Sarah Alhassid v. Nationstar Mortgage LLC

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15834
Non-Argument Calendar
________________________
D.C. Docket No. 1:14-cv-20484-BB
SARAH ALHASSID,
on her own behalf and on behalf of all
others similarly situated,
Plaintiff-Appellee,
SARAH DRENNEN,
Plaintiff,
versus
BANK OF AMERICA, N.A., et al.,
Defendants,
NATIONSTAR MORTGAGE LLC,
d.b.a. Champion Mortgage,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 16, 2017)
Before MARCUS, JORDAN and ROSENBAUM, Circuit Judges.
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PER CURIAM:
Defendant-Appellant Nationstar Mortgage LLC (“Nationstar”) appeals from
the district court’s award of $447,446.88 in attorneys’ fees and costs to
Plaintiff-Appellee Sarah Alhassid under the Florida Deceptive and Unfair Trade
Practices Act, Fla. Stat. § 501.201 et seq. (“FDUTPA”), and its amendment of the
award to include $15,090.85 in prejudgment interest. On appeal, Nationstar argues
that: (1) the district court erred in determining that Alhassid was entitled to any
attorneys’ fees and costs, and in awarding an unreasonable amount of fees and
costs; and (2) the district court abused its discretion by amending the judgment to
include prejudgment interest. After careful review, we affirm.
I.
The essential facts are these. Alhassid filed the instant class action in
February 2014, and Sarah Drennen became a co-plaintiff in August 2014. In the
operative complaint, the plaintiffs alleged that they had mortgages owned and
serviced by Bank of America, N.A. (“BOA”) that were transferred to Nationstar,
and that the servicers charged improper fees. Alhassid alleged that BOA placed
her reverse mortgage in default for failure to pay flood insurance, but records
showed she maintained the proper insurance coverage. Despite providing proof of
insurance to resolve the issue, neither servicer updated the loan to reflect that the
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insurance requirement was met. Nationstar commenced a judicial foreclosure
action in state court in January 2014 and charged Alhassid various fees, delinquent
property taxes, and attorneys’ fees. Nationstar dismissed the foreclosure action six
months later. Alhassid raised six claims against Nationstar: three claims breach of
contract for unnecessary fees and foreclosure proceedings (Counts I, II, and III);
breach of the implied covenant of good faith and fair dealing (Count IV); violation
of FDUTPA (Count V); and violation of the Fair Debt Collection Practices Act, 15
U.S.C. § 1692 et seq. (“FDCPA”) (Count VI). Counts I, III, IV, and VI were also
brought on behalf of Drennen. The plaintiffs brought Count IV against BOA.
In March 2015, the plaintiffs settled and dismissed Count IV against BOA,
and the court ordered each party to bear its own fees and costs. The plaintiffs were
denied class certification in July 2015. Drennen settled and dismissed her claims
in October 2015, and the court ordered each party to bear its own fees and costs.
The district court granted Alhassid summary judgment on all counts except Count
IV, because it was duplicative of Counts I, II, and III. Based on Alhassid’s
affidavit, the court found that she incurred $5,000 in actual damages because she
agreed to pay her attorney, Maury Udell, $5,000 to defend against the foreclosure
action. Nationstar did not appeal the November 2015 final judgment that awarded
actual and statutory damages, injunctive relief, and attorneys’ fees and costs.
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Alhassid moved for attorneys’ fees and costs totaling $827,552.82. She
provided sworn affidavits from her attorneys with time sheets detailing the work
performed. A magistrate judge held a hearing on the motions, and recommended
that the district court award Alhassid attorneys’ fees and costs under FDUTPA.
Upon determining that Alhassid was entitled to the award, the magistrate judge
reduced the hourly rate recoverable for associates who worked on the case. She
also determined that a 40% reduction in the number of hours submitted was
appropriate to account for Alhassid’s failed class action attempt, the settlements of
BOA and Drennen, and duplicative or unrecoverable fees. Nationstar objected to
the award calculation, but did not object to Alhassid’s entitlement to fees and costs.
