PAUL R. MESSER AND BETTY J. MESSER, APPELLANT,
v.
MARK JAMES SANDER AND JULIA DILS SANDER, HIS WIFE, APPELLEES

Fla. 1st DCA | 2016-01-06
No. 1D15-1349
ROBERTS, C. J.; THOMAS and RAY,' JJ., concur.
182 So. 3d 795 Florida District Court of Appeal, First District (2016) Positive Treatment
Cited by 1 case

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Synopsis

In a dispute over a statutory easement by necessity, the appellate court affirmed the trial court's denial of trial-level attorney's fees but reversed the grant of appellate-level attorney's fees, holding that the Appellees did not unreasonably refuse to comply with the easement statute at either level.


Holding

The trial court properly denied trial-level attorney's fees because the Messers acted unreasonably. However, the trial court improperly granted appellate-level attorney's fees because the Sanders did not unreasonably refuse to grant the easement after the initial trial court ruling against the Messers.


Headnotes

[1] A trial court's denial of attorney's fees and costs is reviewed for an abuse of discretion.

[2] Attorney's fees and costs may be awarded to either party for unreasonable refusal to comply with statutory easement provisions.

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Key Quotes

“attorney's fees and costs are owed to either party for 'unreasonable refusal to comply with the provisions of section 704.01(2).'”

States the governing standard for attorney's fees under the easement statute

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Facts & Procedural History

The Messers filed an action seeking a statutory easement by necessity against the Sanders. The trial court initially ruled against the Messers. On the…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The Appellants, Paul Messer and Betty Messer, seek review of the trial court’s final judgment on remand that denied their-motion for trial-level attornéy’s fees and costs. In a cross-appeal, the Appel-lees, Mark Sander and Julia Sander, seek review of the trial- court’s final judgment on remand that granted the Appellants’ motion for appellate-level attorney’s fees. We find that the trial court properly denied thé Appellants’ motion for trial-level attorney fees and improperly granted the Appellants’ motion for appellate-level attorney fees.

This appeal stems from an action for declaratory judgment filed by the Appellants against the Appellees for a statutory easement by way of necessity pursuant to section 704.01(2), Florida Statute (2014). The trial court found that the Appellants were not entitled to a statutory easement and ordered the Appellants to pay the Appellees’ attorney’s fees and costs. On appeal, this Court reversed and remanded the final judgment after holding the Appellants were entitled to a statutory easement. This .Court also provisionally granted the .Appellants’ motion for appellate-level attorney’s fees and remanded the issue to the trial court to determine .whether the Appellants were entitled to attorney’s fees pursuant to the governing statute, which provides that attorney’s fees *797and costs are owed to either party for “unreasonable refusal to comply” with the provisions of the easement statute. § 704.04, Fla. Stat. (2014). On remand, the trial court entered a final judgment in accordance with this Court’s holding and awarded the Appellants appellate-level attorney’s fees and costs, but the trial court did not award trial-level attorney’s. fees and costs, after finding the Appellants unreasonably refused to comply with- the easement statute.

This Court reviews a denial of an appellant’s motion for attorney’s fees and costs'under the abuse of discretion standard. See Fla. State Univ., Bd. of Trs. v. Monk, 112 So.3d 173, 173-74 (Fla. 1st DCA 2013) (Mem.); Moore v. Hillsbor-ough. Cty. Sch. Bd., 987 So.2d 1288, 1289 (Fla. 1st DCA 2008). Section 704.04 provides that attorney’s fees and costs are owed to either party for “unreasonable refusal to comply with the provisions of section] 704.01(2).” § 704.04, Fla. Stat. (2014). Here, in the final judgment on remand, the court did not explain how it reached the conclusion of law that the parties acted reasonably at the trial level. However, in its findings of fact, the court found that (1) the Appellees had expended thousands of dollars- to improve and maintain the easement and the Appellants had not contributed to the improvement or maintenance of the easement;1 (2) the Appellants had rarely used the road in the past 20 years and the Appellees did not tell the Appellants they were not allowed to use the road; and (3) the Appellants never offered to compensate the Appellees for the easement until the case was re: manded. While there was evidence that both parties behaved unreasonably, these findings provide competent,- substantial evidence to support the court’s conclusion that the Appellants were not due trial-level attorney’s fees and costs because they act-' ed unreasonably.

As to appellate attorney’s fees, it was not unreasonable for the Appellees, after the trial court ruled the Appellants were not entitled to an easement, to then not grant the Appellants an easement. In fact, it would have been unreasonable if they had done so.

We AFFIRM the denial of the Appellants’ motion for trial-level attorney’s fees, and REVERSE the trial court’s final judgment on remand that granted .the Appellants’ motion for appellate-level attorney’s fees.

ROBERTS, C. J.; THOMAS and RAY,' JJ., concur.


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  • Babun v. Stok KON + Braverman (Fla. 3d DCA 2021)
    …e. Universal Prop. & Cas. Ins. Co. v. Deshplande, 314 So. 3d 416, 420 (Fla. 3d DCA 2020); Pazmino v. Gonzalez, 273 So. 3d 1056, 1059 (Fla. 3d DCA 2019). The same standard of appellate review applies to review of orders on costs. Messer v. Sander, 182 So. 3d 795, 797 (Fla. 1st DCA 2016); Cornfeld v. Plaza of the Americas Club, Inc., 306 So. 3d 1136, 1139 (Fla. 3d DCA 2020). Discussion Florida law provides that in all probate proceedings, any attorney who has rendered services to the estate may be awa…

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