EAST WINDS CONSULTING, LLC

v.

SKY HARBOUR CONDOMINIUM ASSOCIATION, INC.

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

EAST WINDS CONSULTING, LLC,

Appellant,

v.

SKY HARBOUR CONDOMINIUM ASSOCIATION, INC.; JO-ANNE M. BAGER; LORI DeSTEFANO; JOSEPH DeSTEFANO; and BECKER & POLIAKOFF, P.A.,

Appellees.

No. 2D2024-0176

March 21, 2025

Appeal from the County Court for Pinellas County; Susan Bedinghaus, Judge.

Michael Farrar of Michael J. Farrar, P.A., Doral, for Appellant.

Gary M. Schaaf and Steven H. Mezer of Becker & Poliakoff, P.A., Tampa, for Appellee Becker & Poliakoff, P.A.

No appearance for remaining Appellees.

PER CURIAM.

Affirmed.

SMITH and LABRIT, JJ., Concur. ATKINSON, J., Dissents with opinion.

East Winds Consulting, LLC, appeals the trial court's order denying its motion for a determination of its entitlement to attorney's fees as sanctions under section 57.105, Florida Statutes (2023). In the motion, East Winds sought an award against nonparties Joseph and Lori DeStefano and their counsel, contending that the motion the DeStefanos filed to vacate the trial court's final judgment and certificate of sale was not supported by the necessary material facts or the application of thenexisting law to the material facts. I would reverse the trial court's order because the DeStefanos' counsel knew or should have known that the claims asserted in the motion to vacate were not supported by the application of then-existing law, entitling East Winds to recover attorney's fees pursuant to section 57.105(1)(b). Background

Sky Harbour Condominium Association, Inc., sued Jo-Anne M. Bager to foreclose a claim of lien on her condominium unit for unpaid assessments. However, Ms. Bager had passed away. The trial court entered an order allowing Sky Harbour to amend its complaint and appointing an attorney ad litem to represent the interests of any unknown heirs to Ms. Bager's estate. The attorney ad litem filed an answer on behalf of the unknown heirs denying the allegations in the amended complaint. The trial court ultimately entered a final judgment of foreclosure in favor of Sky Harbour and scheduled a public foreclosure sale for December 21, 2022. The DeStefanos placed the highest bid and purchased the property at that sale, and they received a certificate of title on January⁴, 2023.

The DeStefanos' winning bid exceeded the amount needed to pay the total amount owed to Sky Harbour, resulting in a surplus of

On March⁹, 2023, the DeStefanos—through their counsel, Becker & Poliakoff, P.A.—filed a motion to vacate the final judgment and the certificate of sale. The motion was later amended but only to modify the introductory paragraph and to add a verification from the DeStefanos that the allegations in the motion were correct. The substance of the motion was unchanged. In the motion, the DeStefanos sought to vacate the trial court's final judgment on the basis that it was void due to defects with service of process and, consequently, they claimed that the certificate of sale "must be voided as well, as a necessary and logical extension of the order vacating the final judgment." They alternatively argued that the trial court should vacate the certificate of sale due to "multiple mistakes." As to the first mistake, the DeStefanos claimed that they relied on the attorney ad litem to identify the heirs to Ms. Bager's estate "before they bid on the Property" but that the attorney ad litem failed to do so. They argued that because those heirs "were not served with process" and at least one heir "was not even named as a Defendant," the heirs' interests in the property had "not been foreclosed" and thus the certificate of title "did not provide the DeStefanos with clean title to the Property." As to the second mistake, the DeStefanos claimed that they bid an amount "sufficient to pay both [Sky Harbour's] final judgment amount and the mortgage encumbering the Property" but that they "mistakenly believed

East Winds responded in opposition to the motion to vacate and, on May 20, 2023, served the DeStefanos with a motion for attorney's fees pursuant to section 57.105, arguing that the motion to vacate and the amended motion to vacate were "not supported by the material facts necessary to establish the claim or defense or would not be supported by the application of then-existing law to those material facts." The trial court held a hearing on the DeStefanos' motion on May 25, 2023. And on June 30, 2023, the trial court entered an order denying the motion to vacate. East Winds then filed its motion for attorney's fees, seeking only a determination of its entitlement to recover attorney's fees for having to defend the DeStefanos' motion to vacate and acknowledging that the amount of fees would be determined at a later point in time. After a hearing, the trial court denied East Winds' motion in an unelaborated order. Analysis

East Winds argues on appeal that the trial court erred by denying its entitlement to attorney's fees under section 57.105 because the DeStefanos' motion to vacate was unsupported by fact and law. "An order denying a motion for attorney's fees and costs under section 57.105 is generally reviewed 'for an abuse of discretion, but if the trial court's determination is based on a legal conclusion, such as the interpretation of a statute or contractual provision, a de novo standard applies.' " Van Sant Law, LLC v. Air Isaac, LLC, 353 So. 3d 106, 108 (Fla. 2d DCA 2022) (quoting Suarez v. Bank of N.Y. Mellon Tr. Co., 325 So. 3d 205, 208 (Fla. 2d DCA 2021)). In this case, the trial court's

I.

