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Azalea Trace, Inc. v. Matos

Florida Court of Appeals, First District

June 4, 2018

Azalea Trace, Inc., Appellant,
Nora Matos and Arnold Eskin, Appellees.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Escambia County. Darlene F. Dickey, Judge.

          Patrick Dervishi of the Shir Law Group, P.A., Boca Raton, for Appellant.

          Samuel W. Bearman of the Law Office of Samuel W. Bearman, L.C., Pensacola, for Appellees.

          PER CURIAM.

         Toward the end of her life, Pearl Eskin moved into Azalea Trace, a nursing home. She signed a residency contract, which required her to pay a substantial entrance fee. The agreement provided that if she died within a certain timeframe, Azalea Trace would refund a portion of the entrance fee. Mrs. Eskin later signed an "Assignment of Reimbursement of Entrance Fee, " through which she assigned her refund rights to her children, appellees Nora Matos and Arnold Eskin. After Mrs. Eskin's death triggered the refund obligation, Azalea Trace gave the children only a partial refund, asserting that it could offset certain amounts. The home said it provided discounted services to Mrs. Eskin before she died and that it could recoup the discounts from the refund. The children sued, seeking a full refund and alleging that the residency contract did not permit the offsets. The children prevailed at summary judgment, Azalea Trace appealed, and we affirmed (albeit without opinion), see Azalea Trace, Inc. v. Matos, 178 So.3d 397 (Fla. 1st DCA 2015) (unpublished table decision).

         The case now comes to us again, the main issue this time being whether the children are entitled to prevailing-party attorney's fees for the victory already won. The trial court held that they were, and it awarded the children approximately $27, 000 for trial-court attorney's fees, approximately $13, 500 for appellate attorney's fees, and approximately $18, 300 in expert costs. We conclude it was error to award fees other than the appellate attorney's fees and expert costs, so we reverse in part.


         Florida generally follows the American Rule, under which each side pays its own attorney's fees. Johnson v. Omega Ins. Co., 200 So.3d 1207, 1214 (Fla. 2016). Courts can order losing parties to pay victors' fees, though, if there is a contractual or statutory basis for doing so. Id. at 1214-15. Below, the children asserted two statutory bases to justify a fee award. First, they sought fees under section 768.79, Florida Statutes (2013), Florida's offer-of-judgment statute. But Azalea Trace argued that the children's offer-of-judgment was invalid, and the children ultimately disclaimed reliance on that statute. Cf. TGI Friday's, Inc. v. Dvorak, 663 So.2d 606, 612 (Fla. 1995) (holding that under section 768.79, a trial court can deny an award of attorney's fees if the qualifying offer was not made in good faith). This left the children (and now leaves us) with just one asserted basis for fees: section 57.105(7), Florida Statutes, which is the focus of this appeal.

         Under section 57.105(7), when a contract provides prevailing-party fees for one party, the court may allow prevailing-party fees for the opposing party, even if the contract does not explicitly provide for them. In other words, the statute serves "to statutorily transform a unilateral attorney's fees contract provision into a reciprocal provision." Bank of New York Mellon Tr. Co., N.A. v. Fitzgerald, 215 So.3d 116, 119 (Fla. 3d DCA 2017); accord Fla. Cmty. Bank, N.A. v. Red Rd. Residential, LLC, 197 So.3d 1112, 1115 (Fla. 3d DCA 2016) ("[N]otwithstanding that the contractual fee provision is one-sided, entitling only one of the contract's parties to prevailing party fees, by operation of law section 57.105(7) bestows on the other party to the contract the same entitlement to prevailing party fees.").

         The trial court awarded fees under this provision, concluding that the assignment document included a prevailing-party fee provision that would have allowed Azalea Trace to recover fees from the children had it prevailed. Thus, the trial court reasoned, section 57.105(7) made that provision reciprocal and allowed the children to recover fees from Azalea Trace. On appeal, Azalea Trace argues that it cannot be liable under section 57.105(7) because it was not a "party" to the assignment. We review this issue de novo. See BOLD MLP, LLP v. Smith, 201 So.3d 1261, 1261 (Fla. 1st DCA 2016).


         We first consider the children's argument that-right or wrong-the fee issue was already decided in the earlier appeal. Under the law-of-the-case doctrine, issues of law actually decided on appeal govern the rest of the proceedings, including subsequent appeals. Fla. Dep't of Transp. v. Juliano, 801 So.2d 101, 105 (Fla. 2001). So if we decided in the earlier appeal that the assignment and section 57.105(7) authorized a fee award, we would stick to that now, absent some showing of manifest injustice, see id. at 106 (noting manifest-injustice exception).

         Our unpublished order granting fees in the earlier appeal explained that the children moved for appellate attorney's fees "pursuant to either section 768.79 [the offer-of-judgment statute] or section 57.105(7)." (emphasis added). The order then said, without elaboration, that "Appellees' motion is granted." For whatever reason, we did not specify the basis on which we granted appellate attorney's fees. As a result, there is no way for us now to conclude that this order actually decided the issue now before us- whether section 57.105(7) authorized an award. Our order might have turned on section 57.105(7), but it might have turned on the offer-of-judgment statute, a statute no longer at issue. To the extent the lower court awarded fees based on our earlier, ...

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