       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                       WELLS FARGO BANK, N.A.,
                              Appellant,

                                     v.

     JOSEPH B. ELKIND, a/k/a JOSEPH ELKIND, TIMOTHY M.
   DONOVAN, BADABRA, LLC, and UNITED STATES OF AMERICA,
               DEPARTMENT OF THE TREASURY,
                           Appellee.

                              No. 4D17-1213

                           [September 5, 2018]

  Appeal and cross-appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Joel T. Lazarus, Judge; L.T. Case No.
CACE 15-018182.

  Michael K. Winston and Dean A. Morande of Carlton Fields Jorden
Burt, P.A., West Palm Beach, for appellant.

  Bruce K. Herman of The Herman Law Group, P.A. Fort Lauderdale, for
appellee, Joseph B. Elkind a/k/a Joseph Elkind.

                      ON MOTION FOR REHEARING

PER CURIAM.

   We grant appellant’s motion for rehearing, withdraw our opinion dated
July 18, 2018, and substitute the following.

   The bank filed a verified complaint to foreclose a mortgage against the
borrower, who raised several affirmative defenses, including lack of
standing. Thereafter, the bank voluntarily dismissed the complaint
without prejudice, but gave no reason for the dismissal.

   The borrower moved for prevailing party attorney’s fees and costs
pursuant to the loan documents and section 57.105, Florida Statutes. The
bank argued in opposition that the borrower was precluded from
recovering attorney’s fees based on the note or mortgage after taking the
position that the bank lacked standing. Following a hearing, the trial court
entered a final order awarding the borrower $35,880 in attorney’s fees and
costs.

   On appeal, the bank contends that the trial court erred by awarding
prevailing party attorney’s fees and costs to the borrower because the
borrower failed to demonstrate that both he and the bank were entitled to
enforce the note and mortgage, emphasizing that the borrower argued to
the contrary below by raising the affirmative defense that the bank lacked
standing.

   The bank relies on Nationstar Mortgage LLC v. Glass, 219 So. 3d 896,
899 (Fla. 4th DCA 2017), which held that “[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.”

   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. The bank’s voluntary dismissal took
this case out of Glass. Standing was never litigated below and the trial
court never made a finding that the bank or the borrower were not parties
to the contract. Because the borrower did not prevail on his argument
that dismissal was required because the bank lacked standing to sue on
the contract, he is not precluded from recovering fees based on a provision
in the same contract. Glass, 219 So. 3d at 899. Accordingly, we affirm
the order awarding fees. We leave for another day the issue of whether the
borrower’s victory on the attorney’s fee issue here would collaterally estop
him from raising standing in a future foreclosure on the same mortgage
and note.

GROSS, CONNER and KLINGENSMITH, JJ., concur.

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