Creamer v. BAC Home Loans Servicing, LP , 2015 Fla. App. LEXIS 1200 ( 2015 )

IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA
January 30, 2015
TERRY L. CREAMER and DIANA L. )
CREAMER, )
)
Appellants, )
)
v. ) CASE NO. 2D12-2304
)
BAC HOME LOANS SERVICING, LP )
f/k/a COUNTRYWIDE HOME LOANS )
SERVICING, LP, )
)
Appellee. )
_______________________________ )
BY ORDER OF THE COURT:
Upon consideration of Appellants' motion for rehearing, Appellee's motion
for rehearing, and motion for leave to appear as Amicus Curiae for purposes of
rehearing filed by the Ticktin Law Group, P.A.,
IT IS ORDERED that the Appellants' motion for rehearing is denied;
Appellee's motion for rehearing is granted; and the motion for leave to appear filed by
the Ticktin Law Group, P.A., is denied. In order to address an issue raised in the
Appellants' motion for rehearing, we are withdrawing the prior opinion dated August 29,
2014, and the attached opinion is substituted therefor. No further motions for rehearing
will be entertained.
I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER.
JAMES R. BIRKHOLD, CLERK
cc: Richard K. Kosan, Esq.
H. Michael Muniz, Esq.
Timothy Quinones, Esq.
Clerk of Court
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IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
TERRY L. CREAMER and DIANA L. )
CREAMER, )
)
Appellants, )
)
v. ) Case No. 2D12-2304
)
BAC HOME LOANS SERVICING, LP f/k/a )
COUNTRYWIDE HOME LOANS SERVICING, )
LP, )
)
Appellee. )
)
_____________________________________ )
Opinion filed January 30, 2015.
Appeal from the Circuit Court for Polk County;
M. Michael Hunter, Judge.
Richard R. Kosan, Brandon, for Appellant.
H. Michael Muniz of Kahane & Associates,
P.A., Plantation, for Appellee.
DAVIS, Chief Judge.
Terry and Diana Creamer challenge the denial of their motion for costs
and expenses following the dismissal of the foreclosure action brought against them by
BAC Home Loans Servicing. We affirm the denial of the motion in regard to the request
for attorney's fees and the anticipated costs associated with determining the amount of
those fees. We reverse and remand only regarding the remaining costs requested.
BAC voluntarily dismissed the foreclosure action it filed when the parties
reached a settlement. Following this voluntary dismissal, the Creamers filed a motion
for costs and expenses pursuant to Florida Rule of Civil Procedure 1.420. Within this
motion, the Creamers also requested attorney's fees.1 BAC objected, arguing that there
was no prevailing party to which attorney's fees could be awarded because the
voluntary dismissal occurred as part of a settlement agreement between the parties. At
the hearing on this motion, the parties addressed whether the settlement agreement
contemplated the voluntary dismissal as part of its terms and whether the motion sought
costs that included attorney's fees pursuant to rule 1.420(d) or sought attorney's fees
under the prevailing party provisions of section 57.105(7), Florida Statutes, and the
mortgage agreement. The Creamers' attorney argued that he was entitled to attorney's
fees as a cost as defined by the terms of the mortgage, while BAC argued that
attorney's fees were only requested, and were only available, through section 57.105(7).
Following this hearing, the trial court denied the motion.
On appeal the Creamers argue that under rule 1.420(d) the trial court
could not, as a matter of law, make a determination as to a party's entitlement to costs,
but the Creamers acknowledge that any determination regarding the amount of costs
incurred is within the trial court's discretion under the rule. The Creamers rely on Wilson
v. Rose Printing Co., 624 So. 2d 257 (Fla. 1993), to assert that the judicial discretion in
rule 1.420(d) only applies to determinations of amount and for the proposition that
1
The only cost sought by the Creamers other than the inclusion of the
request for attorney's fees is the $85 cost of a court reporter for a summary judgment
hearing that was incurred prior to the settlement and the voluntary dismissal. The
Creamers also anticipated a cost of $750 for bringing in an expert to testify as to the
reasonableness of the costs incurred as attorney's fees.
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where the parties have contractually defined costs to include attorney's fees, such fees
are awardable as costs under rule 1.420(d).
