BLACK POINT ASSETS, INC., AS TRUSTEE UNDER THE 4551 REMINGTON ROAD TRUST DATED, Appellant,
VENTURES TRUST 2013-I-H-R, BY MCM CAPITAL PARTNERS, LLC, ITS TRUSTEE, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Polk County; Larry Helms, Judge.
P. Stopa of Stopa Law Firm, LLC, Tampa; and Latasha Scott of
Lord Scott, PLLC, Tampa, for Appellant.
Taylor of DeLuca Law Group, PLLC, Fort Lauderdale, for
Point Assets, Inc. (Black Point), as trustee under the 4551
Remington Road Trust dated March 1, 2013, appeals the final
judgment of foreclosure entered in favor of Ventures Trust
2013-I-H-R (Ventures Trust), by MCM Capital Partners, LLC,
its trustee. We affirm the portion of the final judgment
awarding monies for the outstanding principal, interest, and
escrow advances without further comment. However, we reverse
the portion of the final judgment awarding attorneys'
fees because there was no competent, substantial evidence to
support the amount awarded and because the discrepancies
between the amount requested, the amount determined to be
reasonable, and the amount awarded result in that portion of
the final judgment failing to comply with the intent of
Florida Patient's Compensation Fund v. Rowe, 472
So.2d 1145 (Fla. 1985), and Standard Guaranty Insurance
Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990).
we have found error only in the award of attorneys' fees,
a complete recitation of the facts is unnecessary. It is
sufficient to note that Ventures Trust, a substituted party
for the original plaintiff in the foreclosure action,
obtained the final judgment against Black Point, a nonparty
to the note and mortgage who purchased the subject property
after the original property owner's default, but before
the filing of the original foreclosure complaint. While the
foreclosure case was pending, Ventures Trust filed two
affidavits for attorneys' fees, one from an
attorneys' fees expert and one from the attorney hired by
Ventures Trust. The attorney who represented Ventures Trust
sought fees in the amount of $11, 710.50.
record does not reflect that a hearing was held on the issue
of attorneys' fees, and no expert testimony was presented
on that issue at the nonjury trial. It is undisputed that
there was no fee agreement between the parties.
conclusion of the trial, the trial court entered final
judgment in favor of Ventures Trust which included
attorneys' fees and costs totaling $12, 841.61. That
amount was listed in a table of all of the awarded sums of
money and was comprised of $7, 016.68 for
"Attorney Fees & Cost" and $5, 824.93 for
"Prior Servicer Attorney Fees." The trial court
explained that the fee award was "based upon the
affidavits presented and upon inquiry of counsel for the
Plaintiff." The trial court also summarily concluded
that "there [were] no reduction or enhancement factors
for consideration by the Court pursuant to"
awarded in a foreclosure judgment must be based on competent,
substantial evidence." Boyette v. BAC Home Loans
Servicing, LP, 164 So.3d 9, 10 (Fla. 2d DCA 2015)
(citing Wagner v. Bank of Am., N.A., 143 So.3d 447,
448 (Fla. 2d DCA 2014)); see also Colson v. State Farm
Bank, F.S.B., 183 So.3d 1038, 1040 (Fla. 2d DCA 2015)
(explaining that "a sufficiency of the evidence
claim" is reviewed "for competent, substantial
evidence"). An attorneys' fees award "must be
supported by expert evidence, including the testimony of the
attorney who performed the services." Diwakar v.
Montecito Palm Beach Condo. Ass'n, 143 So.3d 958,
960 (Fla. 4th DCA 2014) (quoting Tutor Time Merger Corp.
v. MeCabe, 763 So.2d 505, 506 (Fla. 4th DCA 2000)).
"Competent evidence includes invoices, records[, ] and
other information detailing the services provided as well as
the testimony from the attorney in support of the fee."
Id. (quoting Brewer v. Solovsky, 945 So.2d
610, 611 (Fla. 4th DCA 2006)).
at trial, the payment history, account ledger, and payoff
statement were properly introduced into evidence. However,
none of those documents contained competent, substantial
evidence to support the $12, 841.61 fee award. The payment
history consisted of coded data entries with no final totals.
The payoff statement reflects that $181, 951.91 was the total
amount due as of November 17, 2015, and one of the line items
was "UNPAID FEES" in the amount of $12, 841.61, but
there was no description of the services that resulted in the
imposition of those fees. The account ledger contains a
spreadsheet which reflect numerous charges for "FEE
BILLED" in varying amounts that were posted between
October 10, 2014, and October 26, 2015. Those amounts, when
added together, result in the amount awarded: $12, 841.61.
But like the payoff statement, there was no description of
the services provided that resulted in the imposition of
those fees. Another document that was admitted in conjunction
with the account ledger reflected a table entitled "BSI
Fee Breakdown" with a total of $7, 016.68, along with
another table entitled "Prior Servicer Fee
Breakdown" with a total of $5, 824.93. Like the other
documents, there was no description of the services provided
that resulted in the imposition of those fees. Nor was there
any testimony explaining these documents or the figures in
them. Specifically, there was no testimony "regarding
the identity of the timekeeper, the hours worked, or the work
performed." Diwakar, 143 So.3d at 961; see
also Boyette, 164 So.3d at 10 (reversing attorneys'
fees award where the record did not reflect any agreement to
a flat attorneys' fee and where there was no other
competent, substantial evidence to support the fee award).
that the trial court made a finding that "38.70 hours
were reasonably expended by Plaintiff's counsel and that
an hourly rate of $215.00 is appropriate." This
finding appears to emanate from the attorneys' fees
affidavits filed prior to trial. The attorney who billed
Ventures Trust stated he had completed 38.70 hours of work at
the rate of $215 per hour. The attorney also stated that in
addition to the hourly work, Ventures Trust had agreed to pay
a flat fee of $3390. Thus the attorney was seeking a total
award of $11, 710.50 ($8320.50 for the hourly rate plus $3390
for the flat fee), an amount that the attorneys' fees
expert opined was a reasonable fee. However, the trial court did
not address the $3390 flat fee that was requested in the
attorneys' fees affidavit, and thus it is unknown whether
that amount was included in the $12, 841.61 award. The
portion of the final judgment awarding attorneys' fees
simply fails to address the discrepancy between the requested
amount and the amount awarded. And the order itself is