DAYTONA BEACH – A state appellate court has reversed an award of attorneys' fees in a suit over a mortgage foreclosure action.
Fifth District Court of Appeals Judge Anthony Tatti reversed a ruling from the Orange County Circuit Court that awarded attorneys' fees to appellee Jason Cross and its denial of Cross' request for prejudgment interest.
Appellant Bayview Loan Servicing LLC filed the appeal against Cross and Sherwood Forest Homeowner’s Association of Orlando Inc. to challenge the lower court's award of contractual attorneys’ fees to Cross and its affirmation of the involuntary dismissal of Bayview's mortgage foreclosure action against Cross.
Bayview argued that the trial court erred in its decision to award Cross attorneys’ fees for litigating the amount of those fees. Tatti found that the provisions for attorneys’ fees are not broad enough to include the attorneys’ fees incurred in litigating the amount of fees to be awarded.
“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 contract,” Tatti wrote.
Given this application of Florida’s statutes, Tatti reversed that portion of the attorneys’ fees awarded to Cross.
Secondly, Cross believed that the lower court erred in its denial of his request for prejudgment interest and the appellate court agreed.
"In the instant case, the trial court’s determination at the Dec. 27, 2016, hearing that Cross was entitled to attorney’s fees fixed such entitlement, irrespective of Bayview’s position that it should not have to pay those fees; and the trial court’s denial of Bayview’s motion for reconsideration left that Dec. 27, 2016, determination of entitlement in place, unchanged," Tatti wrote. "Therefore, Cross’s entitlement to attorney’s fees was fixed on Dec. 27, 2016, and Cross is entitled to an award of prejudgment interest from that date through the rendition of the new final judgment entered upon remand after further proceedings that are consistent with this opinion."
Judges Richard Orfinger and Meredith Sasso concurred with the opinion.