FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D17-3112

_____________________________

EUGENE HAM, III,

Appellant,

v.

PORTFOLIO RECOVERY 

ASSOCIATES, LLC,

Appellee.

_____________________________

No. 1D17-3113

_____________________________

LAURA FOXHALL,

Appellant,

v.

PORTFOLIO RECOVERY 

ASSOCIATES, LLC,

Appellee.

_____________________________

On appeal from the County Court for Escambia County.

Patricia A. Kinsey, Judge.
2

November 30, 2018

PER CURIAM.

In these consolidated cases, Eugene Ham and Laura Foxhall 

challenge final orders denying their claims for prevailing party 

attorney’s fees in actions brought by Portfolio Recovery Associates, 

LLC, to recover unpaid credit card debt under an “account stated” 

theory of liability. We accepted jurisdiction of the orders certified 

by the county court to be of great public importance. For the 

reasons that follow, we affirm. 

Background

Portfolio, as assignee of GE Capital Retail Bank (“Bank”) and 

purchaser of certain consumer debts, filed separate actions against 

Mr. Ham and Ms. Foxhall in the small claims division of the 

Escambia County Court. In each case, Portfolio filed a one-count 

complaint for common law account stated to collect the balance 

allegedly owed on a credit card account originating with the Bank. 

Portfolio alleged that each debtor had a revolving credit card 

account with the Bank, the debtor used the account to make 

purchases and/or cash advances resulting in an unpaid balance,

the Bank provided monthly credit card account statements to the 

debtor for the amounts due, and the debtor did not object to the 

account statement. The total amount in controversy for both cases

was $4,754.43.1 Portfolio did not attach to the complaint or 

mention any written credit card contracts between the Bank and 

the debtor (“credit contract”), nor did Portfolio plead an 

entitlement to attorney’s fees if successful in the actions.

In their answers, the debtors denied the material allegations 

of the complaints and asserted several affirmative defenses. They 

also requested reciprocal attorney’s fees pursuant to section 

57.105(7), Florida Statutes.

 1 Portfolio sought recovery of $819.74 from Mr. Ham and 

$3,934.69 from Ms. Foxhall.
3

Both sides moved for summary disposition with competing 

affidavits. Portfolio submitted affidavits from its records custodian 

with attached credit card statements and other documents. The 

debtors submitted affidavits in which they disputed the balances 

claimed by Portfolio and denied agreeing with Portfolio to any 

account balances. 

The county court proceeded to trial in both cases. Finding that 

Portfolio failed to offer any admissible evidence to support the

complaints, the court entered final judgments in favor of the 

debtors and reserved jurisdiction to address attorney’s fees and 

costs. 

After entry of the final judgments, the debtors filed motions 

for reciprocal attorney’s fees pursuant to section 57.105(7). The 

motions referenced the provisions of the respective credit contracts

providing for the payment of attorney’s fees and costs for collection 

of the account in the event of default. Portfolio opposed the 

requests for attorney’s fees on several grounds, including that the

credit contracts did not apply since its complaints were based on 

the theory of “account stated,” not breach of contract.

The trial court initially agreed with the debtors regarding 

their entitlement to attorney’s fees, concluding that because there 

would be no consumer debt but for the credit contracts, the 

extension of credit and ultimate collection of the debts are

inextricably intertwined and cannot be separated. After an 

evidentiary hearing, the court ordered Portfolio to pay attorney’s 

fees and costs of $51,046.50 in Mr. Ham’s case and $53,570.00 in 

Ms. Foxhall’s case.

Portfolio moved for a new trial with respect to the debtors’ 

entitlement to attorney’s fees based on an intervening appellate 

decision from the Escambia County Circuit Court, Portfolio 

Recovery Associates, LLC v. Gruenwald, No. 2016 AP 000024 (Fla. 

1st Cir. Ct. Apr. 21, 2017).2 In Gruenwald, the First Circuit held 

 2 The circuit court’s appellate decision in Gruenwald is 

currently pending in this Court on certiorari review in Case No. 

1D17-1914. Based on our review of the docket in that case, it 

appears that the party’s name is correctly spelled “Grunewald.”
4

that section 57.105(7) does not apply in a case in which a creditor 

proceeds under an account stated cause of action independent of 

any written credit card agreement the creditor has with a debtor. 

