Bruce Freiman v. National City Mortgage Co.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

BRUCE FREIMAN,
Appellant,

v.

NATIONAL CITY MORTGAGE CO.,
Appellee.

No. 4D13-2935

[July 15, 2015]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Roger B. Colton, Judge; L.T. Case No.
502008CA029678XXXXMB.

Kendrick Almaguer and Michael Vater of The Ticktin Law Group, P.A.,
Deerfield Beach, for appellant.

Suzanne Youmans Labrit of Shutts & Bowen, LLP, Tampa, and Edward
J. O’Sheehan of Shutts & Bowen, LLP, Fort Lauderdale, for appellee.

DAMOORGIAN, J.

Appellant, Bruce Freiman, appeals a final judgment of foreclosure
entered in favor of National City Mortgage Co. (“the Bank”) following a
bench trial. On appeal, Appellant takes issue with the evidence
establishing the Bank’s standing to foreclose, compliance with conditions
precedent, and attorney’s fees. We reverse the portion of the final
judgment awarding the Bank its attorney’s fees, and affirm in all other
respects without further comment as to Appellant’s remaining arguments.

This matter was resolved at a bench trial held in June of 2013. At the
trial, the Bank’s only witness was its default litigation coordinator and
mortgage officer who testified as to Appellant’s loan and payment history
and the Bank’s business and loan practices. The witness did not offer any
testimony regarding the attorney’s fees incurred by the Bank foreclosing
Appellant’s mortgage nor did the Bank introduce any affidavits or other
evidence establishing its fees. At the conclusion of the trial, the parties
presented the court with their respective proposed final judgments. The
Bank’s proposed judgment contained a line item for 176.40 hours of
attorney work totaling $43,530.50. After taking the matter under
advisement, the court entered the Bank’s proposed judgment without
modifying the fee award.

“The standard of review of an award of attorneys’ fees is abuse of
discretion.” Diwakar v. Montecito Palm Beach Condo. Ass'n, Inc., 143 So.
3d 958, 960 (Fla. 4th DCA 2014). “‘We will uphold a trial court's award of
attorneys’ fees so long as it is supported by substantial, competent
evidence.’” Id. (quoting Effective Teleservices, Inc. v. Smith, 132 So. 3d 335,
341 (Fla. 4th DCA 2014)).

The Bank concedes that it did not submit sufficient evidence
supporting the court’s fee award, but argues that we should remand for
additional proceedings to determine its entitlement to fees because there
was “some” evidence of its fees in the record. Specifically, it cites to an
affidavit it filed in 2011 which establishes that the Bank incurred $3,400
in attorney’s fees for eleven hours of work.

In support of its position, the Bank points to our opinion in Diwakar,
where we reversed a fee award that was based only on paralegal testimony.
143 So. 3d at 961. However, in doing so, we remanded for additional
proceedings because, although it did not admit them into evidence, prior
to trial the prevailing party filed the affidavits of its fees expert and attorney
establishing the amount of fees awarded. Id. We explained:

Generally, when the record on appeal is devoid of competent
substantial evidence to support the attorney's fee award, the
appellate court will reverse the award without remand for
additional evidentiary findings. However, when the record
contains some competent substantial evidence supporting the
fee or cost order, yet fails to include some essential evidentiary
support such as testimony from the attorney performing the
services, or testimony from additional expert witnesses, the
appellate court will reverse and remand the order for additional
findings or an additional hearing, if necessary.

Id. (citations omitted) (internal quotation marks omitted).

Diwaker is distinguishable from the instant case because the affidavits
filed in Diwaker constituting “some competent substantial evidence
supporting the fee” order were filed right before trial and matched the
amount of fees ultimately awarded. Id. Conversely, the affidavit relied on
by the Bank was filed two years before trial and is for less than a tenth of
the amount ultimately awarded. Thus, the 2011 affidavit of fees does not

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support the entirely different fee award contained in the final judgment.
Accordingly, we reverse the portion of the final judgment awarding the
Bank its fees without an opportunity for reconsideration on remand.

Affirmed in part and reversed in part.

CONNER, J. and HAIMES, DAVID, Associate Judge, concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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