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417 So. 2d 1095

Docket No. 82-1045.

Rudolph v. Unger

S.J. RUDOLPH, Trustee, Appellant, v. Thelma R. UNGER and Victoria Richard, Appellees.

District Court of Appeal of Florida

Decided August 10, 1982.

District Court of Appeal of Florida · decided 1982-08-10

Key passage — most relied on by later courts

““[A] civil action arising out of the provisions” of Section 701.04, the express predicate to the recovery of attorney’s fees, is necessarily confined to one brought by a person who has fully paid an outstanding mortgage, lien or judgment, but despite such payment is compelled to sue to obtain a satisfaction in order, in the usual case, to remove the cloud on the title caused by the previously recorded mortgage, lien or judgment.”

quoted by 2 later decisions, including Washington Mutual Bank, F.A. v. Shelton, 448 So. 2d 616 - ATLANTIC NAT. BK. OF FLA. v. Tworoger

Applies FL 701 § 701.04

Relies on 354 So. 2d 362 - Carlile v. GAME AND FRESH WATER FISH COM'N · 43 So. 2d 704 - McCord v. Smith · 123 So. 2d 745 - Lendsay v. Cotton

Good law ✅— No negative treatment on recordhow we know

Decided 1982-08-10

How this case has been cited

Cited by 5 later decisions — most recently January 2005

5 state decisions

30198219902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1*1096 Myers, Kaplan, Levinson, Kenin & Richards and Bruce J. Berman and William M. Grodnick, Miami, for appellant.

¶2Horton, Perse & Ginsberg and Mallory Horton, Miami, for appellees.

¶3Before HENDRY,[*] SCHWARTZ and BASKIN, JJ.

¶4PER CURIAM.

¶5We hold that the trial court properly denied attorney's fees to a mortgagor upon the release of a part of the real property included in a lien created by a 1974 mortgage. The mortgagor claimed fees pursuant to Section 701.04 of the Florida Statutes as amended in 1980.[1]

¶6First, the statute creating the right to recover fees was adopted after the execution of the contract and does not have retroactive effect. Tuggle v. Government Employees Insurance Company,220 So.2d 355 (Fla. 1969); McCord v. Smith,43 So.2d 704 (Fla. 1950); Stone v. Town of Mexico Beach,348 So.2d 40 (Fla. 1st DCA 1977). Secondly, a partial release of certain lands encumbered by mortgage is not a satisfaction. The statute is in derogation of the common law and should be strictly construed. Carlile v. Game & Fresh Water Fish Commission,354 So.2d 362 (Fla. 1977); Board of Regents of the State of Florida v. Coffey,378 So.2d 52 (Fla. 1st DCA 1979); Stone v. Town of Mexico Beach, supra; Lendsay v. Cotton,123 So.2d 745 (Fla. 3d DCA 1960).

¶7Attorney's fees are only recoverable under this statute when the lein created by the mortgage is "fully paid". Then a successful mortgagor who brings a legal proceeding is entitled to fees.

¶8Therefore the order under review is affirmed.

¶9Affirmed.

NOTES

¶10[*] Although Judge Hendry participated in the decision he did not hear oral argument.

¶11[1] 701.04 Cancellation of mortgages, liens, and judgments. Whenever the amount of money due on any mortgage, lien, or judgment shall be fully paid to the person or party entitled to the payment thereof, the mortgagee, creditor, or assignee, or the attorney of record in the case of a judgment, to whom such payment shall have been made, shall execute in writing an instrument acknowledging satisfaction of said mortgage, lien, or judgment and have the same acknowledged, or proven, and duly entered of record in the book provided by law for such purposes in the proper county. Within 60 days of the date of receipt of the full payment of the mortgage, lien, or judgment, the person required to acknowledge satisfaction of the mortgage, lien or judgment shall send or cause to be sent the recorded satisfaction to the person who has made the full payment. In the case of a civil action arising out of the provisions of this section, the prevailing party shall be entitled to attorney's fees and costs.

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