Id. at *3-4. Citing Gruenwald as binding precedent,3 the county

court granted the motions for new trial and reversed its judgments 

for attorney’s fees and costs. Recognizing the conflicting judicial 

decisions on the issue4 and the significance of its ruling, the court 

 3 Circuit court appellate decisions are binding on all county 

courts within that circuit. Fieselman v. State, 566 So. 2d 768, 770 

(Fla. 1990).

4 Though this case is one of first impression in this Court, 

several courts have previously ruled on this issue. The Second 

District, in agreement with several circuit courts sitting in their 

appellate capacity, recently held that section 57.105(7) provides for 

attorney’s fees in an account stated action when the contract 

includes a unilateral provision for attorney’s fees. See Bushnell v. 

Portfolio Recovery Assocs., LLC, 43 Fla. L. Weekly D2144a (Fla. 2d 

DCA Sept. 14, 2018) (“The credit card contract and the account 

stated cause of action are . . . inextricably intertwined such that 

the account stated cause of action is an action ‘with respect to the 

contract’ under section 57.105(7).”); Portfolio Recovery Assocs., 

LLC, v. York, 25 Fla. L. Weekly Supp. 4a (Fla. 10th Cir. Ct. Mar. 

16, 2017) (“[B]ut for the credit agreement there would not be credit 

given in order to have a debt (Account Stated) in the first place.”); 

Portfolio Recovery Assocs., LLC, v. Benjamin, 24 Fla. L. Weekly 

Supp. 96a (Fla. 9th Cir. Ct. Apr. 18, 2016) (“[T]he lawsuit 

encompassed the situation that the attorney’s fee provision 

contemplated.”). However, several circuit courts, when confronted 

by the same question, have held the opposite. See Portfolio 

Recovery Assocs., LLC v. Gruenwald, 2016 AP 000024 (Fla. 1st Cir. 

Ct. Apr. 21, 2017) (holding that an account stated cause of action 

is “independent of the original credit contract” and not an action 

“with respect to the contract” subject to section 57.105(7)); Balog 

v. CACH, LLC, 24 Fla. L. Weekly Supp. 474a (Fla. 6th Cir. Ct. 

Sept. 20, 2016) (“[I]f CACH had prevailed at the trial level, it would 

not have been entitled to attorney’s fees; therefore, awarding 

attorney’s fees under the reciprocity provision of section 57.105(7) 

. . . would be contrary to legislative intent.”); Pujol v. Capital One 

Bank (USA), 23 Fla. L. Weekly Supp. 517a (Fla. 15th Cir. Ct. Sept. 
5

certified the following question of great public importance to this 

Court:

IS AN “ACCOUNT STATED” CAUSE OF ACTION BROUGHT BY AN 

ASSIGNEE SEEKING TO COLLECT A CREDIT CARD DEBT 

ARISING FROM A WRITTEN CREDIT CARD AGREEMENT 

BETWEEN THE DEFENDANT DEBTOR AND THE ASSIGNOR,

WHICH INCLUDES A UNILATERAL ATTORNEY’S FEE 

PROVISION, AN ACTION TO ENFORCE A CONTRACT, SUCH 

THAT THE PREVAILING PARTY IS ENTITLED TO AN AWARD OF 

ATTORNEY’S FEES UNDER §57.105(7), FLORIDA STATUTES,

WHERE A PORTION OF THE DEBT INCLUDES LATE FEES AND 

FINANCE CHARGES ARISING OUT OF THAT WRITTEN 

AGREEMENT?

We have jurisdiction pursuant to Florida Rules of Appellate 

Procedure 9.030(b)(4)(A) and 9.160. 

Analysis

It is well settled that the prevailing party in litigation is not 

entitled to recover attorney’s fees unless there is a statutory or 

contractual basis for the award. Price v. Tyler, 890 So. 2d 246, 250 

(Fla. 2004); see also State Farm Fire & Cas. Co. v. Palma, 629 So.

