pursuant to section 57.105(7). The
motions referenced the provisions of the respective credit contracts
providing for the payment of attorney’s fees and costs for collection
of the account in the event of default. Portfolio opposed the
requests for attorney’s fees on several grounds, including that the
credit contracts did not apply since its complaints were based on
the theory of “account stated,” not breach of contract.

     The trial court initially agreed with the debtors regarding
their entitlement to attorney’s fees, concluding that because there
would be no consumer debt but for the credit contracts, the
extension of credit and ultimate collection of the debts are
inextricably intertwined and cannot be separated. After an
evidentiary hearing, the court ordered Portfolio to pay attorney’s
fees and costs of $51,046.50 in Mr. Ham’s case and $53,570.00 in
Ms. Foxhall’s case.

     Portfolio moved for a new trial with respect to the debtors’
entitlement to attorney’s fees based on an intervening appellate
decision from the Escambia County Circuit Court, Portfolio
Recovery Associates, LLC v. Gruenwald, No. 2016 AP 000024 (Fla.
1st Cir. Ct. Apr. 21, 2017). 2 In Gruenwald, the First Circuit held

    2 The circuit court’s appellate decision in Gruenwald is
currently pending in this Court on certiorari review in Case No.
1D17-1914. Based on our review of the docket in that case, it
appears that the party’s name is correctly spelled “Grunewald.”

                                 3
that section 57.105(7) does not apply in a case in which a creditor
proceeds under an account stated cause of action independent of
any written credit card agreement the creditor has with a debtor.
Id. at *3-4. Citing Gruenwald as binding precedent, 3 the county
court granted the motions for new trial and reversed its judgments
for attorney’s fees and costs. Recognizing the conflicting judicial
decisions on the issue 4 and the significance of its ruling, the court

    3  Circuit court appellate decisions are binding on all county
courts within that circuit. Fieselman v. State, 566 So. 2d 768, 770
(Fla. 1990).
    4   Though this case is one of first impression in this Court,
several courts have previously ruled on this issue. The Second
District, in agreement with several circuit courts sitting in their
appellate capacity, recently held that section 57.105(7) provides for
attorney’s fees in an account stated action when the contract
includes a unilateral provision for attorney’s fees. See Bushnell v.
Portfolio Recovery Assocs., LLC, 43 Fla. L. Weekly D2144a (Fla. 2d
DCA Sept. 14, 2018) (“The credit card contract and the account
stated cause of action are . . . inextricably intertwined such that
the account stated cause of action is an action ‘with respect to the
contract’ under section 57.105(7).”); Portfolio Recovery Assocs.,
LLC, v. York, 25 Fla. L. Weekly Supp. 4a (Fla. 10th Cir. Ct. Mar.
16, 2017) (“[B]ut for the credit agreement there would not be credit
given in order to have a debt (Account Stated) in the first place.”);
Portfolio Recovery Assocs., LLC, v. Benjamin, 24 Fla. L. Weekly
Supp. 96a (Fla. 9th Cir. Ct. Apr. 18, 2016) (“[T]he lawsuit
encompassed the situation that the attorney’s fee provision
contemplated.”). However, several circuit courts, when confronted
by the same question, have held the opposite. See Portfolio
Recovery Assocs., LLC v. Gruenwald, 2016 AP 000024 (Fla. 1st Cir.
Ct. Apr. 21, 2017) (holding that an account stated cause of action
is “independent of the original credit contract” and not an action
“with respect to the contract” subject to section 57.105(7)); Balog
v. CACH, LLC, 24 Fla. L. Weekly Supp. 474a (Fla. 6th Cir. Ct.
Sept. 20, 2016) (“[I]f CACH had prevailed at the trial level, it would
not have been entitled to attorney’s fees; therefore, awarding
attorney’s fees under the reciprocity provision of section 57.105(7)
. . . would be contrary to legislative intent.”); Pujol v. Capital One
Bank (USA), 23 Fla. L. Weekly Supp. 517a (Fla. 15th Cir. Ct. Sept.
                                  4
certified the following question of great public importance to this
Court:

    IS AN “ACCOUNT STATED” CAUSE OF ACTION BROUGHT BY AN
    ASSIGNEE SEEKING TO COLLECT A CREDIT CARD DEBT
    ARISING FROM A WRITTEN CREDIT CARD AGREEMENT
    BETWEEN THE DEFENDANT DEBTOR AND THE ASSIGNOR,
    WHICH INCLUDES A UNILATERAL ATTORNEY’S FEE
    PROVISION, AN ACTION TO ENFORCE A CONTRACT, SUCH
    THAT THE PREVAILING PARTY IS ENTITLED TO AN AWARD OF
    ATTORNEY’S FEES UNDER §57.105(7), FLORIDA STATUTES,
    WHERE A PORTION OF THE DEBT INCLUDES LATE FEES AND
    FINANCE CHARGES ARISING OUT OF THAT WRITTEN
    AGREEMENT?

