DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
EARL W. JOHNSTON ROOFING, LLC,
Appellant,
v.
BARBARA HERNANDEZ,
Appellee.
No. 4D19-404
[May 27, 2020]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carlos A. Rodriguez and John B. Bowman, Judges; L.T.
Case No. 17-019935 (02).
Bryce J. Gilbert of Gilbert Law Group, P.A., Hollywood, for appellant.
No appearance filed for appellee.
GERBER, J.
The contractor appeals from the trial court’s order: (1) finding the
homeowner had fully satisfied the contractor’s final judgment, (2)
canceling the foreclosure sale of the homeowner’s property, and (3)
discharging the contractor’s lien against the homeowner’s property. The
contractor also appeals from a successor judge’s order denying the
contractor’s motion for rehearing of the trial court’s order. The contractor
argues the trial court and the successor judge both erred because the
homeowner had not paid the contractor’s attorney’s fees, costs, and pre-
and post-judgment interest incurred in the case.
We conclude that because the homeowner had not paid the contractor’s
attorney’s fees, costs, and pre- and post-judgment interest, the trial court
erred in finding the homeowner had fully satisfied the contractor’s final
judgment, and in discharging the contractor’s lien against the
homeowner’s property. However, the trial court properly canceled the
foreclosure sale of the homeowner’s property. Thus, we affirm in part and
reverse in part the trial court’s order and the successor judge’s order.
We present this opinion in four sections:
1. The proceedings leading to the trial court’s final judgment;
2. The trial court’s post-judgment entry of the satisfaction order;
3. The contractor’s motion for rehearing of the satisfaction order; and
4. Our review of the trial court’s and successor judge’s orders.
1. The Proceedings Leading to the Trial Court’s Final Judgment
The homeowner hired the contractor to provide roofing work on her
property. The parties’ contract included the following provision:
DEFAULT: . . . In the event of a breach of this Contract, the
prevailing party shall be entitled [to recover] from the non-
prevailing party, for any and all collection costs; all costs and
reasonable attorneys fees at all levels of proceedings including
appeals and post-judgment, plus pre-judgment and post-
judgment interest at the highest maximum rate allowed by
law. . . .
The contractor timely completed its obligations under the contract. The
total project cost was $13,668.84. However, the homeowner only paid the
contractor $10,296.28, leaving a $3,372.56 balance owed.
The contractor filed a construction lien against the homeowner’s
property for “$3,372.56 which is accruing at 18% interest [per annum],
plus filing cost, attorney cost and any other costs incurred. . . .” (all caps
deleted). The contractor’s attorney mailed a copy of the claim of lien to the
homeowner with a demand that she pay the $3,372.56 balance owed, plus
the $1,312.50 in the contractor’s attorney’s fees to date, within two weeks
or the contractor would file a lawsuit against the homeowner.
The homeowner did not pay the contractor. Thus, the contractor filed
a complaint against the homeowner. The complaint included claims for
lien foreclosure and breach of contract. The contractor sought payment of
the $3,372.56 balance owed, its attorney’s fees, costs, and pre- and post-
judgment interest, and a foreclosure sale in the event of non-payment.
Before answering the complaint, the homeowner, representing herself,
moved for an extension of time in order to settle a separate case she filed
against her insurer for coverage of the roof damages which the contractor
repaired. The motion indicated she would use the settlement money to
pay the contractor. The trial court granted the motion and gave the
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homeowner thirty days to settle her other case and pay the contractor, or
file an answer within ten days thereafter.
However, within the time allowed, the homeowner did not notify the
contractor she had settled her other case or file an answer. Thus, the
contractor filed a motion for default and final judgment, and set a hearing.
The certificates of service indicated the contractor’s counsel mailed copies
of the motion and notice of hearing to the homeowner’s property address.
The trial court entered the default and default final judgment. The
default final judgment stated, in pertinent part:
1. [The contractor] is the prevailing party in this action on the
following claims to wit: Foreclosure of Construction Lien
[Count I] and Breach of Contract [Count III]. [The contractor]
is entitled to attorneys’ fees and costs pursuant to
Fla. Stat.
