final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Monica
Save, and Jeffrey H. Papell, for appellant.
McGlinchey Stafford, PLLC, and Karin L. Posser, N. Mark New,
II and William L. Grimsley (Jacksonville), for appellee.
EMAS, FERNANDEZ and LUCK, JJ.
Radosevich appeals from the trial court's order denying
her motion for trial-level attorney's fees as the
"prevailing party" in the mortgage foreclosure
action below. For the reasons that follow, we reverse and
remand for the trial court to conduct a further hearing, as
may be appropriate, to determine whether Radosevich remains
entitled to an award of attorney's fees as the prevailing
25, 2009, the Bank of New York Mellon, etc.
("BONY") filed a two-count complaint against
Radosevich, seeking (1) to foreclose on a note and mortgage;
and (2) to reclaim a lost note. Attached to the complaint was
a copy of a unendorsed note, naming Countrywide Home Loans,
Inc. as the lender. More than a year after the complaint was
filed, BONY filed another copy of the original note, which
this time contained an undated blank endorsement, along with
an assignment dated July 21, 2009, but with an effective date
of May 19, 2009.
case proceeded to non-jury trial on May 7, 2013. The court
denied BONY's request to admit the loan payment history,
based upon a determination that BONY's witness was not
credible. After BONY rested its case, counsel for
Radosevich moved for involuntary dismissal, arguing
there were discrepancies in the copy of the note filed with
the complaint and the later-filed copy of the note, and that
the mortgage assignment was dated after the complaint was
filed. The trial court granted the motion, and entered an
order of dismissal. The court later denied BONY's motion
for reconsideration or new trial, and BONY appealed the
dismissal order to this court (Case No. 3D13-2280).
meantime, Radosevich moved for trial court attorney's
fees and costs as the prevailing party, pursuant to section
57.105(7), Florida Statutes and a prevailing party provision
in the note and mortgage. While the appeal of the dismissal
order was still pending, an agreed order was entered below on
Radosevich's motion for trial court attorney's fees
and costs, which stated:
1. Defendant's Amended Motion for Attorney's Fees and
Costs is GRANTED as to entitlement pending
the outcome of the appeal.
2. The parties are in agreement that no hearing regarding the
amount of attorney's fees shall be heard until the ...