    We have jurisdiction pursuant to Florida Rules of Appellate
Procedure 9.030(b)(4)(A) and 9.160.

                              Analysis

     It is well settled that the prevailing party in litigation is not
entitled to recover attorney’s fees unless there is a statutory or
contractual basis for the award. Price v. Tyler, 890 So. 2d 246, 250
(Fla. 2004); see also State Farm Fire & Cas. Co. v. Palma, 629 So.
2d 830, 832 (Fla. 1993) (“This Court has followed the ‘American
Rule’ that attorney’s fees may be awarded by a court only when
authorized by statute or by agreement of the parties.”). In these
cases, the debtors sought attorney’s fees under the unilateral fee
provisions in their credit contracts, which they contend were made
reciprocal to them under section 57.105(7). Since resolution of this

21, 2015) (defining an account stated cause of action as “a
separately enforceable legal agreement”); Portfolio Recovery
Assocs., LLC v. Cordero, 23 Fla. L. Weekly Supp. 392b (Fla. 7th
Cir. Ct. July 23, 2015) (“[A]ttorneys’ fees were not recoverable
under Section 57.105(7) because Portfolio’s initial Complaint was
not based on a contract, even though there was an underlying
credit card agreement between the parties that did provide for the
recovery of fees.”).



                                  5
case rests on the interpretation of a statute, our review is de novo.
Lopez v. Hall, 233 So. 3d 451, 453 (Fla. 2018).

    Section 57.105(7) provides as follows:

    If a contract contains a provision allowing attorney’s fees
    to a party when he or she is required to take any action
    to enforce the contract, the court may also allow
    reasonable attorney’s fees to the other party when that
    party prevails in any action, whether as plaintiff or
    defendant, with respect to the contract.

“The purpose behind section 57.105(7) is to provide mutuality of
attorney’s fees as a remedy in contract cases. The statute is
designed to even the playing field, not expand it beyond the terms
of the agreement.” Fla. Hurricane Prot. & Awning, Inc. v. Pastina,
43 So. 3d 893, 895 (Fla. 4th DCA 2010) (citations and internal
quotation marks omitted). Thus, we must examine the nature of
Portfolio’s action against the debtors to determine whether the
attorney’s fees provision in the credit contracts was triggered.

     Portfolio elected to file a one-count complaint against each of
the debtors, seeking a balance owed from account statements
rendered to them as a result of unpaid credit card debt. Florida
courts have long recognized a cause of action for account stated,
which requires (1) an agreement between the parties as to the
amount owed, (2) an agreement that the amount owed was due,
and (3) an express or implicit promise to pay that amount. Everett
v. Webb Furniture Co., 124 So. 278, 279 (Fla. 1929). An action for
“account stated is based on ‘the agreement of the parties to pay the
amount due upon the accounting, and not any written
instrument.’” Farley v. Chase Bank, U.S.A., 37 So. 3d 936, 937 (4th
DCA 2010) (quoting Whittington v. Stanton, 58 So. 489, 491 (Fla.
1912)). Therefore, “it is not necessary, in order to support a count
upon account stated, to show the nature of the original debt, or to
prove the specific items constituting the account.” Id. (quoting
Daytona Bridge Co. v. Bond, 36 So. 445, 447 (Fla. 1904)). Simply
put, an action for account stated is based on a new promise to pay
that is separately enforceable without regard to any written
contract from which the debt may have originated.



                                 6
    Here, the essential allegations of Portfolio’s complaints
against the debtors are that (1) the debtors had business relations
with the Bank, (2) they obtained and used their respective credit
cards to make purchases resulting in unpaid balances, and (3) the
Bank rendered billing statements to them that were not objected
to within a reasonable time. Portfolio did not reference or attach
the credit contracts to the complaints, but instead attached
monthly billing statements.

     Because the action framed by Portfolio in these cases did not
rely on the credit contracts containing the unilateral fee provision,
we conclude that the debtors are not entitled to reciprocal fees
under section 57.105(7) by virtue of those contracts. To rule
otherwise would undermine Portfolio’s ability to choose its cause
of action. See Feinberg v. Naile, 561 So. 2d 1307, 1308 (Fla. 3d DCA
1990) (“A plaintiff is not guaranteed success in the choice of
remedies, only an opportunity to proceed under a theory which has
been pled.”). While Portfolio could have brought a claim for
enforcement of the credit contracts, it elected not to do so and
instead chose to pursue an account stated theory. As a result, had
Portfolio prevailed at the trial level, it would not have been entitled
to fees under the credit contracts either.

