Maw v. Abinales

• Decision Date: 20 February 1985
• Docket Number: No. 84-1390,84-1390
• Citation: Maw v. Abinales, 463 So.2d 1245, 10 Fla. L. Weekly 492 (Fla. App. 1985)
• Parties: 10 Fla. L. Weekly 492 Marcella M. MAW, Appellant/Cross-Appellee, v. Benjamin V. ABINALES and Pacita T. Abinales, Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

Page 1245

463 So.2d 1245

10 Fla. L. Weekly 492

Marcella M. MAW, Appellant/Cross-Appellee, v. Benjamin V. ABINALES and Pacita T. Abinales, Appellees/Cross-Appellants.

No. 84-1390.

District Court of Appeal of Florida Second District.

Feb. 20, 1985.

Frederick W. Vollrath, Tampa, for appellant/cross-appellee.

Ronald P. Teevan of Strohauer & Teevan, P.A., Clearwater, for appellees/cross-appellants.

OTT, Acting Chief Judge.

In this appeal and cross-appeal, we are asked to review the lower court's denial of attorney's fees to both parties and the grant of costs to appellees in a mortgage foreclosure action. For the reasons stated below, we affirm the denial of attorney's fees to the appellees; reverse and remand the denial of attorney's fees and costs to the appellant; and reverse the grant of costs to the appellees.

The appellees executed and delivered a mortgage and promissory note to the appellant. The mortgage provided, among other things, that the appellees would keep the buildings on the property in proper repair. The mortgage further provided:

Should any of the above covenants be broken, then said note and all moneys secured hereby shall without demand, if the mortgagee so elects, at once become due and payable and the mortgage be foreclosed, and all costs and expenses of collection of said moneys by foreclosure or otherwise, including solicitor's fees shall be paid by the mortgagor, and the same hereby secured.

Appellant learned that two buildings on the property had been demolished. She thereafter filed a complaint in foreclosure alleging that the appellees had defaulted under the mortgage and note by failing to keep the buildings on the property in proper repair.

Upon being deposed, appellant admitted that she only brought the foreclosure action because she needed money. She continued to receive and cash the monthly mortgage checks after she discovered the demolished buildings and before instituting foreclosure proceedings. She further continued to receive and cash the monthly payment checks after the foreclosure proceedings were brought. She also stated that she never at any time felt any the less secure under the mortgage with the buildings gone. However, since the appellees had violated the contract and because she needed money, she brought this action.

The basic defense raised by the appellees was that the security interest was in no way jeopardized by the removal of the buildings. The value of the property, without the buildings, was conceded to be approximately $129,000. The outstanding balance of the mortgage was approximately $69,000.

Both parties filed motions for summary judgment. After a hearing, the trial court denied appellant's motion, granted appellees' motion, and entered partial summary judgment in favor of the appellees. The trial court found that the equities under all the facts would not support foreclosure. Both parties filed motions to tax costs and for an award of attorney's fees; appellant, because of the note and mortgage provisions, and appellee, on the basis of a frivolous lawsuit under section 57.105, Florida Statutes (1983). The lower court reserved jurisdiction to consider these motions.

In due course, the lower court entered a final judgment denying attorney's fees to both parties; construing the mortgage as at least requiring recovery of a money judgment by the appellant to support an award of fees and costs, and finding that the lawsuit was not completely lacking justiciable issues of law or fact. However, the lower court awarded costs to the appellees because they were the "prevailing parties."

Both parties have appealed the lower court's denial of attorney's fees, and appellant appealed the grant of costs to the appellees. Appellant has not challenged the denial of foreclosure.

We find our prior decision in Schechtman v. Grobbel, 226 So.2d 1 (Fla. 2d DCA 1969), to be controlling. In that case, the mortgage contained a "rider" providing that escrow tax money payments, along with the monthly mortgage payments, be made to the mortgagees. After a time, the mortgagors paid only the monthly mortgage installments to the mortgagees, and paid the escrow tax monies to a special tax account which they opened in a bank. The trial court, in denying the foreclosure, found: the "rider" to be ambiguous; that at no time were the monthly mortgage payments in default; and that the security was never impaired. The trial court also denied attorney's fees to the mortgagees because the foreclosure was denied. Id. at 2-3.

On appeal, we affirmed the denial of foreclosure, but...