Third District Court of Appeal
State of Florida
Opinion filed March 2, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1662
Lower Tribunal No. 20-19481 CC
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Jeniya Nemani, et al.,
Appellants,
vs.
Nasser Sachmechi,
Appellee.
An Appeal from the County Court for Miami-Dade County, Linda Singer
Stein, Judge.
Zeig Law Firm, PLLC, and Justin Zeig and Shelby Schwartzberg
(Hollywood), for appellants.
International Law Partners, LLP, and Karen E. Berger (Hollywood), for
appellee.
Before LOGUE, LINDSEY, and LOBREE, JJ.
LINDSEY, J.
Appellants/defendants below, Benjamin and Jeniya Nemani, appeal
the trial court’s order denying their motion for attorney’s fees. Because the
award of attorney’s fees pursuant to section 83.48, Florida Statutes (2021),
is permissive and because there is no transcript of the trial court’s hearing
on the Nemanis’ motion for fees, we affirm.
This case stems from a property dispute between the Nemanis and
appellee/plaintiff below, Nasser Sachmechi. Sachmechi filed a complaint in
county court to evict the Nemanis pursuant to chapter 83 of the Florida
Statutes. However, the Nemanis had already brought an action for specific
performance to determine the ownership of the same property in circuit court.
The Nemanis moved to dismiss Sachmechi’s eviction action or, alternatively,
to consolidate it with their pending circuit court action for specific
performance. The Nemanis argued that Sachmechi had failed to allege a
cause of action for eviction under chapter 83 because the parties were not
in a landlord-tenant relationship. The trial court agreed and concluded that
Sachmechi had alleged a cause of action for ejectment, not eviction. It
entered a final order dismissing Sachmechi’s eviction action. Sachmechi
then filed a counterclaim for ejectment in the Nemanis’ circuit court action.1
1
“By statute, county courts exercise jurisdiction to decide actions for eviction,
but circuit courts have exclusive original jurisdiction in ejectment actions.”
Ward v. Estate of Ward,
1 So. 3d 238, 239 (Fla. 1st DCA 2008) (citing §§
2
Upon the county court’s dismissal of the eviction action, the Nemanis
moved for attorney’s fees under § 83.48. In response, Sachmechi moved
for sanctions under § 57.105, arguing that the Nemanis’ claim of entitlement
to attorney’s fees “[was] not supported by the facts or law” because the
Nemanis were not the prevailing party since the eviction action was
proceeding as a claim for ejectment. After a hearing, the county court denied
the Nemanis’ motion for attorney’s fees and Sachmechi’s motion for
sanctions. There is no transcript of this hearing. The Nemanis timely
appealed.
Section 83.48 provides in relevant part:
In any civil action brought to enforce the provisions
of the rental agreement or this part, the party in
whose favor a judgment or decree has been
rendered may recover reasonable attorney fees and
court costs from the nonprevailing party. The right to
attorney fees in this section may not be waived in a
lease agreement.
(Emphasis added). Therefore, an award under § 83.48 is permissive, not
mandatory. And because there is no transcript of the trial court’s hearing for
our review, we cannot say the trial court abused its discretion in denying the
Nemanis’ motion for fees. See Romaguera v. Tr. Mortg., LLC,
238 So. 3d
26.012(2)(f), 83.59(2), Fla. Stat. (2006)); see also Pro-Art Dental Lab, Inc. v.
V-Strategic Grp., LLC,
986 So. 2d 1244, 1250 (Fla. 2008) (“Florida’s county
courts lack subject-matter jurisdiction to entertain ejectment actions.”).
3
394, 395 (Fla. 3d DCA 2018); Applegate v. Barnett Bank of Tallahassee,
377
So. 2d 1150, 1152 (Fla. 1979).
Affirmed.
4
