Tuesday, November 3, 2015

FYI: Fla App Ct (2nd DCA) Allows Borrowers' Motion for Atty's Fees Filed Over 30 Days After Conditional Notice of Voluntary Dismissal

The Second District Court of Appeals of the State of Florida recently affirmed an award of attorney fees and costs to two borrowers, even though the borrowers moved for fees and costs more than thirty days after the mortgagee filed a notice of voluntary dismissal that was expressly made conditional upon the parties "agreeing to pay their own attorneys' fees and costs."

In so ruling, the Appellate Court confirmed that a conditional notice of voluntarily dismissal was ineffective to commence the thirty day period within which to move for attorney fees and costs under Florida law. 

A copy of the opinion is available at:  Link to Opinion

A mortgagee initiated a foreclosure action, and subsequently filed and served a notice of voluntary dismissal expressly made conditional upon the parties "agreeing to pay their own attorneys' fees and costs."  The borrowers did not stipulate to waive attorney fees allowed under Florida law.

Thereafter, the borrowers filed a motion for final dismissal within thirty days of the mortgage's conditional notice, to which the mortgagee did not respond, and the trial court dismissed the foreclosure action at hearing ("Dismissal").

The borrowers then moved for attorney fees and costs within thirty days of the dismissal, which the trial court granted, holding that the mortgagee's conditional notice was ineffective to commence the thirty day period allowed under Florida law to file a motion for attorney's fees because the mortgagee's notice was conditional. 

The mortgagee appealed the trial court's final judgment awarding attorney fees and costs.

The Appellate Court held the mortgagee had no legal right to compel the trial court to begin the thirty day period to move for fees and costs required by Fla. R. Civ. P. 1.525, because the mortgagee's notice of dismissal was conditioned on a waiver of fees and costs, which did not occur.

As you may recall, the general rule in Florid is that a party seeking to tax attorney fees or costs must serve a motion no later than thirty days after filing of the judgment or service of a notice of voluntary dismissal, which judgment or notice concludes the action as to that party.

The mortgagee relied Tunison v. Bank of America, N.A., 144 So. 3d 588, 592 (Fla. 2d DCA 2014), which held that the waiver of attorney fees in a conditional voluntary dismissal was not binding on the defendant.

The Appellate Court distinguished the Tunison case, however, as the timeliness of the borrower's motion for fees and costs, and whether a conditional notice could permit a clerk to close a file, were not at issue in Tunison.

The Appellate Court also rejected the mortgagee's argument that the conditional language was a scrivener's error, concluding that the thirty-day period did not commence because the effective date of the dismissal could not be determined by the notice and the parties never reached agreement on the stated condition.

Accordingly, the Appellate Court affirmed the final judgment awarding attorney fees and costs to the mortgagors.

Ralph T. Wutscher
Maurice Wutscher LLP
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