WELLS FARGO BANK NATIONAL ASSOCIATION, AS TRUSTEE AND CUSTODIAN FOR MORGAN STANLEY ABS CAPITAL, MSAC 2007-HE3, Appellant,
ADREN BIRD, URAIWAN BIRD AND U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE, Appellees.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Orange County, John Marshall Kest,
Kimberly S. Mello, Jonathan S. Tannen and Danielle M. Diaz,
of Greenberg Traurig, P.A., Tampa, for Appellant.
J. Hognefelt, of Law Office of Carl J. Hognefelt, Tampa, for
Fargo Bank National Association ("Wells Fargo")
appeals the final judgment imposing a set amount of
contractual attorney's fees against it and in favor of
Adren and Uraiwan Bird ("Borrowers"). Wells Fargo
argues that Borrowers cannot recover contractual
attorney's fees based on the attorney's fees
provision in paragraph 22 of the mortgage and section
57.105(7), Florida Statutes (2006), because the mortgage was
void. We agree and reverse.
attorney's fees must be enforced "absent compelling
circumstances." M.A. Hajianpour, M.D., P.A. v.
Khosrow Maleki, P.A., 975 So.2d 1288, 1289 (Fla. 4th DCA
2008) (citing Hutchinson v. Hutchinson, 687 So.2d
912 (Fla. 4th DCA 1997)). "The prevailing party is the
party that won on the significant issues in litigation."
Id. at 1289-90. (citing Mortiz v. Hoyt Enters.,
Inc., 604 So.2d 807 (Fla. 1992)). "Generally, a
trial court's determination of which party prevailed and
its award of attorney's fees is reviewed for an abuse of
discretion." T & W Developers, Inc. v.
Salmonsen, 31 So.3d 298, 301 (Fla. 5th DCA 2010) (citing
Hinkley v. Gould, Cooksey, Fennell, O'Neill, Marine,
Carter & Hafner, P.A., 971 So.2d 955, 956 (Fla. 5th
DCA 2007)). The abuse of discretion standard is "usually
with regard to the amount of an award rather than the actual
entitlement to an award." Hinkley, 971 So.2d at
956 (citing DiStefano Constr., Inc. v. Fid. & Deposit
Co., 597 So.2d 248, 250 (Fla. 1992)). "However,
when entitlement to attorney's fees is based on the
interpretation of contractual provisions, see Gibbs
Construction Co. v. S.L. Page Corp., 755 So.2d 787, 790
(Fla. 2d DCA 2000), or a statute, see Allstate Insurance
Co. v. Regar, 942 So.2d 969, 971 (Fla. 2d DCA 2006), as
a pure matter of law, the appellate court undertakes a de
novo review." Hinkley, 971 So.2d at 956.
it is undisputed that Borrowers' signatures on the
mortgage were forged. Consequently, there was no valid
contract between Borrowers and Wells Fargo. See Jamnadas
v. Singh, 731 So.2d 69, 70 (Fla. 5th DCA 1999) ("A
forged mortgage is void, a legal nullity." (citing
Se. Bank, N.A. v. Sapp, 554 So.2d 1193 (Fla. 1st DCA
1989))). Thus, because there was no valid contract, it was
error to award attorney's fees under either paragraph 22
of the mortgage or the reciprocity rule found in section
57.105(7), Florida Statutes. See Bank of N.Y.Mellon v.
Mestre, 159 So.3d 953, 956 (Fla. 5th DCA 2015) (holding
attorney's fees cannot be awarded under attorney's
fees clause in a void mortgage). And inasmuch as Borrowers
are not entitled to contractual attorney's fees, they are
also not entitled to recover their expert witness costs.
See Marty v. Bainter, 727 So.2d 1124, 1125 (Fla. 1st
DCA 1999) (citing Jupiter Mall Realty Corp. v.
Rosner's, Inc., 614 So.2d 52 (Fla. 4th DCA 1993));
Cohen v. Gen. Motors Corp., 444 So.2d 1170, 1171
(Fla. 4th DCA 1984).
we reverse that portion of the final judgment awarding
attorney's fees and expert witness costs to Borrowers. In
all other respects, we affirm.
in part, REVERSED in part.
SAWAYA, ORFINGER and BERGER, JJ, concur.
 The trial court's attempt to
distinguish Mestre on the basis that there was a
judicial determination that the mortgage was fraudulent in
that case essentially eliminates the movant's burden of
proving that a contractual provision for attorney's fees
exists and would allow contractual attorney's fees to be
awarded to and against non-parties to the contract. That is
clearly not permissible. See Fla. Cmty. Bank, N.A. v. Red
Road Residential, LLC, 197 So.3d 1112, 1115 (Fla. 3d DCA
2016) ("As section 57.105(7) plainly requires, to gain
the benefit of its substantive entitlement to prevailing
party fees, the party seeking the benefit of reciprocity must