§ 713.29 and the Contract.
2. [The contractor] does have and recover from [the
homeowner] a secured judgment on its claim for the principal
amount of $3,372.56, plus reasonable attorneys’ fees and
costs, plus court costs, plus pre and post-judgment interest at
the rate of 18% per annum . . . pursuant to the Contract for
which let execution issue forthwith . . . .
....
4. If the total sum with interest at the rate described in
paragraph 2, all attorneys’ fees, and all costs accrued
subsequent to this judgment are not paid, the clerk of this
court shall sell the property at public sale . . . .
....
8. Jurisdiction of this action is retained to enter further
orders that are proper . . . .
(emphasis in paragraph 2 added). Both the default and final judgment
indicate copies were mailed to the homeowner at her property address.
2. The Trial Court’s Post-Judgment Entry of the Satisfaction Order
Immediately after the trial court entered the default final judgment, the
contractor filed a verified motion to determine the amount of its attorney’s
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fees, costs, and post-judgment interest. The contractor also served
discovery in aid of execution upon the homeowner.
Ten days later, the homeowner filed a motion to stay the discovery in
aid of execution to give her more time to obtain funds to pay the contractor.
The trial court entered an order granting the homeowner’s motion and
staying any further action in the case until a case management conference
could be held eight weeks later.
However, four days after the trial court entered the stay order, the
contractor filed a motion to vacate that order. The contractor stated it
learned the homeowner had settled the case with her insurer six weeks
earlier, and never notified the contractor’s counsel or tried to settle this
case. The trial court granted the contractor’s motion and lifted the stay.
The contractor’s counsel set for hearing the motion to determine the
contractor’s attorney’s fees, costs, and interest. The contractor’s counsel
mailed a copy of the notice of hearing to the homeowner’s property
address. The homeowner appeared at the hearing.
The homeowner testified she had not received copies of the contractor’s
motion for default and final judgment. She then tendered a personal check
to the contractor for the $3,372.56 principal balance. However, the check
did not include the contractor’s attorney’s fees, costs, or interest. The trial
court concluded the hearing without addressing the contractor’s motion
to determine the amount of its attorney’s fees, costs, and interest.
Instead, after the hearing, the circuit court drafted and entered an order
entitled, “Satisfaction of Judgment, Cancelling Foreclosure Sale and Order
Deferring on Plaintiff’s Motions for Attorney Fees.” The order stated:
1. The parties agreed in open court that [the homeowner]
received an insurance check in a separate case . . . in the
amount of $3,372.56. The insurance check was brought to
court this date by [the homeowner] and endorsed as payable
to [the contractor’s] law firm and delivered in open court to
[the contractor].
2. Upon a review of the record, it is clear that the
[homeowner’s] testimony under oath that she had not received
a copy of the Motion for Default and Final Judgment or a copy
of the proposed Final Judgment is supported by the record
because neither the motion for default or final judgment have
a certificate of mailing to [the homeowner]. . . . At this juncture
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the Court finds that there has been a due process violation in
that [the homeowner] was not given notice of these motions or
their content, given that [the homeowner] has never denied
the debt, indicated she would pay as soon as her check was
received even prior to [the contractor] filing suit, and as of
[today’s date], paid in full, this is the rare case where the
violation of due process does not require [further action]
because the matter is resolved.
3. Therefore, the Default Judgment and Foreclosure
Judgment for $3,372.56 is and has been fully satisfied. The
Clerk of Court is directed to show the judgment as satisfied.
4. The Clerk is directed to cancel the foreclosure sale …
and to not reschedule the sale without further order of the
Court.
5. All liens on [the homeowner’s property] from [the
contractor] are hereby Released, Discharged, and Cancelled.
...
....
