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Black Point Assets, Inc. v. Ventures Trust 2013-I-H-R

Florida Court of Appeals, Second District

January 5, 2018

BLACK POINT ASSETS, INC., AS TRUSTEE UNDER THE 4551 REMINGTON ROAD TRUST DATED, Appellant,
v.
VENTURES TRUST 2013-I-H-R, BY MCM CAPITAL PARTNERS, LLC, ITS TRUSTEE, Appellee.

          NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Circuit Court for Polk County; Larry Helms, Judge.

          Mark P. Stopa of Stopa Law Firm, LLC, Tampa; and Latasha Scott of Lord Scott, PLLC, Tampa, for Appellant.

          Shawn Taylor of DeLuca Law Group, PLLC, Fort Lauderdale, for Appellee.

          MORRIS, Judge.

         Black 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).

         I. BACKGROUND

         Because 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.

         The 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.

          At the 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[1] 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" Rowe.

         II. ANALYSIS

         "Values 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)).

          Here, 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).

         We note 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.[2] 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 ...


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