Brian Kelly a/k/a Brian K. Kelly v. BankUnited

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

BRIAN KELLY a/k/a BRIAN K. KELLY,
Appellant,

v.

BANKUNITED, FSB,
Appellee.

No. 4D14-2359

[January 7, 2015]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Cynthia Imperato, Judge; L.T. Case No. CACE09-010729
(11).

Kirk J. Girrbach of Guardian Law Group of Florida, P.A., Fort
Lauderdale, for appellant.

Gary M. Carman and Richard F. Danese of Gray Robinson, P.A., Miami,
for appellee.

FORST, J.

Appellant Brian Kelly appeals the order denying his amended motion
for attorneys’ fees in an underlying foreclosure action. We find merit in
Appellant’s argument that, upon Appellee BankUnited’s voluntary
dismissal of the underlying foreclosure action, Appellant is the prevailing
party below for purposes of entitlement to attorneys’ fees under section
57.105(7), Florida Statutes. Accordingly, we reverse the trial court’s order.

Appellee filed a foreclosure complaint against Appellant for defaulting
on a loan. Appellant filed an answer and affirmative defenses, including a
request for the trial court to “award costs and reasonable attorney fees as
provided by 15 U.S.C. 1640(a) & (e), Fla. Statutes, Section 57.105, and the
mortgage and note, and such other relief as this Court deems just and
proper.”

Final summary judgment was entered in favor of Appellee. Appellant
filed an appeal of that judgment. During the pendency of the appeal, the
subject property was sold to a third party by a short sale agreement
entered into by Appellant and Appellee.1 Because of the short sale,
Appellee moved to cancel the foreclosure sale, vacate the final summary
judgment, dismiss the action, and return the original note and mortgage,
which the trial court granted. However, neither party petitioned this court
to dismiss Appellant’s appeal of the final summary judgment before
attempting to dismiss the action below.

Over a year after the short sale, we reversed the order of final summary
judgment and remanded the case to the trial court for rehearing on
Appellee’s motion for summary judgment. Kelly v. BankUnited, FSB, 125
So. 3d 981 (Fla. 4th DCA 2013). On remand, Appellant moved for
attorneys’ fees and costs in the trial court, arguing that he is the prevailing
party in the case and entitled to fees under the terms of the mortgage
document and section 57.105(7). Upon a magistrate’s recommendation,
the trial court continued the motion until it could rehear Appellee’s motion
for summary judgment pursuant to our mandate. In a separate order, the
trial court recognized that Appellee had voluntarily dismissed the case
because of the short sale agreement.

After a hearing on his original motion for attorneys’ fees, Appellant
amended his motion and it again came before the court. The trial court
denied Appellant’s amended motion, which is the subject of the instant
appeal.

Generally, a trial court’s ruling on a motion for attorneys’ fees is
reviewed for abuse of discretion; “[h]owever, where entitlement depends on
the interpretation of a statute or contract the ruling is reviewed de novo.”
Mihalyi v. LaSalle Bank, N.A., 39 Fla. L. Weekly D2269, at *1 (Fla. 4th DCA
Oct. 29, 2014).

Initially, we note that Appellant’s request for fees in his answer to
Appellee’s complaint was sufficient to place Appellee on notice of
Appellant’s intent to seek attorneys’ fees in the action. See Stockman v.
Downs, 573 So. 2d 835, 837 (Fla. 1991). We also note that Appellee’s
attempt to voluntarily dismiss the case in the trial court while the final
summary judgment order was pending on appeal is a nullity and therefore
does not factor in the analysis below. See Equibank, N.A. v. Penland, 330
So. 2d 739, 739-40 (Fla. 1st DCA 1976).

1The agreement apparently made no mention with respect to responsibility for
the payment of either party’s attorneys’ fees.

2
 On the merits of whether Appellant was the prevailing party below for
purposes of section 57.105, we find our recent decision in Mihalyi
controlling. In that case, we held, “A plaintiff’s voluntary dismissal makes
a defendant the ‘prevailing party’ within the meaning of subsection
57.105(7), even if the plaintiff refiles the case and prevails.” Mihalyi, 39
Fla. L. Weekly D2269, at *1; see also Thornber v. City of Fort Walton Beach,
568 So. 2d 914, 919 (Fla. 1990) (“In general, when a plaintiff voluntarily
dismisses an action, the defendant is the prevailing party. A determination
on the merits is not a prerequisite to an award of attorneys’ fees where the
statute provides that they will inure to the prevailing party.” (internal
citation omitted)).

As Appellee voluntarily dismissed the foreclosure action against
Appellant on remand from the reversal of final summary judgment,
Appellant is the prevailing party for purposes of section 57.105(7), which
entitles him to attorneys’ fees and costs pursuant to the provisions in the
mortgage document. Thus, we reverse the order denying Appellant’s
motion for attorneys’ fees and remand for the trial court to grant the
motion and conduct further proceedings as necessary.

Reversed and remanded with instructions.

LEVINE and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

3