The district court adopted the magistrate judge’s report and recommendation
in part. The court approved the magistrate judge’s recommended 40% reduction in
hours, and applied an additional 5% reduction in hours to account for time spent
defending the state foreclosure action. The district court declined to further reduce
the award of fees and costs because of the protracted nature of the proceedings and
because Alhassid’s attorneys were largely successful in their efforts. The district
court’s final judgment for attorneys’ fees and costs did not include or discuss
prejudgment interest. On Alhassid’s motion, the district court amended the final
judgment to include prejudgment interest using Florida’s statutory interest rate.
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II.
We generally review the award of attorneys’ fees for abuse of discretion.
Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1351 (11th Cir. 2008). “An abuse of
discretion occurs if the judge fails to apply the proper legal standard or to follow
proper procedures in making the determination, or bases an award upon findings of
fact that are clearly erroneous.” ACLU of Ga. v. Barnes, 168 F.3d 423, 427 (11th
Cir. 1999) (11th Cir.1997) (quotation omitted). “A district court’s interpretation of
a state statute is reviewed de novo.” Mega Life & Health Ins. Co. v. Pieniozek,
516 F.3d 985, 989 (11th Cir. 2008).
“Under FDUTPA, the Florida Legislature has declared that deceptive or
unfair methods of competition and practices in trade and commerce are unlawful.”
Diamond Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 362, 367 (Fla. 2013). The
statute provides that a prevailing party is entitled to reasonable attorneys’ fees and
costs in civil litigation arising from a violation of that act. Fla. Stat. § 501.2105(1).
To recover attorneys’ fees, the attorney for the prevailing party must submit a
sworn affidavit regarding the time expended litigating a civil action involving a
FDUTPA claim. See id. § 501.2105(2). The fees recoverable are those devoted to
the entire action, not merely the FDUTPA claim, “unless the attorney’s services
clearly were not related in any way to establishing or defending an alleged
violation of chapter 501.” Diamond Aircraft, 107 So. 3d at 370 (quotation and
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emphasis omitted). Assessing attorneys’ fees under FDUTPA for other portions of
the litigation would be inappropriate “if either (1) counsel admits that the other
services provided in that action were unrelated to the FDUTPA claim, or (2) a
party establishes that the services related to non-FDUTPA claims were clearly
beyond the scope of a 501 proceeding.” Id. (quotation omitted).
Generally, what constitutes a reasonable attorney’s fee is calculated using
the “lodestar” method, taking the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S.
424, 433-34 (1983).1 The “fee applicant bears the burden of establishing
entitlement and documenting the appropriate hours and hourly rates.” Norman v.
Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988). To
meet that burden, “fee counsel should have maintained records to show the time
spent on the different claims, and the general subject matter of the time
expenditures ought to be set out with sufficient particularity so that the district
court can assess the time claimed for each activity.” Id.
In ascertaining the number of hours reasonably expended on the litigation,
the district court should exclude any “excessive, redundant, or otherwise
unnecessary” hours from the amount claimed. Id. at 1301 (quotation omitted).
Thus, the district court may, in its discretion, exclude work performed on unrelated
1
Florida courts use the federal lodestar method to determine appropriate attorneys’ fees.
See Fla. Patient’s Comp. Fund v. Rowe, 472 So. 2d 1145, 1150-1151 (Fla.1985).
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actions. See Hensley, 461 U.S. at 437 & n.12. In general, if a district court
excludes certain hours from the amount expended on the litigation, it should
identify the hours excluded and explain why those hours were disallowed. Villano
v. City of Boynton Beach, 254 F.3d 1302, 1311 (11th Cir. 2001). When faced with
a voluminous fee application, an hour-by-hour review is both impractical and a
waste of judicial resources. Loranger v. Stierheim, 10 F.3d 776, 783 (11th Cir.
1994). Thus, we have approved of across-the-board percentage cuts to the number
of hours claimed. See id.
