Hon Realty Corp. v. First American Title Insurance ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
Nos. 09-15902 & 10-12263 ELEVENTH CIRCUIT
NOVEMBER 18, 2010
Non-Argument Calendar
JOHN LEY
________________________ CLERK
D.C. Docket No. 1:07-cv-20494-KMM
HON REALTY CORP.,
a Florida Corporation,
Plaintiff-Appellee,
versus
FIRST AMERICAN TITLE INSURANCE CO.,
a California Corporation,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(November 18, 2010)
Before EDMONDSON, MARTIN, and COX, Circuit Judges.
PER CURIAM:
This is a consolidated appeal arising out of the district court’s denial of a
request for an award of attorneys’ fees (R.2-75) and appellate attorneys’ fees (R.2-
86). Appellant First American Title Insurance Company (“First American”) argues
that the district court erred in denying requests for the award of attorneys’ fees
pursuant to section 768.79, Florida Statutes. We disagree.
Plaintiff Hon Realty Corp. commenced this action by filing a Petition for
Declaratory Judgment in federal court. (R.1-1.) The parties’ basic dispute was
whether the title insurance that Hon Realty purchased from First American in 2005
covered the encumbrances or liens that were the subject of an Enforcement Order the
City of Miami issued in July 2005, but not recorded until fourteen days after Hon
Realty purchased the subject property in October 2005. Based on the language of an
explicit exclusion from coverage in the policy, the district court concluded that
coverage did not exist for any defect that was not recorded in the public records on
the effective date of the policy and, consequently, that First American afforded no
coverage for the Hon Realty’s claim. (R.2-52 at 4-7.)
Upon entry of judgment in its favor, First American moved for an award of
attorneys’ fees based on a $500 Offer of Judgment made to Hon Realty in July 2007,
that Hon Realty did not accept. (R.2-53.) While the district court was deciding the
issue of attorneys’ fees, Hon Realty had appealed the entry of summary judgment to
this court. We affirmed, and remanded to the district court First American’s
application for appellate attorneys’ fees “for a determination of entitlement and the
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reasonable amount of appellate attorney’s fees, if any, to be awarded.” (R.2-71 at 1.)
For the same reasons stated in its order denying attorneys’ fees for work in the district
court, the district court denied First American’s motion for appellate attorneys’ fees.
Upon careful consideration of the record and the parties’ briefs, we agree with
the district court’s well-reasoned analysis, concluding that First American was not
entitled to recover attorneys’ fees or appellate attorneys’ fees from Hon Realty
because this case “is the type of declaratory judgment action to which Florida’s fee-
shifting statute . . . do[es] not apply . . . .” (R.2-63 at 12.) Under Florida law, an offer
of judgment is unenforceable for taxing attorneys’ fees and costs if the case is not a
civil action for damages. Fla. Stat. § 768.79 (“In any civil action for damages . . . if
a defendant files an offer of judgment which is not accepted by the plaintiff . . . the
defendant shall be entitled to recover reasonable costs and attorney’s fees . . .”); Nat’l
Indem. Co. of the S. v. Consol. Ins. Svcs., 778 So. 2d 404, 408 (Fla. 4th DCA 2001)
(holding that a declaratory judgment is not a civil action for damages). Because this
case is, at its heart, a declaratory action and not a civil action for damages as First
American argues, we affirm.
AFFIRMED.
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