7. Deferred ruling on [the contractor’s] Verified and
Verified Supplement to Motion for Attorney fees and Vacating
Order Finding Entitlement to fees and costs because upon
entering the Default Final Judgment and Foreclosure
Judgment, the Court accepted [the contractor’s] counsel’s
representation as to . . . fees and found entitlement to attorney
fees based on the “contract.” At the [hearing on the
contractor’s verified motion for attorney’s fees], the court
reviewed [the contractor’s motion and] the exhibits attached
thereto . . . . The [parties’] contract does not contain an
attorney fee provision at all. Therefore, the Verified Motion to
Award Attorney Fees and Costs, a sworn motion, at paragraph
3, as well as [the contractor’s] argument directly conflict with
[the contract] attached to the motion and directly conflict with
the Default Final Judgment and Foreclosure Judgment
submitted by [the contractor]. At best, the representations by
[the contractor’s] counsel were in error or at worst intentional,
willful and contumacious. In either case, it was error for the
Court to retain jurisdiction to award attorney fees based on
the contract. The finding of entitlement to attorney fees in the
Default Final Judgment and Foreclosure Judgment is vacated
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in its’ entirety. . . . The Court reserves jurisdiction to impose
its’ own Section 57.105 sanctions on [the contractor] and/or
counsel if warranted after an evidentiary hearing. . . .
(emphasis in original).
3. The Contractor’s Motion for Rehearing of the Satisfaction Order
The contractor filed a motion for rehearing seeking to vacate the
satisfaction order. The contractor’s motion pointed out several factual
errors in the order:
• Contrary to the trial court’s paragraph 1 finding that “[t]he
insurance check was brought to court this date by [the
homeowner] and endorsed as payable to [the contractor’s] law
firm and delivered in open court to [the contractor],” the
homeowner brought a personal check which had not cleared as
of the date on which the motion for rehearing was filed.
• Contrary to the trial court’s paragraph 2 finding that “neither the
motion for default or final judgment have a certificate of mailing
to [the homeowner],” the motion for default contains the
contractor’s counsel’s certificate of service indicating the motion
had been mailed to the homeowner’s property address, and the
final judgment shows the court sent a copy to the same address.
• Contrary to the trial court’s findings and conclusions in
paragraphs 2 through 5 that the homeowner had “paid in full”
and the final judgment was “fully satisfied,” the homeowner had
not paid the contractor’s attorney’s fees, costs, and pre- and post-
judgment interest to which the contractor was entitled in the final
judgment, and therefore the trial court erred in directing the clerk
of court to show the final judgment as satisfied, cancel the
foreclosure sale, and discharge the contractor’s lien.
• Contrary to the trial court’s paragraph 7 finding, “The contract
does not contain an attorney fee provision at all,” the contract
contained the following provision:
DEFAULT: . . . In the event of a breach of this Contract, the
prevailing party shall be entitled [to recover] from the non-
prevailing party, for any and all collection costs; all costs
and reasonable attorneys fees at all levels of proceedings
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including appeals and post-judgment, plus pre-judgment
and post-judgment interest at the highest maximum rate
allowed by law. . . .
(emphasis added).
After a hearing, the trial court granted the motion for rehearing in part,
only by amending portions of the satisfaction order’s paragraphs 2 and 7:
2. Upon a review of the record, it is clear that the
[homeowner’s] testimony under oath that she had not received
a copy of the Motion for Default and Final Judgment or a copy
of the proposed Final Judgment. is supported by the record
because neither the motion for default or final judgment have
a certificate of mailing to [the homeowner]. . . . At this juncture
the Court finds that there has been a due process violation in
that [the homeowner] was not given notice of these motions or
their content, gGiven that [the homeowner] has never denied
the debt, indicated she would pay as soon as her check was
received even prior to [the contractor] filing suit, and as of
[today’s date], paid in full, this is the rare case where the
violation of due process does not require [further action]
because the matter is resolved.
