Grant v. Citizens Bank, N.A.
Grant v. Citizens Bank, N.A.
Concurring in Part
I agree that we should strike the award of attorney's fees due to a lack of competent substantial evidence and reverse the award of interest accruing prior to November 2010 because Appellee failed to plead for that relief.
However, "the cardinal principle of judicial restraint-if it is not necessary to decide more, it is necessary not to decide more-counsels us to go no further." PDK Labs. Inc. v. U.S. D.E.A. ,
To illustrate the point, if we decided the interest issue on statute of limitations grounds after receding from Velden , we would affirm the award instead of reverse. As such, this portion of the majority's opinion goes beyond resolving the controversy between the parties and is in the nature of an advisory opinion. See Dep't of Rev. v. Kuhnlein ,
We should not bend principles of restraint in the name of correcting an errant decision. Instead, we should balance both responsibilities by waiting for a case in which the issue is ripe for decision. As Justice Canady has observed, "[u]nder the Florida Constitution, [Florida courts do] not have the power to reach out and grab cases that we deem worthy of our attention." Pino v. Bank of N.Y. ,
GROSSHANS, J., concurs.
Opinion of the Court
William L. Grant appeals the trial court's final judgment of foreclosure in favor of Citizens Bank, N.A. f/k/a RBS Citizens, N.A., following a non-jury trial. While Grant raises several issues, only two, the application of the statute of limitations and the award of attorney's fees, merit discussion. We consider this matter en banc so that we may recede from our opinion in Velden v. Nationstar Mortgage, LLC,
In September 2005, Grant executed a note to SunTrust Mortgage, Inc., secured by a mortgage on real property. The note and mortgage were eventually transferred to Citizens Bank. After Grant failed to make the payment due in December 2010, and all subsequent payments, Citizens Bank accelerated Grant's loan, requiring him to pay the full unpaid principal amount of the loan, plus interest, fees and other charges to cure the default. Grant did not cure the default, and in November 2015, Citizens Bank filed the foreclosure complaint at issue (its third foreclosure action against Grant on the same note and mortgage), alleging Grant defaulted on the note and mortgage by failing to pay the December 2010 payment and all subsequent payments. The complaint sought interest from November 1, 2010, together with principal, attorney's fees and other damages. In response, among other affirmative defenses, Grant argued that the statute of limitations barred Citizens Bank from collecting any amounts due on the note and mortgage accruing more than five years prior to the filing of the complaint. Following a trial, the court entered final judgment in favor of Citizens Bank, and at Citizens Bank's request, awarded interest back to May 2009, a date more than five years prior to the filing of the foreclosure action.
On appeal, Grant argues it was error for the trial court to award interest that accrued more than five years prior to the filing of the action. He further contends that the trial court erred by awarding relief that was not requested in the pleadings or tried by consent. Because we recede from Velden, we disagree with Grant's argument concerning the statute of limitations.
Florida has a five-year statute of limitations for "action[s] on a contract, obligation, or liability founded on a written instrument," or "to foreclose a mortgage." § 95.11(2)(b)-(c), Fla. Stat. (2016). In the context of an installment obligation such as the note and mortgage found here, our supreme court held in Bartram v. U.S. Bank National Ass'n,
Here, the note contained the same provisions. Applying Bartram and the logic of Justice Lawson's concurring opinion in Bollettieri to this case, while Citizens Bank could have waited until the note's maturity date (i.e., fifteen years after the note was executed) to bring its action for nonpayment on the note and to foreclose the mortgage, it was not required to do so. Instead, Citizens Bank accelerated the debt, as it was permitted to do, and filed suit. Had it pleaded a default date of May 2009, more than six years from the first default date alleged (and proved) in the complaint, under Justice Lawson's analysis, Citizens Bank would not have waived or forfeited its right to an award in the final judgment of all monies, including interest, owed for non-payments on the note based on the statute of limitations defense. Nevertheless, since Citizens Bank failed to plead for interest from May 2009, and it was not tried by consent, the trial court erred in awarding interest accruing prior to November 2010. See Wachovia Mortg. Corp. v. Posti,
Grant also challenges the trial court's award of attorney's fees. He argues that Citizens Bank offered no evidence to support the award of attorney's fees. We agree. Because Citizens Bank did not present any evidence of attorney's fees at trial, we reverse the fee award without remand on that issue. See *159Colson v. State Farm Bank, F.S.B.,
Accordingly, we affirm the judgment except insofar as it awards interest accruing prior to November 1, 2010. In doing so, we recede from Velden and adopt the view articulated in Justice Lawson's concurring opinion in Bollettieri regarding the statute of limitations in installment obligation cases. We also strike the award of attorney's fees.
AFFIRMED in part; REVERSED in part; and REMANDED.
COHEN, C.J., TORPY, EVANDER, BERGER, WALLIS, LAMBERT, EDWARDS, and HARRIS, JJ., concur.
EISNAUGLE, J., concurs in part and dissents in part, with opinion, in which GROSSHANS, J., concurs.
We also recede from U.S. Bank, N.A. v. Diamond,
Grant's position regarding the statute of limitations was consistent with the opinion that we would later announce in Velden, which had not been issued at the time the trial court entered the final judgment in this case.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.