2d 830, 832 (Fla. 1993) (“This Court has followed the ‘American 

Rule’ that attorney’s fees may be awarded by a court only when 

authorized by statute or by agreement of the parties.”). In these

cases, the debtors sought attorney’s fees under the unilateral fee 

provisions in their credit contracts, which they contend were made 

reciprocal to them under section 57.105(7). Since resolution of this 

 

21, 2015) (defining an account stated cause of action as “a 

separately enforceable legal agreement”); Portfolio Recovery 

Assocs., LLC v. Cordero, 23 Fla. L. Weekly Supp. 392b (Fla. 7th 

Cir. Ct. July 23, 2015) (“[A]ttorneys’ fees were not recoverable 

under Section 57.105(7) because Portfolio’s initial Complaint was 

not based on a contract, even though there was an underlying 

credit card agreement between the parties that did provide for the 

recovery of fees.”). 
6

case rests on the interpretation of a statute, our review is de novo. 

Lopez v. Hall, 233 So. 3d 451, 453 (Fla. 2018). 

Section 57.105(7) provides as follows: 

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.

“The purpose behind section 57.105(7) is to provide mutuality of 

attorney’s fees as a remedy in contract cases. The statute is 

designed to even the playing field, not expand it beyond the terms 

of the agreement.” Fla. Hurricane Prot. & Awning, Inc. v. Pastina, 

43 So. 3d 893, 895 (Fla. 4th DCA 2010) (citations and internal 

quotation marks omitted). Thus, we must examine the nature of 

Portfolio’s action against the debtors to determine whether the 

attorney’s fees provision in the credit contracts was triggered. 

Portfolio elected to file a one-count complaint against each of 

the debtors, seeking a balance owed from account statements 

rendered to them as a result of unpaid credit card debt. Florida 

courts have long recognized a cause of action for account stated, 

which requires (1) an agreement between the parties as to the 

amount owed, (2) an agreement that the amount owed was due, 

and (3) an express or implicit promise to pay that amount. Everett 

v. Webb Furniture Co., 124 So. 278, 279 (Fla. 1929). An action for 

“account stated is based on ‘the agreement of the parties to pay the 

amount due upon the accounting, and not any written 

instrument.’” Farley v. Chase Bank, U.S.A., 37 So. 3d 936, 937 (4th 

DCA 2010) (quoting Whittington v. Stanton, 58 So. 489, 491 (Fla. 

1912)). Therefore, “it is not necessary, in order to support a count 

upon account stated, to show the nature of the original debt, or to 

prove the specific items constituting the account.” Id. (quoting 

Daytona Bridge Co. v. Bond, 36 So. 445, 447 (Fla. 1904)). Simply 

put, an action for account stated is based on a new promise to pay 

that is separately enforceable without regard to any written 

contract from which the debt may have originated. 
7

Here, the essential allegations of Portfolio’s complaints

against the debtors are that (1) the debtors had business relations 

with the Bank, (2) they obtained and used their respective credit 

cards to make purchases resulting in unpaid balances, and (3) the 

Bank rendered billing statements to them that were not objected

to within a reasonable time. Portfolio did not reference or attach 

the credit contracts to the complaints, but instead attached 

monthly billing statements.

Because the action framed by Portfolio in these cases did not 

rely on the credit contracts containing the unilateral fee provision, 

we conclude that the debtors are not entitled to reciprocal fees 

under section 57.105(7) by virtue of those contracts. To rule

otherwise would undermine Portfolio’s ability to choose its cause 

of action. See Feinberg v. Naile, 561 So. 2d 1307, 1308 (Fla. 3d DCA 

1990) (“A plaintiff is not guaranteed success in the choice of 

remedies, only an opportunity to proceed under a theory which has 

been pled.”). While Portfolio could have brought a claim for 

enforcement of the credit contracts, it elected not to do so and 

instead chose to pursue an account stated theory. As a result, had 

Portfolio prevailed at the trial level, it would not have been entitled 

to fees under the credit contracts either. 