7. Deferred ruling on [the contractor’s] Verified and
Verified Supplement to Motion for Attorney fees and Vacating
Order Finding Entitlement to fees and costs. because upon
entering the Default Final Judgment and Foreclosure
Judgment, the Court accepted [the contractor’s] counsel’s
representation as to . . . fees and found entitlement to attorney
fees based on the “contract.” . . . The contract does not contain
an attorney fee provision at all. Therefore, the Verified Motion
to Award Attorney Fees and Costs, a sworn motion, at
paragraph 3, as well as [the contractor’s] argument directly
conflict with [the contract] attached to the motion and directly
conflict with the Default Final Judgment and Foreclosure
Judgment submitted by [the contractor]. At best, the
representations by [the contractor’s] counsel were in error or
at worst intentional, willful and contumacious. In either case,
it was error for the Court to retain jurisdiction to award
attorney fees based on the contract. The finding of entitlement
to attorney fees in the Default Final Judgment and
Foreclosure Judgment is vacated in its’ entirety. . . . The Court
reserves jurisdiction to impose its’ own Section 57.105
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sanctions on [the contractor] and/or counsel if warranted
after an evidentiary hearing.
(strikethroughs and underlines added). The amended order also deferred
ruling on “all other matters” until a future case management conference.
The contractor next timely filed a motion to disqualify the trial court.
The contractor alleged it had a reasonable fear the trial court could not act
impartially because the trial court’s satisfaction order, in pertinent part:
(1) was based on arguments which the homeowner had not raised, (2) was
based on multiple incorrect factual findings as shown in the record, (3)
questioned the contractor’s counsel’s credibility and accused the
contractor’s counsel of violating the homeowner’s due process rights based
on the trial court’s incorrect factual findings as shown in the record, (4)
directed the Clerk of Court to show the judgment as satisfied, cancel the
foreclosure sale, and discharge the contractor’s lien without any legal basis
for doing so based on the trial court’s incorrect factual findings; (5) caused
the contractor to move for rehearing and thus incur additional attorney’s
fees which the trial court already indicated it was unwilling to award, and
(6) threatening the contractor and counsel with section 57.105 sanctions
based on the trial court’s incorrect factual findings as shown in the record.
To sum up, the contractor’s motion to disqualify stated, “[The contractor]
can understand mistakes occur, however [the contractor] unequivocally
fears that this Court is demonstrating bias for the [homeowner] and
missing clear representations made in the record in order to benefit [the
homeowner], and cannot proceed forward as an impartial trier of fact.”
The trial court summarily denied the motion to disqualify as legally
insufficient.
The contractor filed a petition for writ of prohibition with this court,
seeking to quash the circuit court’s order denying the contractor’s motion
to disqualify. We entered an order granting the petition and quashing the
trial court’s order denying the motion to disqualify.
On remand, the trial court entered an order granting the contractor’s
motion to disqualify. The clerk of the court randomly reassigned the case
to a successor judge.
The contractor requested the successor judge to set a hearing on its
motion for rehearing to address the remaining errors in the trial court’s
satisfaction order which had not been corrected. See Fla. R. Jud. Admin.
2.330(h) (“Prior factual or legal rulings by a disqualified judge may be
8
reconsidered and vacated or amended by a successor judge based upon a
motion for reconsideration.”).
The successor judge entered an order denying the contractor’s motion
for rehearing, without having held a hearing and without having provided
any explanation for denying the motion. This appeal followed.
4. Our Review of the Trial Court’s and Successor Judge’s Orders
The contractor argues that because the homeowner had not paid its
attorney’s fees, costs, and pre- and post-judgment interest, the trial court
erred in: (1) finding the homeowner had fully satisfied the contractor’s final
judgment, (2) canceling the foreclosure sale of the homeowner’s property,
and (3) discharging the contractor’s lien against the homeowner’s property.
The contractor also argues the successor judge erred in denying the
contractor’s motion for rehearing for the same reason.
We conclude that because the homeowner had not paid the contractor’s
attorney’s fees, costs, and pre- and post-judgment interest, the trial court
erred in finding the homeowner had fully satisfied the contractor’s final
judgment, and in discharging the contractor’s lien against the
homeowner’s property. However, the trial court properly canceled the
foreclosure sale of the homeowner’s property.
