Narciso Vivot appeals an order denying his motion for attorney’s fees in
this foreclosure action that was filed by Bank of America’s predecessor in interest and
was dismissed for failure to prosecute. Because Vivot was the prevailing party in the
action, we reverse the order and remand for further proceedings.
On November 28, 2005, Vivot executed a promissory note and mortgage
in favor of Mackinac Savings Bank. The note and mortgage were subsequently
transferred to Countrywide Bank, and Bank of America is the successor by merger to
Countrywide Bank. On April 15, 2009, Countrywide filed a complaint to foreclose the
mortgage and to enforce the note based on Vivot’s alleged default. Later, the trial court
entered an order amending the plaintiff’s name to Bank of America.
Vivot filed an answer and affirmative defenses in which he requested an
award of attorney’s fees. On October 22, 2009, Bank of America filed a motion for
summary judgment of foreclosure. On June 2, 2011, Vivot filed a notice of lack of
record activity and on August 10, 2011, filed a motion to dismiss for lack of prosecution.
On December 12, 2011, the trial court rendered a final order dismissing the case for
lack of prosecution. Vivot filed a timely motion for attorney’s fees. He alleged that he
was entitled to fees as the prevailing party based on theprovisions of the note and
mortgage and section 57.105(7), Florida Statutes (2005). After a hearing the trial court
denied the motion, stating that there was no prevailing party in the case.
In Stout Jewelers, the trial court dismissed the landlord’s action against a
tenant for failure to prosecute but denied the tenant’s motion for prevailing party
attorney’s fees. 639 So. 2d at 83. This court noted that the dismissal was of the entire
action, including the tenant’s counterclaim. We concluded that, under those
circumstances, the tenant was the prevailing party for the purposes of an attorney’s fee
award because the defendant successfully obtained an involuntarily dismissal of the
case. Id.at 84; see also J.P. Morgan Mortg. Acquisition Corp. v. Golden, 98 So. 3d
220, 223 (Fla. 2d DCA 2012) (determining that the defendant was the prevailing party
when the foreclosure action was dismissed for failure to give proper notice of intent to foreclose and that the defendant was entitled to a fee award based on the provisions of
the note and mortgage even though the suit could be refiled); Norland v. Vills. at
Country Creek Master Ass’n, 851 So. 2d 770, 771 (Fla. 2d DCA 2003) (“The appellees
became the prevailing party when Norland’s claim was dismissed for failure to
prosecute.”).
Here, Vivot became the prevailing party when the foreclosure suit was dismissed for failure to prosecute. He gave notice of his claim for fees in his answer and timely filed his motion for attorney’s fees. Pursuant to section 57.105(7), the provisions of the note and mortgage permit Vivot to claim attorney’s fees as the prevailing party. See Raza, 100 So. 3d at 125.
Therefore, we reverse the order denying Vivot’s motion for attorney’s fees
and remand for further proceedings.
