NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

KATRINA BUSHNELL, )

)

Appellant, )

)

v. ) Case No. 2D17-429

)

PORTFOLIO RECOVERY ASSOCIATES, )

LLC, )

)

Appellee. )

___________________________________)

Opinion filed September 14, 2018.

Appeal from the County Court for

Hillsborough County; Herbert M. Berkowitz,

Judge.

Jennifer Erin Jones of McIntyre Thanasides 

Bringgold Elliott Grimaldi & Guito, P.A., 

Tampa, for Appellant.

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 Amicus 

Curiae National Association of Consumer 

Advocates, in support of Appellant.

Robert E. Sickles and Jason S. Lambert of 

Broad and Cassell, Tampa; and David M. 

Greenbaum, Racquel A. White, Brian M. 

Bilodeau and Jessica L. Montes of 
- 2 -

Portfolio Recovery Associates, LLC, 

Norfolk, Virginia, for Appellee.

SILBERMAN, Judge.

Katrina Bushnell seeks review of a county court order denying her motion 

for prevailing party attorney's fees after Portfolio Recovery Associates, LLC, voluntarily 

dismissed its account stated cause of action against her. Portfolio, as the successor in 

interest to the original creditor under Bushnell's credit card account, had filed suit to 

recover $1021.22 based on Bushnell's alleged failure to object to a billing statement 

reflecting the amount due. Bushnell sought attorney's fees pursuant to a provision in 

the credit card account agreement that provides for fees to the creditor in any collection 

action and the reciprocity provision in section 57.105(7), Florida Statutes (2015). The 

trial court denied the request for fees and on rehearing certified that this case raises the 

following question of great public importance:

IS AN ACCOUNT STATED CAUSE OF ACTION TO 

COLLECT ON AN UNPAID CREDIT CARD ACCOUNT AN 

ACTION TO ENFORCE A CONTRACT, SUCH THAT THE 

PREVAILING PARTY IS ENTITLED TO AN AWARD OF 

ATTORNEYS' FEES UNDER § 57.105(7), FLORIDA 

STATUTES?

We rephrase the certified question as follows:

IS AN ACCOUNT STATED CAUSE OF ACTION TO 

COLLECT ON AN UNPAID CREDIT CARD ACCOUNT AN 

ACTION "WITH RESPECT TO THE CONTRACT" SUCH 

THAT THE PREVAILING PARTY IS ENTITLED TO AN 

AWARD OF ATTORNEY'S FEES UNDER § 57.105(7), 

FLORIDA STATUTES (2015)?

We answer this question in the affirmative, reverse the order denying Bushnell's motion 

for fees, and remand for further proceedings. 
- 3 -

I. Background

This dispute arises from Bushnell's alleged failure to pay the balance 

owed on an Amazon.com store card. In its complaint and in an affidavit and exhibits 

attached to the complaint, Portfolio claimed that it is the assignee of and successor in 

interest to the original creditor and that it is the owner of Bushnell's credit card account 

and the proceeds of the account. It asserted that it has all of the account seller's "power 

and authority" regarding the account and that the seller has no further interest in the 

account or account proceeds. Notably, Portfolio brought the action as one for account 

stated, as opposed to breach of contract. 

Bushnell answered the complaint, raised multiple affirmative defenses, 

and requested an award of attorney's fees based on the underlying credit card 

agreement. She filed an affidavit to which she attached the credit card agreement that 

she stated was for the account. Eventually, Portfolio voluntarily dismissed its complaint. 

Bushnell then filed a motion for award of attorney's fees and costs as the prevailing 

party, relying on the credit card agreement and section 57.105(7). 

The credit card agreement contains a provision authorizing the creditor to 

recover its attorney’s fees as part of its collection costs if it "ask[s] an attorney who is 

not our salaried employee to collect your account." The agreement does not limit the 

recovery of fees to certain types of collection actions, whether for breach of contract or 

otherwise. And the creditor "may sell, assign or transfer any or all" of its rights or duties 

under the agreement including the rights to payments. 

II. Arguments and Analysis

Section 57.105(7) provides, in pertinent part:
- 4 -

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 trial court found that Bushnell could not recover fees under section 

57.105(7) because the underlying action is not an "action to enforce the contract" as 

required under that statute. Specifically, the court determined that an action for account 

stated is not an action for breach of the contract at issue, which is the credit card 

agreement. The court certified a question that requires proof of an "action to enforce 

the contract" as follows:

IS AN ACCOUNT STATED CAUSE OF ACTION TO 

COLLECT ON AN UNPAID CREDIT CARD ACCOUNT AN 

ACTION TO ENFORCE A CONTRACT, SUCH THAT THE 

PREVAILING PARTY IS ENTITLED TO AN AWARD OF 

ATTORNEYS' FEES UNDER § 57.105(7), FLORIDA 

STATUTES?