     In so holding, we have not overlooked the debtors’ argument
that the credit contracts are inextricably intertwined with the
account stated claims because the account stated claims would not
exist but for the credit contracts. Portfolio’s claim, they reason, is
therefore an action “with respect to the contract” under section
57.105(7). They rely primarily on the Florida Supreme Court’s
decision in Caufield v. Cantele, 837 So. 2d 371, 378 (Fla. 2002), for
support. Caufield involved a suit for fraudulent misrepresentation
related to a contract for the sale of a mobile home park. The
supreme court held that because the tort would not have occurred
but for the contract, “the existence of the contract and the
subsequent misrepresentation . . . [were] inextricably
intertwined.” Id. at 379. The court explained that the tort claim
arose from a party’s failure “to carry out its contractual duty to
reveal defects in the property,” and no claim would have existed
but for the contract. Id. Section 57.105(7) was not at issue because
the contract provided a mutual provision for attorney’s fees.


                                  7
     We distinguish this case from Caufield because the actions for
accounts stated were distinct from, and not inextricably
intertwined with, the credit contracts. Portfolio pled a cause of
action for account stated that was based not on the credit
contracts, but rather on a separately enforceable legal agreement
that arose from the debtors’ implied promises to pay on an
accounting rendered by the Bank. The tort claim in Caufield
required proving the existence and the breach of the contract. Id.
An account stated claim, on the other hand, exists independent of
the underlying contract, requires no evidence of breach of the
contract, and can exist in the absence of any contract at all.

     The facts of this case are more analogous to the facts in
Tylinski v. Klein Automotive, Inc., 90 So. 3d 870 (Fla. 3d DCA
2012). In that case, the Tylinskis entered into two contracts with
a car dealership for the purchase of a vehicle. One contract was for
the sale of the vehicle (“ROC”) and the other was for its financing
(“RISC”). Id. at 871. Only the RISC contained an attorney’s fees
provision. Id. at 872. The dealership sued for breach of the ROC,
and the Tylinskis prevailed. Id. The Tylinskis then moved for
attorney’s fees based on section 57.105(7), arguing that both
contracts were relevant because the sale would not have existed
but for the financing. Id. The Third District affirmed the denial of
fees, emphasizing the dealership’s decision to proceed only under
the ROC:

    We understand the Tylinskis’ argument that, but for the
    financial commitment reflected in the RISC, the
    dealership would not have allowed them to drive the car
    off the lot. Nevertheless, the dealership sought recovery
    under the ROC, not the RISC; there is no contractual
    avenue for recovering attorney’s fees based on the ROC,
    and the Tylinskis did not plead any statutory basis for
    recovering attorney’s fees other than § 57.105(7).

Id. at 872 (footnote omitted).

    The same reasoning applies here. Although the debtors would
not have credit card debt but for their contracts with the Bank,
Portfolio did not sue under the credit contracts. It instead
proceeded under an account stated cause of action that was not

                                 8
dependent on a contract. Accordingly, “there is no contractual
avenue for recovering attorney’s fees.” See id.

     Finally, the certified question suggests the argument that
because Portfolio sued for amounts that included previously
accrued late fees and interest, the credit contracts are inextricably
intertwined with Portfolio’s claims, even if framed as account
stated. This argument misstates the nature of a cause of action for
account stated. The elements of a claim for account stated required
Portfolio to show it had a business relationship with the debtor, it
sent a bill to the debtor, and the debtor expressed or implied
agreement to the amount owed. Whether all or part of the debt
arises from terms of a written agreement is irrelevant to the cause
of action. The claim stems from an agreement to pay an amount
due upon an accounting, not the individual items constituting the
account balance. See Farley, 37 So. 3d at 937 (“An itemized
statement of underlying charges is not required to establish a
claim for an account stated.”).

     For these reasons, we affirm the trial court’s order denying
attorney’s fees, answer the certified question in the negative, and
certify conflict with the Second District’s decision in Bushnell v.
Portfolio Recovery Associates, LLC, 43 Fla. L. Weekly D2144a (Fla.
2d DCA Sept. 14, 2018).

WETHERELL, RAY, and OSTERHAUS, JJ., concur.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Louis K. Rosenbloum of Louis K. Rosenbloum, P.A., Pensacola, and
Robert N. Heath, Jr., of Robert N. Heath, Jr., P.A., Pensacola, for
Appellants.

Robert E. Sickles and John P. Gaset of Broad and Cassel, LLP,
Tampa, for Appellee.

                                 9
Janet Varnell of Varnell & Warwick, P.A., Lady Lake; Lynn
Drysdale of Jacksonville Area Legal Aid, Inc., Jacksonville; Craig
E. Rothburd of Craig E. Rothburd, P.A., Tampa; and Arthur Rubin
of We Protect Consumers, P.A., Tampa, for National Association of
Consumer Advocates.




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