LESLIE ALAN SCHERE, TRUSTEE, AND ARKAD FINANCIAL CORP., A FLORIDA CORPORATION, APPELLANTS,
v.
Z.F., INC., A FLORIDA CORPORATION, ET AL., APPELLEES
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Arkad Financial Corp. and Leslie Alan Schere appealed orders denying their motions for attorney's fees and costs in consolidated foreclosure proceedings. The court reversed in part and affirmed in part, holding that Arkad was entitled to trial-level fees and costs because the foreclosure judgment reserved jurisdiction, but Schere was not because his voluntary dismissal terminated the trial court's jurisdiction, and neither party could recover appellate fees without a court mandate.
Arkad is entitled to additional attorney's fees and costs incurred at the trial level because the foreclosure judgment expressly reserved jurisdiction and provided for reimbursement of subsequent costs. Schere is not entitled to trial fees and costs because his voluntary dismissal terminated the trial court's jurisdiction. Neither Arkad nor Schere may recover appellate attorney's fees absent a mandate from the appellate court awarding such fees.
[1] A trial court retains jurisdiction to award attorney's fees and costs when it expressly reserves jurisdiction in a final judgment of foreclosure.
[2] A voluntary dismissal of a foreclosure action terminates the trial court's jurisdiction to award attorney's fees and costs.
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Join FLexlaw to unlock all legal intelligence“In the final judgment of foreclosure, the trial court expressly reserved jurisdiction to award attorney's fees and provided for reimbursement of subsequent costs.”
Establishes that the trial court retained jurisdiction to award trial-level fees to Arkad because the foreclosure judgment expressly reserved such jurisdiction.
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Join FLexlaw to unlock all legal intelligenceZ.F., Inc. owned a restaurant property encumbered by three mortgages: a first mortgage held by Jefferson National Bank (later assigned to Schere as tr…
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BASKIN, Judge.
In consolidated appeals, Arkad Financial Corporation and Leslie Alan Schere seek to overturn orders denying their motions for attorney’s fees and costs. We reverse in part and affirm in part. Z.F., Inc., owned a restaurant and the lot on which it was located. The property was encumbered by three mortgages: a first mortgage held by Jefferson National Bank, later assigned to Schere, as trustee; a second mortgage held by Ramon Compte and Marta Unhjem, assigned to Arkad; and a third mortgage held by Gerald Tobin.1
Arkad sued to foreclose on its mortgage, naming Z.F. and Tobin as defendants. The trial court entered a final judgment of foreclosure. Tobin appealed the judgment. This court affirmed the foreclosure, Tobin v. Compte, 553 So. 2d 1180 (Fla. 3d DCA 1989), and denied a motion for attorney’s fees. Z.F. did not participate in the appeal.
Arkad subsequently filed a motion for attorney’s fees in the trial court. The trial court granted the motion. When Arkad filed motions requesting additional attorney’s fees incurred at trial, fees for defending the judgment on appeal, and costs, the trial court denied the motions. Arkad filed an appeal.
Schere also instituted foreclosure proceedings against Z.F. and Tobin. Tobin moved to dismiss the action, but the trial court denied the motion; Tobin appealed. Z.F. did not participate in the appeal. This court affirmed, Tobin v. Schere, 546 So. 2d 796 (Fla. 3d DCA 1989), and again denied a motion for attorney’s fees. Thereafter, Schere filed a notice of voluntary dismissal with prejudice, terminating his foreclosure action. Schere subsequently sought costs and attorney’s fees for his services before the trial court and for defending the appeal. The trial court denied the motion, and Schere instituted an appeal. The appeals have been consolidated.
Arkad correctly asserts that it is entitled to additional attorney’s fees and costs incurred at the trial level. In the final judgment of foreclosure, the trial court expressly reserved jurisdiction to award attorney’s fees and provided for reimbursement of subsequent costs. See Patin v. Popino, 459 So. 2d 435 (Fla. 3d DCA 1984). The payment of monies under the judgment of foreclosure does not divest the court of jurisdiction. Canakaris v. Hammond, 455 So. 2d 486 (Fla. 5th DCA 1984). Accordingly, we reverse the order denying Arkad’s motion for trial fees and costs remand for further consideration.