 

Bushnell argues that the trial court erred in interpreting section 57.105(7) 

to require an "action to enforce a contract." She asserts that the provision requires an 

action "with respect to the contract." She argues that the certified question should be 

rephrased to require proof of an action "with respect to the contract." And she claims 

that the account stated cause of action is an action with respect to the credit card 

agreement. 

Consistent with the wording of the credit card agreement and the statute, 

and in light of the circumstances before us, we agree with Bushnell that the certified 

question should be rephrased. In our view, there are two requirements for application of 

the reciprocity provision in section 57.105(7): (1) the contract must include "a provision 
- 5 -

allowing attorney's fees to a party when he or she is required to take any action to 

enforce the contract," and (2) the other party seeking fees must "prevail[] in any action, 

whether as plaintiff or defendant, with respect to the contract." See Portfolio Recovery 

Assocs., LLC v. Benjamin, 24 Fla. L. Weekly Supp. 96a (Fla. 9th Cir. Ct. Apr. 18, 2016); 

Pujol v. Capital One Bank (USA), N.A., 23 Fla. L. Weekly Supp. 517a (Fla. 15th Cir. Ct. 

Sept. 21, 2015); Portfolio Recovery Assocs., LLC v. Cordero, 23 Fla. L. Weekly Supp. 

392b (Fla. 7th Cir. Ct. July 23, 2015). 

The main thrust of the first requirement of section 57.105(7) is determining 

whether there is a contractual provision allowing for the recovery of fees by a party who 

is required to take any action to enforce the contract. There is no dispute that the credit 

card agreement at issue has such a provision. The second statutory requirement, if 

met, allows the other party to recover fees even though the agreement provides for the 

recovery of fees only in favor of one party. The main thrust of the second requirement 

is determining whether the movant is the prevailing party in an action with respect to the 

contract. 

In this case, there is no dispute that Bushnell is the prevailing party. See 

Raza v. Deutsche Bank Nat'l Tr. Co., 100 So. 3d 121, 123 (Fla. 2d DCA 2012) 

(explaining that the courts in Florida have consistently determined that a defendant in a 

case that is voluntarily dismissed is the prevailing party for purposes of attorney's fees). 

However, there is a dispute over whether the action for account stated constitutes an 

action with respect to the credit card agreement. Thus, we rephrase the certified 

question as follows: 

IS AN ACCOUNT STATED CAUSE OF ACTION TO 

COLLECT ON AN UNPAID CREDIT CARD ACCOUNT AN 
- 6 -

ACTION "WITH RESPECT TO THE CONTRACT" SUCH 

THAT THE PREVAILING PARTY IS ENTITLED TO AN 

AWARD OF ATTORNEY'S FEES UNDER § 57.105(7), 

FLORIDA STATUTES (2015)?

We answer this question in the affirmative. Our answer to the question is 

informed by the supreme court's interpretation of analogous contract language in 

Caufield v. Cantele, 837 So. 2d 371, 379 (Fla. 2002). In Caufield, the contract provided 

for "attorney's fees in connection with any litigation 'arising out of' the contract." Id. at 

373. The supreme court concluded that the prevailing party in an action for fraudulent 

misrepresentation was entitled to fees under this provision. Id. at 379. In so doing, the 

court considered three other decisions in which courts declined to limit similar 

contractual provisions to contract enforcement claims. Id. (citing Katz v. Van Der 

Noord, 546 So. 2d 1047 (Fla. 1989) (rescission); Kelly v. Tworoger, 705 So. 2d 670 

(Fla. 4th DCA 1998) (fraudulent misrepresentation); and Telecom Italia, SpA v. 

Wholesale Telecom Corp., 248 F.3d 1109 (11th Cir. 2001) (tortious interference)). The 

supreme court reasoned, "Had there been no contract, the ensuing misrepresentation 

would not have occurred. Therefore, the existence of the contract and the subsequent 

misrepresentation in this case are inextricably intertwined such that the tort complained 

of necessarily arose out of the underlying contract." Id.

