DEFENDANTS MOTION TO TAX ATTORNEYS FEES AND COSTS WITH INTEREST Defendant, Michael Steinbach, by and through the

undersigned attorney, and pursuant to F.S. Sections 57.105(7) and 57.041 moves the court for an order taxing attorneys fees and costs and interest thereon against Plaintiff, and for grounds states: 1. The subject note and mortgage contained language providing for payment of the lenders attorneys fees by the borrower in the event lender was the prevailing party in any foreclosure action. 2. Florida Statute 57.105(7) provides: 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. 3. Defendant is the prevailing party by virtue of Plaintiffs voluntary dismissal without prejudice or in the alternative from the Courts dismissal of the subject action without prejudice. 4. Defendant is entitled to prejudgment interest on all amounts awarded for attorney fees and costs from the date of the dismissal.

MEMORANDUM OF LAW A. AS THE PREVAILING PARTY, THE DEFENDANTS ARE ENTITLED TO ATTORNEY'S FEES AND COSTS Upon a voluntary dismissal by a plaintiff of its action against a defendant, the defendant becomes the prevailing party and the trial court has jurisdiction to award fees as per a contract between the parties. Stuart Plaza Ltd. v. Atlantic Coast Dev. Corp. of Martin

County, 493 So. 2d 1136, 1136 (4th DCA 1986). In Stuart Plaza, a tenant brought an action against a landlord for specific performance arising out of the landlord's alleged unreasonable refusal to consent to an assignment of the lease. Id. The tenant voluntarily dismissed the case without prejudice and the landlord, thereupon, moved the Court to tax attorney's fees and costs on the grounds that the lease provided for the recovery of such costs by the prevailing party in any litigation arising out of the lease. Id. Stuart Plaza is similar to the present case because the Plaintiff sued the Defendant seeking an equitable remedy, foreclosure, but chose during the course of litigation to voluntarily dismiss its action. The Stuart Plaza court cited well-settled law in the State of Florida, that, when a Plaintiff takes a voluntary dismissal, the Defendant is the prevailing party. Id. at 1137. The Court further held that upon a voluntary dismissal by the plaintiff, the trial court does have jurisdiction to award attorney's fees, where the fees are authorized by statute or contract between the parties. Id. (emphasis added) The Florida Supreme Court cited the Stuart Plaza opinion as authoritative in 1990 in Thorner v. Fort Walton Beach, 568 So. 2d 914, 919 (Fla. 1990) (citing Stuart Plaza, 493 So. 2d at 1137). The Supreme Court noted that when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party. Id. The Supreme Court further stated that a determination on the merits is not a prerequisite to an award of attorney's fees where the statute provides that they will inure to the Note/Mortgage owner if it was the prevailing party. Id. In this particular case, there was a contract that provided that attorney's fees would inure to the prevailing party. Id. See also Bank of New York v. Williams, 979 So.2d 347, 348 (Fla. 1st DCA 2008), citing Alhambra Homeowners Assn v. Asad, 943 So.2d 316 (Fla.App. 4th DCA 2006) (in which Defendant was awarded attorneys fees as the

prevailing party due to Plaintiffs voluntary dismissal, even though Plaintiff re-filed the same action against the Defendant again at a later date, and was ultimately successful). As a matter of law, the Defendants are the prevailing parties by reason of Plaintiffs voluntary dismissal. As such, the Defendants are entitled to their attorney's fees because the contracts between the Plaintiff and Defendants in this action provide for attorney's fees and costs accrued to be paid to the prevailing party which were the result of litigation over the terms/subject matter of such contracts.

B. AFTER THE COURT HAS DETERMINED THE PREVAILING PARTY, CONTRACTUAL ATTORNEY FEES PROVISIONS ARE MANDATORY RECIPROCAL OBLIGATIONS In Landry v. Countrywide Home Loans, Inc., 731 So.2d 137 (Fla. 1st DCA 1999), the 1st District Court of Appeal reversed the lower courts finding that the prevailing partys attorneys fees under F.S. 57.105(2) (of which the exact language has now been moved to F.S. 57.105(7)), was discretionary. Rather, the appellate Court stated: However, we believe the discretion granted by use of may pertains to the determination of a prevailing party in an action founded on a contract. See Hutchinson v. Hutchinson, 687 So.2d 912, 913 (Fla. 4th DCA 1997). Once the prevailing party determination has been made, we believe section 57.105(2) now mandates that contractual attorney's fees provisions be reciprocal obligations. see Jakobi v. Kings Creek Village Townhouse Ass'n, 665 So.2d 325, 326 (Fla. 3d DCA 1995). See also Oakwood Plaza, L.P. v. D.O.C. Optics Corp., 708 So.2d 959, 960 (Fla. 4th DCA), review denied by D.O.C. Optics Corp. v. Oakwood Plaza, L.P., No. 93,290, 725 So.2d 1107 (Fla. Sept.30, 1998) (unless defendant was not the prevailing party due to plaintiff's re-filing its action, petitioner entitled to attorney's fees as prevailing party where plaintiff voluntarily dismissed its suit); Lanahan Lumber Company, Inc. v. McDevitt & Street Company, 611 So.2d 591, 592 n. 1 (Fla. 4th DCA 1993)(AThe intent of ' 57.105(2) is to provide mutuality of attorney's fees as a remedy in contract cases.). Id. at 140. (Emphasis added).

Essentially, this thread of cases delineate that the reciprocal right to recover attorneys fees under F.S. 57.105(7) must be enforced by the court like any other enforceable contractual provision in favor of the prevailing party.

C.

DEFENDANT IS ENTITLED TO PREJUDGMENT INTEREST ON ATTORNEYS FEES AND COSTS

The Defendant is also entitled to prejudgment interest on the attorneys fees and costs for which there has been a confession of judgment. Interest accrues from the date the entitlement to attorneys fees is fixed through agreement, arbitration award, or court determination, even though the amount of the award has not yet been determined. Quality Engineering Installation v. Higley

WHEREFORE, Defendant requests this Court to enter an Order Taxing Attorney Fees and Costs in this matter against the Plaintiff together with interest from the date of the entitlement.