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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.

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[Copyrighted Material Omitted]

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          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.

          OPINION

         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

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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. SeeN. 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." SeeTrial Practices, Inc. ...


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