Once the lodestar has been calculated, there is a strong presumption that the
figure is a reasonable sum. Bivins, 548 F.3d at 1350. However, the court may
adjust the lodestar amount downwards to account for partial success. Norman, 836
F.2d at 1302. Where all theories derive from a common core of operative facts, the
focus should be on the significance of overall results as a function of total
reasonable hours. Popham v. City of Kennesaw, 820 F.2d 1570, 1578 (11th Cir.
1987). When examining the degree of success obtained, “we must compare the
amount of damages sought to the amount awarded.” Gray ex rel. Alexander v.
Bostic, 720 F.3d 887, 894 (11th Cir. 2013). However, a court must “account for all
distinct measures of success when determining whether success was limited.”
Villano, 254 F.3d at 1308.
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Nationstar argues that the district court should have denied the fee request in
its entirety because it included fees concerning class certification, Drennen, BOA,
or the state foreclosure. We disagree. Alhassid complied with the requirements of
FDUTPA by submitting sworn affidavits regarding the time expended litigating the
action. Fla. Stat. § 501.2105(2). She also maintained records to show the time
spent on the claims and set out the time with particularity. Norman, 836 F.2d at
1303. Even if Alhassid’s request sought fees for “excessive, redundant, or
otherwise unnecessary” hours, the district court followed proper procedure by
excluding hours for work performed on other claims and actions. Id. at 1299; see
also Hensley, 461 U.S. at 437 & n.12. Nationstar points out that several courts
have denied fee applications that are grossly inflated. However, even assuming
that an outright denial is permissible, Nationstar has pointed to nothing suggesting
it is required. Thus, it was within the district court’s discretion to award fees
despite any deficiency in Alhassid’s request. Bivins, 548 F.3d at 1351.
Nationstar also argues that Alhassid was not entitled to any fees because
equitable factors weighed in favor of a complete denial. However, Nationstar did
not raise this argument before the district court. Nationstar conceded before the
magistrate judge that Alhassid was entitled to some fees and costs, and it did not
object to the magistrate judge’s discussion of the equitable factors. We’ve
consistently held that issues not raised in the district court will not be considered
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on appeal. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir.
2004). 2 Although Nationstar contends that it raised the issue of entitlement before
the district court, and, therefore, may raise any argument regarding that issue on
appeal, the issue before the district court differed from the issue raised here.
Nationstar requested that the district court sanction Alhassid for filing a deficient
fee request by awarding no fees at all. The issue of sanctions for a deficient filing
is distinct from the issue of whether the characteristics of the case and the parties
warrant a fee award. Accordingly, we will not address this issue.
As to the calculation of the award, Nationstar argues that Alhassid was not
entitled to fees related to the class claims, Drennen, BOA, or the state foreclosure
proceeding because those claims and actions were unrelated to the FDUTPA claim
or otherwise unsuccessful. It acknowledges that the district court reduced the
hours in the lodestar calculation to account for time spent on those claims and
actions, but it argues that the reduction was insufficient. We disagree.
The district court did not misinterpret Florida law and include fees for
services clearly beyond the scope of a FDUTPA proceeding. Diamond Aircraft,
107 So. 3d at 370. Rather, the court reduced the hours in the lodestar calculation to
2
We may address an issue newly raised on appeal if: (1) the issue involves a pure
question of law, and refusal to consider it would result in a miscarriage of justice; (2) the party
had no opportunity to raise the issue in district court; (3) the interest of substantial justice is at
stake; (4) the proper resolution is beyond any doubt; or (5) the issue presents significant
questions of general impact or of great public concern. Id. at 1332. These exceptions are not
present in this case.
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exclude hours spent on the class claims, Drennen claims, BOA claim, and state
foreclosure action. But even if the district court had not excluded those hours, it
would not have been improper under Florida law. All of the claims in the
complaint arguably concerned deceptive and unfair trade practices, and the success
of the FDUTPA claim depended on a determination that the servicers charged
improper fees and initiated unauthorized foreclosure proceedings. Thus, work on
the non-FDUTPA claims, class claims, and state foreclosure proceeding related in
some way to establishing a violation of FDUTPA. Id.
