BRUCE FREIMAN, APPELLANT,
v.
NATIONAL CITY MORTGAGE CO., APPELLEE

Fla. 4th DCA | 2015-07-15
No. 4D13-2935
CONNER, J., and HAIMES, DAVID, Associate Judge, concur.
183 So. 3d 1111 Florida District Court of Appeal, Fourth District (2015) Positive Treatment
Cited by 10 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Appellant Freiman appeals a final foreclosure judgment, challenging the trial court's award of attorney's fees to the bank. The court affirmed the foreclosure judgment but reversed the attorney's fee award due to lack of evidentiary support at trial.


Holding

The court affirmed the foreclosure judgment but reversed the attorney's fee award. The court held that the Bank failed to present sufficient competent substantial evidence at trial to support the fee award and that remand was not appropriate because a 2011 affidavit for $3,400 did not constitute competent substantial evidence supporting the different final judgment amount of $43,530.50.


Headnotes

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

[2] An award of attorney's fees must be supported by competent substantial evidence.

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Key Quotes

“We will uphold a trial court's award of attorneys' fees so long as it is supported by substantial, competent evidence.”

Establishes the evidentiary standard for attorney's fee awards on appeal

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Facts & Procedural History

The Bank foreclosed on Appellant Freiman's mortgage following a bench trial in June 2013. The Bank's only witness was its default litigation coordinat…

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Opinion of the Court
DAMOORGIAN, J.

DAMOORGIAN, J.

Appellant, Bruce Freiman, appeals a final judgment of foreclosure entered in favor of National City Mortgage Co. (“the *1112Bank”) following a bench trial. On appeal, Appellant takes issue with the evidence establishing the Bank’s standing to foreclose, compliance with conditions precedent, and attorney’s fees. We reverse the portion of the final judgment awarding the Bank its attorney’s fees, and affirm in all other respects without further comment as to Appellant’s remaining arguments.

This matter was resolved at a bench trial held in June of 2013. At the trial, the Bank’s only witness was its default litigation coordinator and mortgage officer who testified as to Appellant’s loan and payment history and the Bank’s business and loan practices. The witness did not offer any testimony regarding the attorney’s fees incurred by the Bank foreclosing Appellant’s mortgage nor did the Bank introduce any affidavits or other evidence establishing its fees. At the conclusion of the trial, the parties presented the court with their respective proposed final judgments. The Bank’s proposed judgment contained a line item for 176.40 hours of attorney work totaling $43,530.50. After taking the matter under advisement, the court entered the Bank’s proposed judgment without modifying the fee award.

“The standard of review of an award of attorneys’ fees is abuse of discretion.” Diwakar v. Montecito Palm Beach Condo, Ass’n, Inc., 143 So.3d 958, 960 (Fla. 4th DCA 2014). *We will uphold a trial court’s award of attorneys’ fees so long as it is supported by substantial, competent evidence.’ ” Id. (quoting Effective Teleservices, Inc. v. Smith, 132 So.3d 335, 341 (Fla. 4th DCA 2014)).

The Bank concedes that it did not submit sufficient evidence supporting the court’s fee award, but argues that we should remand for additional proceedings to determine its entitlement to fees because there was “some” evidence of its fees in the record. Specifically, it cites to an affidavit it filed in 2011 which establishes that the Bank incurred $3,400 in attorney’s fees for eleven hours of work.

In support of its position, the Bank points to our opinion in Diwakar, where we reversed a fee award that was based only on paralegal testimony. 143 So.3d at 961. However, in doing so, we remanded for additional proceedings because, although it did not admit them into evidence, prior to trial the prevailing party filed the affidavits of its fees expert and attorney establishing the amount of fees awarded. Id. We explained:

Generally, when the record on appeal is devoid of competent substantial evidence to support the attorney’s fee award, the appellate court will reverse the award without remand for additional evidentia-ry findings. However, when the record contains some competent substantial evidence supporting the fee or cost order, yet fails to include some essential evi-dentiary support such as testimony from the attorney performing the services, or testimony from additional expert witnesses, the appellate court will reverse and remand the order for additional findings or an additional hearing, if necessary.

Id (citations omitted) (internal quotation marks omitted).

Diwakar is distinguishable from the instant case because the affidavits filed in Diwakar constituting “some competent substantial evidence supporting the fee” order were filed right before trial and matched the amount of fees ultimately awarded. Id. Conversely, the affidavit relied on by the Bank was filed two years before trial and is for less than a tenth of the amount ultimately awarded. Thus, the 2011 affidavit of fees does not support the entirely different fee award contained in the final judgment. Accordingly, we re*1113verse the portion of the final judgment awarding the Bank its fees without an opportunity for reconsideration on remand.

Affirmed in part and reversed in part.

CONNER, J., and HAIMES, DAVID, Associate Judge, concur.


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Citator

Cited By

  • Newman v. Ocwen Loan Servicing, LLC, 192 So. 3d 498 (Fla. 2d DCA 2016)
    …therefore fundamental error. We disagree.. : . Newman’s' issue with the lack of evidence to support the awarded total for late charges alone does not warrant reversal of the entire foreclosure judgment. See, e.g., Freiman v. Nat’l City Mortg. Co., 183 So. 3d 1111 (Fla. 4th DCA 2015) (affirming foreclosure judgment in part and reversing the unsupported award of attorney fees); Peuguero v. Bank of Am., N.A., 169 So. 3d 1198, 1204 (Fla. 4th DCA 2015) (affirming foreclosure judgment in part and reversing and rem…
  • B & H Miracle, LLC v. Wells Fargo Bank, N.A., 227 So. 3d 238 (Fla. 1st DCA 2017)
    …dence supporting the award of attorney’s fees. In cases such as this where the record contains no competent substantial evidence of fees, the award is properly reversed without remand for taking additional evidence. Freiman v. Nat’l City Mortg. Co., 183 So. 3d 1111, 1112-13 (Fla. 4th DCA 2015). Accordingly, we reverse the award of attorney’s fees without allowing further proceedings. We remand only for the trial court to ‘correct the judgment to reflect that the amount of the deficiency is $221,233.50. KELSE…
  • Forte v. ALL Cnty. Towing Inc. (Fla. 4th DCA 2022)

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