final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Joel T. Lazarus, Senior Judge; L.T. Case No.
Nicholas S. Agnello, Matt Mitchell and Sabrina Niewialkouski
of Burr & Forman LLP, Fort Lauderdale, for appellant.
R. Moskowitz of Neustein Law Group, P.A., Aventura, for
appellees David and Sylvia J. Magua.
appeal arises out of a foreclosure complaint filed by the
bank. After a bench trial, the trial court entered a
foreclosure judgment in favor of the bank and the homeowners
appealed. With respect to that first appeal, the homeowners
argued that (1) the bank lacked standing and (2) it failed to
prove damages and satisfaction of a condition precedent, as
the exhibits used to prove these elements constituted
hearsay. In lieu of an answer brief in the first appeal, the
bank filed a confession of error which stated that it
"confesses to error and does not oppose reversal of the
as to the first appeal, this court issued an opinion which
provided the following: "Appellee confesses error, and
does not oppose reversal of the final judgment. After
reviewing the record, we agree that the trial court erred,
and reverse the final judgment of foreclosure entered by the
trial court and remand for further proceedings."
Magua v. HSBC Bank USA, 197 So.3d 1274, 1274 (Fla.
4th DCA 2016). On remand, the homeowners moved for and were
awarded attorney's fees and costs.
this second appeal, the bank challenges the award of fees and
costs awarded following the agreed upon reversal asserting
that fees and costs cannot be awarded because the reversal
came about upon the bank's confession of error regarding
standing. The bank cites a recent opinion of this court,
Nationstar Mortgage LLC v. Glass, 219 So.3d 896
(Fla. 4th DCA 2017). There, this court recognized the
[T]o be entitled to fees pursuant to the reciprocity
provision of section 57.105(7), the movant must establish
that the parties to the suit are also entitled to enforce the
contract containing the fee provision. A party that prevails
on its argument that dismissal is required because the
plaintiff lacked standing to sue upon the contract cannot
recover fees based upon a provision in that same contract.
Id. at 899.
bank argues that because this court reversed the final
judgment in the first appeal based on the homeowners'
argument that the bank lacked standing, the trial court could
not award fees based on a provision of the mortgage contract
which the bank had no right to enforce. This, the bank
argues, has become the "law of the case."
the bank's argument fails though because as to the first
appeal, the bank confessed error without specification as to
which of the two appellate issues it was confessing error.
Likewise, this court (without objection or a motion to
reconsider or clarify) reversed based on a finding of an
unspecified error. Thus, it is not apparent that this court
considered the standing issue, a requirement under the law of
the case doctrine. Fla. Dep't of Transp. v.
Juliano, 801 So.2d 101, 105 (Fla. 2001) ("The
doctrine of the law of the case requires that questions of
law actually decided on appeal must govern the case in the
same court and the trial court, through all subsequent stages
of the proceedings.").
bank argues that this court implicitly or necessarily decided
the standing issue when it reversed. See id. at 106.
("[T]he law of the case doctrine may foreclose
subsequent consideration of issues implicitly addressed or
necessarily considered by the appellate court's
decision."). However, it cannot be said that this
court's reversal equates to an implicit or necessary
finding on the standing issue. Clearly, reversal could have
been based solely on the second (condition precedent) ground
raised by the homeowners. See, e.g., Edmonds v. U.S. Bank
Nat'l Ass'n, 215 So.3d 628, 629 (Fla. 2d DCA
2017) (declining to reach remaining issues raised on appeal
where reversal was ...