In so holding, we have not overlooked the debtors’ argument

that the credit contracts are inextricably intertwined with the 

account stated claims because the account stated claims would not 

exist but for the credit contracts. Portfolio’s claim, they reason, is 

therefore an action “with respect to the contract” under section 

57.105(7). They rely primarily on the Florida Supreme Court’s 

decision in Caufield v. Cantele, 837 So. 2d 371, 378 (Fla. 2002), for 

support. Caufield involved a suit for fraudulent misrepresentation 

related to a contract for the sale of a mobile home park. The 

supreme court held that because the tort would not have occurred 

but for the contract, “the existence of the contract and the 

subsequent misrepresentation . . . [were] inextricably 

intertwined.” Id. at 379. The court explained that the tort claim 

arose from a party’s failure “to carry out its contractual duty to 

reveal defects in the property,” and no claim would have existed 

but for the contract. Id. Section 57.105(7) was not at issue because 

the contract provided a mutual provision for attorney’s fees.
8

We distinguish this case from Caufield because the actions for 

accounts stated were distinct from, and not inextricably 

intertwined with, the credit contracts. Portfolio pled a cause of 

action for account stated that was based not on the credit 

contracts, but rather on a separately enforceable legal agreement 

that arose from the debtors’ implied promises to pay on an 

accounting rendered by the Bank. The tort claim in Caufield

required proving the existence and the breach of the contract. Id.

An account stated claim, on the other hand, exists independent of 

the underlying contract, requires no evidence of breach of the 

contract, and can exist in the absence of any contract at all.

The facts of this case are more analogous to the facts in 

Tylinski v. Klein Automotive, Inc., 90 So. 3d 870 (Fla. 3d DCA 

2012). In that case, the Tylinskis entered into two contracts with 

a car dealership for the purchase of a vehicle. One contract was for 

the sale of the vehicle (“ROC”) and the other was for its financing

(“RISC”). Id. at 871. Only the RISC contained an attorney’s fees 

provision. Id. at 872. The dealership sued for breach of the ROC,

and the Tylinskis prevailed. Id. The Tylinskis then moved for

attorney’s fees based on section 57.105(7), arguing that both 

contracts were relevant because the sale would not have existed 

but for the financing. Id. The Third District affirmed the denial of 

fees, emphasizing the dealership’s decision to proceed only under 

the ROC: 

We understand the Tylinskis’ argument that, but for the 

financial commitment reflected in the RISC, the 

dealership would not have allowed them to drive the car 

off the lot. Nevertheless, the dealership sought recovery 

under the ROC, not the RISC; there is no contractual 

avenue for recovering attorney’s fees based on the ROC, 

and the Tylinskis did not plead any statutory basis for 

recovering attorney’s fees other than § 57.105(7).

Id. at 872 (footnote omitted). 

The same reasoning applies here. Although the debtors would 

not have credit card debt but for their contracts with the Bank, 

Portfolio did not sue under the credit contracts. It instead 

proceeded under an account stated cause of action that was not
9

dependent on a contract. Accordingly, “there is no contractual 

avenue for recovering attorney’s fees.” See id.

Finally, the certified question suggests the argument that 

because Portfolio sued for amounts that included previously 

accrued late fees and interest, the credit contracts are inextricably 

intertwined with Portfolio’s claims, even if framed as account 

stated. This argument misstates the nature of a cause of action for 

account stated. The elements of a claim for account stated required 

Portfolio to show it had a business relationship with the debtor, it 

sent a bill to the debtor, and the debtor expressed or implied 

agreement to the amount owed. Whether all or part of the debt 

arises from terms of a written agreement is irrelevant to the cause 

of action. The claim stems from an agreement to pay an amount

due upon an accounting, not the individual items constituting the 

account balance. See Farley, 37 So. 3d at 937 (“An itemized 

statement of underlying charges is not required to establish a 

claim for an account stated.”). 

For these reasons, we affirm the trial court’s order denying 

attorney’s fees, answer the certified question in the negative, and 

certify conflict with the Second District’s decision in Bushnell v. 

Portfolio Recovery Associates, LLC, 43 Fla. L. Weekly D2144a (Fla. 

2d DCA Sept. 14, 2018). 

WETHERELL, RAY, and OSTERHAUS, JJ., concur.

_____________________________

Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

_____________________________

Louis K. Rosenbloum of Louis K. Rosenbloum, P.A., Pensacola, and 

Robert N. Heath, Jr., of Robert N. Heath, Jr., P.A., Pensacola, for 

Appellants.

Robert E. Sickles and John P. Gaset of Broad and Cassel, LLP, 

Tampa, for Appellee.
10

Janet Varnell of Varnell & Warwick, P.A., Lady Lake; Lynn 

Drysdale of Jacksonville Area Legal Aid, Inc., Jacksonville; Craig 

E. Rothburd of Craig E. Rothburd, P.A., Tampa; and Arthur Rubin 

of We Protect Consumers, P.A., Tampa, for National Association of 

Consumer Advocates.