Addressing Schere’s appeal, we affirm the order denying his motion for attorney’s fees and costs. Schere’s voluntary dismissal of his foreclosure action terminated the trial court’s jurisdiction. Randle-Eastern Ambulance Serv., Inc. v. Vasta, 360 So. 2d 68 (Fla.1978), clarified by Miller v. Fortune Ins. Co., 484 So. 2d 1221 (Fla.1986) (while voluntary dismissal removes cause completely from court’s consideration, court can still review motions to correct errors under rule 1.540, Florida Rules of Civil Procedure); Gonzalez v. Turner, 427 So. 2d 1123 (Fla. 3d DCA 1983). Thus, the trial court properly denied the motion for fees and costs.
As to the remaining issue, we conclude that the trial court’s denial of Ar-kad’s and Schere’s motions for appellate attorney’s fees must also be affirmed. The trial court correctly determined that absent a mandate from this court awarding appellate fees, it is without authority to grant them. Hornsby v. Newman, 444 So. 2d 90 (Fla. 4th DCA 1984); Elswick v. Martinez, 394 So. 2d 529 (Fla. 3d DCA 1981).
Reversed in part and remanded, affirmed in part.
. Tobin, Compte and Unhjem are not parties to this appeal.
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Carnival Leisure Indus. Ltd. v. Arviv, 655 So. 2d 177 (Fla. 3d DCA 1995)…(citations omitted). Consequently, the trial court had jurisdiction by virtue of Rule 1.420 to consider the claim for attorney’s fees arising out of the contract between the parties. Carnival relies on this court’s decision in Schere v. Z.F., Inc., 578 So. 2d 739 (Fla. 3d DCA 1991). Reliance on that case is misplaced. There, the plaintiff, Schere, was the dismissing party. After dismissing, plaintiff moved for attorney’s fees and costs. This court concluded that the plaintiffs voluntary dismissal terminated…
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Rohlfs v. Rohlfs, 666 So. 2d 568 (Fla. 3d DCA 1996)…nter an order with appropriate findings.9 In addition, we reverse that portion of the order awarding appellate fees. The absence of an order of this court precludes an award of appellate fees and mandates reversal of the award. Schere v. Z.F., Inc., 578 So. 2d 739 (Fla. 3d DCA 1991). We affirm that portion of the September 16 and October 12 orders which direct the father to pay the mother $9,452.34 plus interest, sums originally due pursuant to a May 4,1994 order. In summary, we affirm the order finding that…
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Sugarman v. Galbut, 693 So. 2d 640 (Fla. 3d DCA 1997)…l for the guardian filed a motion for attorney’s fees. These motions were considered and denied by this court. The trial court was therefore without authority to grant them.2 Louth v. Williams, 643 So. 2d 69 (Fla. 2d DCA 1994); Schere v. Z.F., Inc., 578 So. 2d 739 (Fla. 3d DCA 1991); Garcia v. Garcia, 570 So. 2d 357 (Fla. 3d DCA 1990); Scutti v. Daniel E. Adache & Assoc. Architects, P.A., 515 So. 2d 1023 (Fla. 4th DCA 1987); Gieseke v. Gieseke, 499 So. 2d 839 (Fla. 4th DCA 1986); Elswick v. Martinez, 394 So.…
Authorities Cited
- Randle-Eastern Ambulance Serv., Inc. v. Vasta, 360 So. 2d 68 (Fla. 1978)
- Miller v. Fortune Ins. Co., 484 So. 2d 1221 (Fla. 1986)
- Patin v. Popino, 459 So. 2d 435 (Fla. 3d DCA 1984)
- Hornsby v. Newman, 444 So. 2d 90 (Fla. 4th DCA 1984)
- Gonzalez v. The Honorable Jack M. Turner, 427 So. 2d 1123 (Fla. 3d DCA 1983)
- Elswick v. Martinez, 394 So. 2d 529 (Fla. 3d DCA 1981)
- Canakaris v. The Honorable Kim Hammond, 455 So. 2d 486 (Fla. 5th DCA 1984)
- Tobin v. Schere, 546 So. 2d 796 (Fla. 3d DCA 1989)
- Shaw v. State, 546 So. 2d 796 (Fla. 1st DCA 1989)
- Tobin v. Compte, 544 So. 2d 341 (Fla. 3d DCA 1989)