[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-14536 ELEVENTH CIRCUIT
APRIL 26, 2012
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D.C. Docket No. 9:08-cv-80795-DTKH
FLAGSTAR BANK, FSB, a federally
chartered savings bank,
Plaintiff-Counter Defendant-Appellee,
versus
A. M. HOCHSTADT,
Defendant-Counter Claimant,
TEREZ HOCHSTADT,
Defendant-Counter Claimant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 26, 2012)
Before CARNES, WILSON and COX, Circuit Judges.
PER CURIAM:
Terez Hochstadt (“Terez”) sought an award of attorney’s fees from Flagstar
Bank, FSB (“Flagstar”) for work done by her attorney in her defense in the district
court. The district court denied her request for fees. Terez appeals, challenging the
denial. We affirm.
Terez and her husband, A. M. Hochstadt, lived in Palm Beach County, Florida.
In 2006, A. M. Hochstadt signed two promissory notes evidencing an indebtedness
of several million dollars, payable to the Plaintiff, Flagstar. Terez did not sign the
notes. But, to secure each note, Terez and her husband gave Flagstar two mortgages
on their home, each mortgage securing one of the notes. About two years later, the
Hochstadts ceased making payments on the indebtedness secured by these mortgages.
Flagstar sued. Counts I and III of the complaint sought to recover on the notes. These
counts asserted claims against A. M. Hochstadt alone. Counts II and IV requested a
declaration that Flagstar held valid mortgages on the home and the right to foreclose
those mortgages; they also sought “such further relief as [the court] deems proper.”
(R.1-1 at 5.) These counts sought relief against both Terez and A. M. Hochstadt.
The district court granted Flagstar summary judgment on all counts. Regarding
Counts II and IV, the court permitted the bank to foreclose the mortgages on the
home. And, the court also ordered Terez to pay Flagstar roughly $100,000 in money
damages. The court reasoned that the mortgage agreements contained several
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covenants (such as promises to pay insurance premiums, real estate taxes, and other
costs), and that Terez and her husband breached these covenants when they ceased
making mortgage payments. Thus, the court concluded, Flagstar was entitled to
money damages from both Terez and her husband under the mortgage agreements.
Terez hired a new lawyer and appealed the award of money damages against
her. This Court reversed that award. We held that, under the mortgage agreements,
Flagstar was entitled to foreclose on Terez’s interest in the home, but was not entitled
to recover money damages from her.1
After remand, Terez requested attorney’s fees for her first attorney’s work in
the district court. This is a diversity case, and the substantive law of Florida governs.
Ins. Co. of N. Am. v. Lexow, 937 F.2d 569, 571 (11th Cir. 1991). Terez would be
entitled to attorney’s fees under Fla. Stat. 57.105(7) if she prevailed on a significant
issue in this litigation before the district court. She contended that she was entitled
to attorney’s fees because she ultimately prevailed on the money damages issue.
Terez also contended that Flagstar’s claim for money damages was separate and
distinct from its claim to foreclose the mortgages on the home. See Folta v. Bolton,
493 So. 2d 440, 442 (Fla. 1986). The district court referred this matter to a magistrate
judge, who recommended denial of Terez’s request for fees. Terez filed written
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Terez requested and received attorney’s fees for her second attorney’s work on her appeal.
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objections with the district court. The court overruled Terez’s objections and adopted
the magistrate judge’s report and recommendation.
Under Florida law, we review de novo “whether multiple claims within a
lawsuit are separate and distinct for purposes of an award of attorney’s fees.” Rosen
Bldg. Supplies, Inc. v. Krupa, 927 So.2d 899, 900 (Fla. Dist. Ct. App. 2005). We
review for an abuse of discretion a court’s decision about which party prevailed on the
significant issues in the litigation. See Moritz v. Hoyt Enters., Inc., 604 So.2d 807,
810 (Fla. 1992).
First, we address Terez’s contention that Flagstar’s claim for money damages
is a separate and distinct claim under Folta v. Bolton, 493 So. 2d 440 (Fla. 1986).
Folta permits a court to award attorney’s fees to the prevailing party on each claim
which “is separate and distinct and would support an independent action, as opposed
to being an alternative theory of liability for the same wrong.” 493 So. 2d at 442. We
reject Terez’s contention that Folta applies to this case. Flagstar’s claim for money
damages did not arise “from different acts resulting in different injuries.” Davis v.
Prudential Sec., Inc., 59 F.3d 1186, 1195 (11th Cir. 1995). Instead, it arose from the
same acts which entitled Flagstar to foreclose on the Hochstadt’s home—i.e., the
Hochstadt’s failure to make their mortgage payments. The injury was also the same.
Flagstar did not get paid when it was supposed to get paid. Flagstar’s request for
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different forms of relief for the same wrong does not make its claim separate and
distinct. See, e.g., Musselwhite v. Charboneau, 840 So. 2d 1158, 1160 (Fla. Dist. Ct.
App. 2003) (claim not separate and distinct though plaintiff sought equitable relief and
money damages). Counts II and IV of Flagstar’s complaint primarily sought to
foreclose the mortgages. But these counts also requested other proper relief, such as
money damages. Becase Flagstar’s claim for money damages was merely a portion
of the relief it sought for the Hochstadt’s default under the mortgage agreements, it
is not a separate and distinct claim under Folta.
Next, Terez contends that the money damages issue was a significant one in the
litigation in the district court. The magistrate judge applied the correct legal standard
and rejected this contention in a well-reasoned report and recommendation. The
district court considered Terez’s written objections and then adopted the magistrate
judge’s report and recommendation. We conclude there was no abuse of discretion.
Finally, Terez contends that the district court should have awarded attorney’s
fees under 28 U.S.C. § 1927 because Flagstar engaged in abusive litigation practices.
We review for an abuse of discretion. McMahan v. Toto, 256 F.3d 1120, 1128 (11th
Cir. 2001). We conclude the district court did not abuse its discretion in refusing
Terez’s request.
AFFIRMED.
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