Opinion
No. 85-1313.
November 19, 1986. Rehearing Denied December 12, 1986.
Appeal from the Circuit Court, Palm Beach County, R. William Rutter, Jr., J.
Esther A. Zaretsky, West Palm Beach, for appellants.
James Patrick Garrity of Moyle, Flanigan, Katz, Fitzgerald Sheehan, P.A., West Palm Beach, for appellee.
We affirm the final judgment, and write only upon the question of appellee's right to an attorney's fee on appeal. There is no question as to the right of appellee to an attorney's fee at trial. The note in question provided:
The makers and endorsers and all persons that assume the obligation as guarantors to pay this note, hereby agree to pay any and all costs of collection, including a reasonable attorney fee in the event the principal of this note or any payment on the principal or portion thereof or any interest due thereon is not paid at the respective maturity thereof, in any case whether a suit be brought or not.
Section 673.106 Florida Statutes (1985), permits such a provision in a negotiable instrument.
We start with the principle that a statute in derogation of common law must be strictly construed; and at common law, an attorney's fee would not have been recoverable.
Section 59.46, Florida Statutes (1985), provides:
In the absence of an expressed contrary intent, any provision of a statute or of a contract entered into after October 1, 1977, providing for the payment of attorney's fees to the prevailing party shall be construed to include the payment of attorney's fees to the prevailing party on appeal.
There is no language in the note in question which contains the mutuality of relief which the statute addresses. The instrument employs only the customary unilateral language in favor of the holder or payee.
Appellate attorney's fees are denied.
STONE, J., concurs.
WALDEN, J., dissents without opinion.