Moreover, it was within the district court’s discretion to make an across-the-
board percentage cut to the hours in the lodestar calculation because Alhassid
submitted over 100 pages of statements that accounted for over 1700 hours of legal
work. See Loranger, 10 F.3d at 783. Nor did the district court abuse its discretion
by declining to accept the reductions requested by Nationstar. The court found that
Nationstar’s proffered spreadsheet for reductions was not reliable because it
contained deficiencies and did not accurately reflect the descriptions of work in
Alhassid’s billing statements. Nationstar has not shown that this finding was
clearly erroneous. ACLU of Ga., 168 F.3d at 427.
Nationstar further claims that the district court should have capped the award
for counsel Udell’s work at $5,000 because the court held on summary judgment
that Alhassid agreed to pay Udell $5,000 for his assistance in the case. Nationstar
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cites Alhassid’s affidavit, which says she agreed to pay Udell $5,000 for his work
on the state foreclosure action and the instant federal suit, and says the district
court based its damages award for breach of contract on the affidavit. Nationstar
adds that the attorneys’ fees award for Udell’s work was improper double recovery
since the court had awarded Udell’s $5,000 fee as damages. We’re unpersuaded.
While Florida courts have held that “in no case should the court-awarded fee
exceed the fee agreement reached by the attorney and his client,” Fla. Patient’s
Comp. Fund, 472 So. 2d at 1151, Alhassid submitted her fee agreement with Udell,
which provided that Udell would assist in the instant action on a contingency-fee
basis. So although Alhassid’s affidavit stated that she agreed to pay Udell $5,000
for his assistance in both the state foreclosure case and the instant case, the actual
agreement clarified that the $5,000 fee was solely for the state foreclosure action.
Because parol evidence is inadmissible to vary or contradict the clear and
unambiguous language of a contract, see J.M. Montgomery Roofing Co. v. Fred
Howland, Inc., 98 So. 2d 484, 485-86 (Fla. 1957), and because the fee agreement
unambiguously provided that Udell would assist in the instant action on a
contingency-fee basis, the district court did not err in concluding that the attorneys’
fees award did not exceed that provided for in the fee agreement. Moreover, the
affidavit was submitted for a different purpose than attorneys’ fees; it was
submitted to determine damages incurred from the breaches of contract, and the
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damages awarded were based on the cost to Alhassid to defend against the state
action. Thus, the district court did not err by considering the submitted fee
agreement.
Moreover, the district court awarded $5,000 as actual damages, not as
attorneys’ fees, and the district court reduced the hours calculated in the lodestar to
exclude hours of work on the state foreclosure action. Thus, Alhassid did not
receive double recovery. Nationstar also argues that Alhassid was judicially
estopped from asserting that Udell worked on a contingency-fee basis, but it did
not raise the doctrine of judicial estoppel below, and, therefore, we will not address
this issue. Access Now, Inc., 385 F.3d at 1331.
We are also unconvinced by Nationstar’s claim that the lodestar should have
been further reduced for Alhassid’s limited success. Courts may adjust the lodestar
to account for partial success, but we strongly presume that the sum is reasonable.
Norman, 836 F.2d at 1302; Bivins, 548 F.3d at 1350. Here, the district court
accounted for partial success by reducing the hours used in the lodestar figure. It
found that Alhassid’s attorneys were largely successful because she obtained relief
on all claims except a duplicative claim, and Alhassid won damages, injunctive
relief, and attorneys’ fees and costs. Nationstar has not shown this finding to be
clearly erroneous. ACLU of Ga., 168 F.3d at 427. Moreover, because a court
must account for all measures of success, the court properly considered the forms
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of relief awarded to Alhassid outside of damages. Id.; Villano, 254 F.3d at 1308.
And, a reduction was not needed to make the fees and costs proportional to the
damages since “[t]here is no express requirement of proportionality between the
amount of the FDUTPA judgment and the attorney’s fees and costs incurred in
obtaining that judgment.” Bull Motors, LLC v. Borders, 132 So. 3d 1158, 1160
(Fla. Dist. Ct. App. 2013). In short, the district court did not abuse its discretion or
misinterpret Florida law in awarding Alhassid fees and costs.