The contract contained the following plain-language provision requiring
the non-prevailing party (in this case, the homeowner) to pay the prevailing
party’s reasonable attorney’s fees, costs, and pre- and post-judgment
interest:
DEFAULT: . . . In the event of a breach of this Contract, the
prevailing party shall be entitled [to recover] from the non-
prevailing party, for any and all collection costs; all costs and
reasonable attorneys fees at all levels of proceedings including
appeals and post-judgment, plus pre-judgment and post-
judgment interest at the highest maximum rate allowed by
law. . . .
Further, section 713.29, Florida Statutes (2018), governs attorney’s
fees in a construction lien action, and states, in pertinent part:
In any action brought to enforce a lien . . . under this part, the
prevailing party is entitled to recover a reasonable fee for the
services of [their] attorney for trial and appeal or for
arbitration, in an amount to be determined by the court,
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which fee must be taxed as part of the prevailing party’s costs,
as allowed in equitable actions.
§ 713.29, Fla. Stat. (2018). “Attorney’s fees and costs awarded under
section 713.29 are included within the lien created by section 713.05.”
Parsons v. Whitaker Plumbing of Boca Raton, Inc.,
751 So. 2d 655, 656 (Fla.
4th DCA 1999) (emphasis added).
Here, the contractor obtained a final judgment for the outstanding
$3,372.56 principal plus its attorney’s fees, costs, and pre- and post-
judgment interest. However, at the attorney’s fees hearing, once the
homeowner tendered a person check to the contractor for the $3,372.56
principal balance, the trial court did not determine the amount of the
contractor’s attorney’s fees, costs, and pre- and post-judgment interest.
Instead, the trial court entered its sua sponte order finding the homeowner
had fully satisfied the contractor’s final judgment, canceling the
foreclosure sale of the homeowner’s property, and discharging the
contractor’s lien against the homeowner’s property.
The trial court erred in finding the homeowner had fully satisfied the
contractor’s final judgment, and in discharging the contractor’s lien
against the homeowner’s property. “[A] satisfaction of judgment generally
operates as a complete bar to any effort to alter or amend the final
judgment.” Jankowski v. Dey,
64 So. 3d 183, 187 (Fla. 2d DCA 2011)
(internal quotation marks omitted). “A satisfaction signifies that the
litigation is over, the dispute is settled, the account is paid.” Morris N. Am.,
Inc. v. King,
430 So. 2d 592, 592 (Fla. 4th DCA 1983). Here, the litigation
was not over, the dispute was not settled, and accounts were not paid
because, pursuant to the parties’ contract and section 713.29, the
homeowner still owed the contractor’s attorneys’ fees, costs, and pre- and
post-judgment interest. At best, the trial court should have entered a
partial satisfaction of the final judgment as to the $3,372.56 principal only.
However, the trial court properly canceled the foreclosure sale of the
homeowner’s property. See Parsons,
751 So. 2d at 656 (“[W]here a final
foreclosure judgment reserves jurisdiction to assess attorney’s fees, a
defendant seeking to exercise the right of redemption need not tender an
amount for attorney’s fees in order to be entitled to redemption”).
Based on the foregoing, we affirm in part and reverse in part the trial
court’s satisfaction order and the successor judge’s order denying
rehearing. We remand for the successor judge to: (1) enter a partial
satisfaction of final judgment as to the $3,372.56 principal only; (2) enter
an order directing the clerk of court to re-impose the contractor’s lien
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against the homeowner’s property for the contractor’s unpaid attorneys’
fees, costs, and pre- and post-judgment interest, (3) hold an evidentiary
hearing to determine the amount of the contractor’s attorneys’ fees, costs,
and pre- and post-judgment interest, and (3) enter a subsequent final
judgment containing those determinations and rescheduling the
foreclosure sale of the homeowner’s property in the event the homeowner
does not timely pay those determined amounts in full. See Parsons,
751
So. 2d at 656 (a trial court may enter a subsequent final judgment of
foreclosure for attorney’s fees after a defendant has exercised a right of
redemption as to the original final judgment, which liquidated principal
and interest, but reserved jurisdiction over attorney’s fees and costs).
Affirmed in part, reversed in part, and remanded for proceedings
consistent with this opinion.
GROSS and MAY, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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