final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Escambia County. Darlene F.
Patrick Dervishi of the Shir Law Group, P.A., Boca Raton, for
W. Bearman of the Law Office of Samuel W. Bearman, L.C.,
Pensacola, for Appellees.
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Matos, 178 So.3d 397 (Fla. 1st DCA 2015) (unpublished
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.
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.
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.").
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).
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
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,