Although Caufield interpreted a contractual provision, at least one court 

has applied its "inextricably intertwined" test to a statutory provision containing the 

"arising out of" language. See Randall v. Lady of Am. Franchise Corp., 532 F. Supp. 2d 

1071, 1093 (D. Minn. 2007) ("The Court therefore finds that a non-contract claim 

'aris[es] out of [a] contract' for purposes of § 95.03 when that non-contract claim could 

only arise if the parties have entered into a contract." (alteration in original)). We 
- 7 -

conclude that the "arising out of" language is not materially different from the "with 

respect to" language in section 57.105(7). And we hold that the supreme court's 

"inextricably intertwined" test in Caufield is applicable to determine whether an action is 

"with respect to the contract" such that the reciprocity provision in section 57.105(7) 

applies. 

We are not persuaded by Portfolio's argument that the application of the 

inextricably intertwined test to section 57.105(7) is inconsistent with Tylinski v. Klein 

Automotive, Inc., 90 So. 3d 870 (Fla. 3d DCA 2012). In Tylinski, the plaintiff car dealer 

filed suit against the defendants for breach of a Retail Order Contract (ROC) the 

defendants had signed in the course of purchasing a car. Id. at 871-72. The 

defendants prevailed in the breach of contract action, but the trial court denied their 

motion for attorney's fees under section 57.105(7). Id. at 872-73. 

In affirming, the Third District discussed two documents that the parties 

had executed. Id. at 871-72. One was a Retail Order Contract (ROC), which did not 

contain an attorney’s fee provision. Id. at 872. The other was a Retail Installment Sales 

Contract (RISC), which contained an attorney’s fee provision. The court rejected the 

defendants’ argument that fees should have been awarded to them in accordance with 

the terms of the RISC. The court stated that it understood the defendants’ “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." Id. But the court explained that the 

dealer sued only for breach of the ROC. And in their answer to the complaint the 

defendants’ asserted a claim for attorney’s fees under the reciprocity provision of 
- 8 -

section 57.105(7) and the ROC. The defendants did not plead a claim for fees under 

the RISC, which was the contract containing the fee provision. Id.

The Tylinski court's rejection of the defendants' "but for" argument to the 

application of section 57.105(7) is not inconsistent with the application of the inextricably 

intertwined test here. The Third District did not interpret the "with respect to the 

contract" language in section 57.105(7) to determine whether the defendants were 

entitled to fees. Instead, the court upheld the denial of attorney’s fees because the 

defendants failed to plead a proper basis for the recovery of fees. Id. at 872-73. 

In contrast to the circumstances of Tylinski, Portfolio brought an action to 

collect money owed as a result of Bushnell’s use of the Amazon.com store credit card. 

Bushnell responded to the complaint and asserted her claim for fees under a provision 

in the credit card agreement and section 57.105(7). Thus, Tylinski simply does not 

apply here. 

To apply the inextricably intertwined test from Caufield in this case, we 

must consider whether the account stated cause of action could have occurred absent 

the existence of the credit card contract. A claim for account stated requires proof "that 

there was 'an agreement between persons who have had previous transactions, fixing 

the amount due in respect of such transactions, and promising payment.' " Burt v. 

Hudson & Keyse, LLC, 138 So. 3d 1193, 1196 (Fla. 5th DCA 2014) (quoting Farley v. 

Chase Bank, U.S.A., N.A., 37 So. 3d 936, 937 (Fla. 4th DCA 2010)). There does not 

need to be an explicit agreement. Id. Instead, a claim for account stated can be based 

on a debtor's failure to object to an account statement. Id. 
- 9 -

While a claim "for an account stated is based on 'the agreement of the 

parties to pay the amount due upon the accounting, and not any written instrument,' " 

Farley, 37 So. 3d at 937, the amount due here is based on the debtor's failure to pay 

under the credit card contract. Simply put, if there had been no credit card contract, the 

amount due would not have accrued in the first place. The credit card contract and the 

account stated cause of action are therefore inextricably intertwined such that the 

account stated cause of action is an action "with respect to the contract" under section 

57.105(7). Accordingly, we answer the rephrased certified question in the affirmative. 

In summary, we conclude that in an action for account stated brought to 

collect the amount due under a credit card agreement, the reciprocity provision in 

section 57.105(7) applies to a properly pleaded request for attorney’s fees made 

pursuant to the terms of the agreement. As a result, we reverse the order that denied 

Bushnell’s motion for attorney’s fees and remand for the trial court to determine the 

reasonable amount of attorney’s fees to be awarded to Bushnell.1 

Reversed and remanded for further proceedings; certified question 

answered.

KELLY and MORRIS, JJ., Concur. 

1The order on appeal awarded costs to Bushnell as the prevailing party 

pursuant to a stipulation. We do not disturb that portion of the order.