US Bank, N.A. v. Boyer
US Bank, N.A. v. Boyer
Opinion of the Court
US Bank,. N.A., appeals an order that dismissed with prejudice its complaint for mortgage foreclosure because U.S. Bank’s nonresident cost bond was paid by U.S. Bank’s counsel. On appeal, U.S. Bank argues that an attorney may file a nonresident cost bond on behalf of a client and that such practice does not violate the prohibition, against an attorney’s acting as a surety for his client. We agree and reverse the order of the circuit court.
I. Facts
On December 27, 2006, U.S. Bank filed its complaint to enforce a promissory note and to foreclose a mortgage on property owned by appellees William ‘ Boyer and Linda Elswick. The matter was set for trial on April 24, 2012, but on April 6, 2012, Boyer filed a request for U.S. Bank to post a nonresident cost bond pursuant to section 57.011, Florida Statutes (2011). On April 9, 2012, U.S. Bank’s attorney advanced his own funds and posted the nonresident cost bond of $100 by submitting a check in the amount of $108.50 to the clerk of the circuit court, which included $8.50 for the processing fee.
On April 24, 2012, the day the trial was scheduled to begin, Boyer filed a motion to
II. Analysis
We review de novo the circuit court order dismissing the complaint, which was based on an interpretation of two statutes. Execu-Tech Bus. Sys., Inc. v.. New Oji Paper Co., 752 So.2d 582, 584 (Fla. 2000); Taurus Stornoway Invs., LLC v. Kerley, 88 So.3d 840, 842 (Fla. 1st DCA 2010).
On appeal, U.S. Bank argues that the bond in this case was a cash bond and not a surety bond ' and that rather than a pledge of a surety, U.S. Bank properly deposited $100 with the clerk of the court. Section 57.011 provides that
[wjhen a nonresident plaintiff begins an action ..., he or she shall file a bond with surety to be approved by the clerk of $100, conditioned to pay all costs which may be adjudged against him or her in said action in the court in which the action is brought.
(Emphasis added.) Section 45.011, Florida Statutes (2011), defines a “bond with surety” as
[1] a bond with two good and sufficient sureties, each with unencumbered property not subject to any exemption afforded by law equal in value to the penal sum of the bond or [2] a bond with a licensed surety company as surety or [3] a cash deposit conditioned as for a bond.
The “bond with surety” in this case was a “cash deposit conditioned as for a bond.” US Bank’s attorney did not act as a surety as contemplated by the first two types of bonds in section 45.011; instead, U.S. Bank’s attorney, acting as U.S. Bank’s agent, advanced a cash deposit of $100 to serve as the third type of “bond with surety” described in section 45.011. This was proper. See Romine v. Horobin, 139 Fla. 103, 190 So. 508, 508 (1939) (holding that such a cost bond “may be filed by the plaintiff, his agent, or attorney” and that bond filed by “plaintiffs attorney” in that case was sufficient).
Boyer convinced the circuit court that the attorney’s posting of the $100 bond violated the rule in section 454.20 that “[n]o attorney shall become surety on the official bond of any state, county, or munic
US Bank’s attorney simply advanced the nonresident $100 cost deposit required by section 57.011, along with the $8.50 processing fee. Attorneys routinely advance their client’s costs and in doing so do not violate section 454.20. Rule 4-1.8(e)(1) of the Rules Regulating the Florida Bar specifically provides that “a lawyer may advance court costs and expenses of litigation,” even where, unlike in the instant case, “the repayment of which may be contingent on the outcome of the matter.” And according to the language of section 57.011, U.S. Bank’s attorney could have been personally responsible for this amount if U.S. Bank had not posted the bond and defendants had obtained a judgment against U.S. Bank.. See § 57.011 (providing that if the plaintiff does not file the bond after receiving notice from defendant, defendant may “move to dismiss the action or may hold the attorney bringing or prosecuting the action liable for said costs and if they are adjudged against plaintiff, an execution shall issue against said attorney”); Lady Cyana Divers, Inc. v. Carvalho, 561 So.2d 612, 613-14 (Fla. 3d DCA 1990) (noting that when a defendant does not move to dismiss under section 57.011 but rather obtains a cost judgment against the plaintiff, the plaintiffs attorney may be personally liable for $100 in costs incurred by the defendant).
III. Conclusion
We hold that U.S. Bank’s attorney’s payment of the funds required for the nonresident cost bond does not violate the prohibition against an attorney’s acting as surety for his client. Accordingly, we reverse the order dismissing U.S. Bank’s complaint and remand for further proceedings.
Reversed and remanded.
. Boyer argued that the complaint should be dismissed with prejudice because the statute of limitations had expired, but it appears that the circuit court concluded that the dismissal with prejudice was dictated by section 57.011.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.