But an examination of the relevant portions of the instant note and
mortgage indicates that the parties did not contractually define costs to include
attorney's fees. In Wilson, the contract referred to "all costs incurred, including
reasonable attorney's fees for such litigation and any subsequent appeals," id. at 258,
whereas the instant mortgage stated that the "[l]ender shall be entitled to collect all
expenses incurred in pursuing the remedies provided in this paragraph 18, including,
but not limited to, reasonable attorneys' fees and costs of title evidence." Additionally,
the costs provision of the note executed by the Creamers further makes the distinction
between costs and expenses such as attorneys' fees by stating that the "Lender may
require Borrower to pay costs and expenses including reasonable and customary
attorneys' fees." Where the language of the parties' agreements do not define fees as
costs, the trial court is correct to deny the award of fees sought as costs pursuant to rule
1.420(d). See Lopez v. Bank of Am., N.A., 2014 WL 1245609, *1 (Fla. 2d DCA Mar. 26,
2014) ("In Wilson, . . . the supreme court observed that the contractual prevailing party
requirement was irrelevant because Rose Printing was seeking fees as part of its
recoverable costs under rule 1.420(d), not under the contract's fee provision. This was
made possible because the parties' contract included attorney's fees in its definition of
costs." (emphasis added) (citation omitted)); cf. Indem. Ins. Co. of N. Am. v. Chambers,
732 So. 2d 1141, 1143 (Fla. 4th DCA 1999) ("[T]he trial court erred in determining that
the provision for prevailing party attorney's fees in the underlying rental contract
included attorney's fees incurred in the event of liability for personal or property
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damage. The contract provided for attorney's fees for collection of charges due under
the agreement; the term 'charges,' in this contract, clearly did not include costs of
reimbursement for personal injury or property damages caused by the renter.").2
Because the written agreements in the instant case refer to costs and
attorney's fees separately, the trial court properly denied the request for attorney's fees
under rule 1.420. This remains true regardless of the other arguments regarding
prevailing parties and preservation debated at the hearing and raised in the parties'
briefs before this court. Accordingly, we affirm the portion of the order denying the
request for attorney's fees based on Wilson. But we also note that although issued after
the hearing in the instant case, this court's holding in Lopez further precludes the award
of attorney's fees to the Creamers under rule 1.420(d) because their pro se answer to
the foreclosure complaint did not plead an entitlement to such attorney's fees. See
2014 WL 1245609 at *2-3.
2
We acknowledge some similarity between the language used in the
Creamer mortgage and that found in the agreement in Fleet Services Corp. v. Reise,
857 So. 2d 273 (Fla. 2d DCA 2003). In that case, the credit application at issue
between the parties stated that "I/we understand that I/we must pay the bank any
expenses it incurs in collecting what I/we owe it, to the extent permitted by law, and that
this includes reasonable attorney's fees and court costs, if the bank sues me to collect."
Id. at 274. The trial court announced its intention to dismiss Fleet's complaint as a
sanction against the attorney, and Fleet immediately filed a notice of voluntary
dismissal. Reise then sought attorney's fees pursuant to section 57.105(2), Florida
Statutes (1997). This court affirmed the awarding of the fees based on the terms of the
contract and the reciprocal provision of section 57.105(2). Although the holding in Fleet
seems to read the term expenses as broadly equivalent to costs and might thereby be
considered applicable to the instant case, we conclude that Fleet is not controlling.
Unlike Fleet, the agreement of the parties as expressed in the instant note clearly
distinguishes between the terms costs and expenses and expressly defines expenses,
but not costs, to include attorney's fees. However, to the extent that the language of
Fleet could be read to suggest that the term expenses in a contract may be read as a
synonym for the word costs under rule 1.420, such language may be overly broad and
is worthy of further consideration in the appropriate case.
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Our affirmance on this issue makes the need for the recovery of the
anticipated $750 costs associated with the expert testimony regarding the
reasonableness of the fees incurred unnecessary. However, at the hearing on the
motion for costs, the Creamers argued that they were entitled under rule 1.420 to the
recovery of the requested $85 in court reporter costs. The trial court's order does not
address that item of costs but rather denies all costs, seemingly only on the basis of the
rule 1.420 attorney's fee issue. Accordingly, we reverse the denial of the entitlement to
the $85 cost and remand for the trial court to consider the Creamers' entitlement to this
cost and its amount.
Affirmed in part, reversed in part, and remanded.
KHOUZAM and BLACK, JJ., Concur.
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