III.
Finally, we review the decision to grant prejudgment interest for abuse of
discretion. Blasland, Bouck & Lee, Inc. v. City of N. Miami, 283 F.3d 1286, 1298
(11th Cir. 2002). The district court did not abuse its discretion in granting
prejudgment interest in this case.
Nationstar argues that Alhassid’s request for prejudgment interest was
untimely because it was not made until after judgment. We disagree. We note that
Alhassid requested prejudgment interest in the operative complaint. But even if
this request did not clearly apply to attorneys’ fees and costs, the
post-judgment request was not untimely under the applicable law. State law
governs the award of prejudgment interest in a diversity case. SEB S.A. v.
Sunbeam Corp., 476 F.3d 1317, 1320 (11th Cir. 2007). Florida courts have held
that prejudgment interest does not have to be pled, and an award of prejudgment
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interest is non-discretionary once the amount of loss is ascertained.
Mercedes-Benz of N. Am., Inc. v. Florescue & Andrews Invs., Inc., 653 So. 2d
1067, 1068 (Fla. Dist. Ct. App. 1995). The Florida Supreme Court has also
recognized that the computation of prejudgment interest is “a mathematical
computation” and a “purely ministerial duty.” Argonaut Ins. Co. v. May Plumbing
Co., 474 So. 2d 212, 215 (Fla. 1985). Thus, the district court did not abuse its
discretion in granting the award despite the timing of Alhassid’s request.
We are also unpersuaded by Nationstar’s argument that an award of
prejudgment interest was inappropriate because it was raised in a Fed. R. Civ. P.
59(e) motion. The Supreme Court has held that a timely post-judgment motion for
discretionary prejudgment interest is a Rule 59(e) motion, and it indicated that the
result would not differ in a case involving prejudgment interest as a matter of right.
Osterneck v. Ernst & Whinney, 489 U.S. 169, 175-78 & n.3 (1989). The Court
concluded that “a postjudgment motion for . . . prejudgment interest involves the
kind of reconsideration of matters encompassed within the merits of a judgment to
which Rule 59(e) was intended to apply.” Id. at 176. Here, Alhassid filed her
motion on the same day that judgment was entered, which was well within the
28-day timeline required under Rule 59(e), and a Rule 59(e) motion was an
appropriate mechanism for Alhassid’s request.
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Nationstar also argues that the award of prejudgment interest was not purely
ministerial because the parties disputed the applicable interest rate. We have
recognized that the calculation of prejudgment interest can be a simple, ministerial
arithmetic calculation if (1) the judgment amount, (2) the prejudgment interest rate,
and (3) the date from which prejudgment interest accrues have been established.
U.S. Sec. & Exch. Comm’n v. Carrillo, 325 F.3d 1268, 1272 (11th Cir. 2003).
However, even if the award was not purely ministerial, it was not an abuse of
discretion for the district court to consider a matter encompassed within the merits
of the judgment. Osterneck, 489 U.S. at 176.
Nor did the district court abuse its discretion by awarding prejudgment
interests on costs, since Florida courts have awarded prejudgment interest on costs.
See Boulis v. Fla. Dep’t of Transp., 733 So. 2d 959, 962-63 (Fla. 1999); Lorillard
Tobacco Co. v. French, 12 So. 3d 786, 787-88 (Fla. Dist. Ct. App. 2009); Danis
Indus. Corp. v. Ground Imp. Techniques, Inc., 629 So. 2d 985, 987-88 (Fla. Dist.
Ct. App. 1993). We also disagree that the district court abused its discretion by
using the Florida interest rate to calculate the award. The district court had both
diversity and federal question jurisdiction, and we have not determined whether
state law or federal law governs interest rates on prejudgment interest in that
circumstance. However, five of Alhassid’s six claims were based in state law, and
the court awarded the underlying attorneys’ fees and costs based on a Florida
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statute. Thus, it was within the district court’s discretion that the interest rate
should be governed by state law. Blasland, Bouck & Lee, Inc., 283 F.3d at 1298.
AFFIRMED.
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