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Bayview Loan Servicing, LLC v. Cross

Florida Court of Appeals, Fifth District

November 15, 2019

BAYVIEW LOAN SERVICING, LLC, Appellant/Cross-Appellee,
v.
JASON CROSS AND SHERWOOD FOREST HOMEOWNER'S ASSOCIATION OF ORLANDO, INC., Appellees/Cross-Appellants.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

          Appeal from the Circuit Court for Orange County, Kevin B. Weiss, Judge.

          Jonathan Blackmore, of Phelan Hallinan Diamond & Jones, PLLC, Ft. Lauderdale, for Appellant/Cross-Appellee.

          Ryan N. Ghantous, of Ghantous & Branch, PLLC, Orlando, for Appellee/Cross-Appellant, Jason Cross.

          No Appearance for Other Appellee/Cross-Appellant, Sherwood Forest Homeowner's Association of Orlando, Inc.

          TATTI, A.M., ASSOCIATE JUDGE.

         Bayview Loan Servicing, LLC, ("Bayview") appeals the final judgment awarding contractual attorney's fees to Jason Cross, which was entered after this court affirmed the involuntary dismissal of Bayview's mortgage foreclosure action against Cross. Bayview raises several issues on appeal, and Cross filed a notice of cross-appeal seeking reversal on two issues. After carefully considering each issue raised by the parties, we affirm on all but two of the issues without further discussion. However, for the reasons explained below, we reverse the trial court's award of attorney's fees incurred in litigating the amount of the award and the trial court's denial of Cross's request for prejudgment interest.

         "FEES FOR FEES"

         Bayview argues that the trial court erred in awarding to Cross attorney's fees for litigating the amount of attorney's fees. "Typically, the appellate court applies an abuse of discretion standard in reviewing a trial court's award of attorney's fees, usually with regard to the amount of an award rather than the actual entitlement to an award." Hinkley v. Gould, Cooksey, Fennell, O'Neill, Marine, Carter & Hafner, P.A., 971 So.2d 955, 956 (Fla. 5th DCA 2007) (citing DiStefano Constr., Inc. v. Fid. & Deposit Co., 597 So.2d 248, 250 (Fla. 1992)). However, when entitlement to attorney's fees is based on the interpretation of contractual provisions or a statute, as a pure matter of law, the appellate court undertakes a de novo review. Id. Because the question of whether a trial court may award attorney's fees for litigating the amount of those fees is one of law, our standard of review is de novo. See Aills v. Boemi, 29 So.3d 1105, 1108 (Fla. 2010) (citing Kirton v. Fields, 997 So.2d 349, 352 (Fla. 2008); D'Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla. 2003)).

         As a general rule, attorney's fees incurred in litigating the amount of attorney's fees to be awarded are not recoverable. See N. Dade Church of God, Inc. v. JM Statewide, Inc., 851 So.2d 194, 196 (Fla. 3d DCA 2003) (addressing a contractual attorney's fees award in a mortgage foreclosure action and holding that "[i]t is settled that in litigating over attorney'[s] fees, a litigant may claim fees where entitlement is the issue, but may not claim attorney's fees incurred in litigating the amount of attorney's fees" (citing State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 832-33 (Fla. 1993))). However, in finding that Cross was entitled to an award of attorney's fees incurred in litigating the amount of his attorney's fees, the trial court relied upon an exception to that general rule that applies where an attorney's fees provision in a contract is "broad enough to encompass fees incurred in litigating the amount of fees." See Trial Practices, Inc. v. Hahn Loeser & Parks, LLP, 228 So.3d 1184, 1189 (Fla. 2d DCA 2017), quashed on other grounds, 260 So.3d 167 (Fla. 2018); Waverly at Las Olas Condo. Ass'n v. Waverly Las Olas, LLC, 88 So.3d 386, 389 (Fla. 4th DCA 2012).

         In Waverly, the Fourth District Court interpreted a contractual attorney's fees provision that authorized the award of prevailing party fees "[i]n the event of any litigation between the parties under [the agreement]." 88 So.3d at 387. The court found that the phrase "any litigation" rendered the provision to be "broad enough to encompass fees incurred in litigating the amount of fees." Id. at 389.

         In Trial Practices, the Second District Court interpreted a contractual attorney's fees provision containing the following pertinent language: "prevailing party in any action arising from or relating to this agreement will be entitled to recover all expenses of any nature incurred in any way in connection with the matter . . . including, but not limited to, attorneys' and experts' fees." 228 So.3d at 1187. The court found that the language permitting recovery of "all expenses of any nature incurred in any way" rendered the provision to be "broad enough to encompass fees incurred in litigating the amount of fees." Id. at 1189 (quoting Waverly, 88 So.3d at 389).

         We find that Waverly and Trial Practices do not support the application of the exception to the general rule against "fees for fees" in the instant case and hold that the trial court erred in awarding to Cross his attorney's fees incurred in litigating the amount of his fees award. There are three applicable contractual attorney's fees provisions in the note and mortgage in the instant case, none of which includes such broad and undefined language analogous to the "any litigation" and "all expenses of any nature incurred in any way" language present in Waverly and Trial Practices. Rather, the first fee provision in the instant case provides for the recovery of attorney's fees incurred "in enforcing th[e] Note" and "to the extent not prohibited by applicable law." The second fee provision authorizes recovery of attorney's fees incurred in pursuing the remedies provided in Section 22 of the mortgage, which Section 22 defines as "acceleration" and "foreclosure." Finally, the third fee provision provides for the recovery of attorney's fees incurred on appeal and in a bankruptcy proceeding. These three fee provisions are not broad enough to encompass attorney's fees incurred in litigating the amount of attorney's fees to be awarded, and we find that the general rule prohibiting such awards applies in the instant case.

         Furthermore, because the attorney's fees provisions in the instant case would not authorize Bayview to recover attorney's fees for litigating the amount of attorney's fees, the reciprocity provision of section 57.105(7), Florida Statutes (2005), cannot function to authorize Cross to recover such fees that are not authorized for Bayview in the ...


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