Section 57.105(1) provides that [u]pon the court's initiative or motion of any party, the court shall award a reasonable attorney's fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) Was not supported by the material facts necessary to establish the claim or defense; or (b) Would not be supported by the application of thenexisting law to those material facts. § 57.105(1). East Winds argues that "there is no right granted under statute, case, code or rule for a non-party who voluntarily joined the action as a third-party purchaser, and who would be unaffected by the judgment, to vacate the judgment." East Winds further argues that the DeStefanos raised no legally cognizable basis to vacate the certificate of sale. East Winds is correct. The DeStefanos were not parties to the lawsuit. As nonparties, they lacked standing to vacate the final judgment. See Thriving Invs., LLC v. Chao, 184 So. 3d 552, 552 (Fla. 3d DCA 2015) ("The trial court properly held that the third-party purchaser was a stranger to the foreclosure action and lacked standing to vacate the final judgment of foreclosure."); Whiteside v. Sch. Bd. of Escambia Cnty., 798 So. 2d 859, 859–60 (Fla. 1st DCA 2001) ("Under the general rule, one not a party to the case has no standing to request relief from the court."); cf. Edwards v. CIT Bank, N.A., 306 So. 3d 217, 219 (Fla. 3d DCA 2020) ("A non-party

The DeStefanos' motion to vacate the certificate of sale was in part predicated upon a successful vacatur of the final judgment, so in that respect it too was necessarily unsupported by the application of thenexisting law. In their motion to vacate, the DeStefanos cited 90 CWELT- 2008 LLC v. Yacht Club at Portfolio Condominium Ass'n, 245 So. 3d 925 (Fla. 3d DCA 2018), for the proposition that where a final foreclosure judgment is void for lack of service of process, the certificate of sale must be vacated. But in that case, it was a party to the underlying foreclosure

The DeStefanos also claimed that they bid an amount under the mistaken belief that the amount would be used to satisfy both the final judgment and a mortgage on the property. Even presuming that mistaken belief to be true, the "[f]ailure to acquaint oneself with the requirements of a judicial sale cannot constitute an adequate cause to set aside the sale." Sulkowski, 561 So. 2d at 419 (rejecting the appellant's "unilateral misunderstanding of the requirement for a cash deposit" as a legally sufficient mistake to set aside a judicial sale); see also Suntrust Mortg. v. Torrenga, 153 So. 3d 952, 954 (Fla. 4th DCA 2014) ("A party cannot obtain relief from a foreclosure sale 'solely by reference to that party's own lack of diligence.' " (quoting John Crescent, Inc. v. Schwartz, 382 So. 2d 383, 386 (Fla. 4th DCA 1980))). Accordingly, the claims asserted in the motion to vacate the final judgment and certificate of sale were not supported by the application of then-existing law. And because the motion was filed by counsel and unsupported by law, rather than fact, the DeStefanos' counsel knew or should have known the motion was unsupported. See Suarez, 325 So. 3d at 209 ("Ignorance of the law is not a basis to deny fees under section

II.

The DeStefanos have not filed an answer brief in this appeal. However, their counsel below—Becker & Poliakoff, P.A.—has appeared as an appellee on its own behalf. Counsel raises four arguments for affirmance, each of which lacks merit. First, counsel argues in conclusory fashion that "there was a good faith basis in fact and law for proceeding." That argument can be rejected for the reasons discussed above. Even presuming the material facts to be true, the motion to vacate was unsupported by the application of then-existing law. Section 57.105 only refers to "good faith" in reference to two exceptions to an award of fees, but neither of those exceptions applies here. The first exception does not apply because no reasonable person could conclude—nor does counsel argue—that the claims raised in the motion to vacate were "presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success." § 57.105(3)(a). The second exception only applies if counsel "acted in good faith, based on the representations of his or her client as to the existence of those material facts." § 57.105(3)(b). In this case, the infirmities in the motion to vacate were issues of law and did not turn on the existence of any material facts. Perhaps more importantly, counsel does not even attempt to identify any factual representations of the clients on which it could purportedly have relied in good faith. In other words, on appeal counsel has asserted without any support or elaboration that the statutory good

Another argument asserted by counsel to convince this court that the DeStefanos' trial court claims were supported is itself transparently devoid of support. Counsel argues that it "could not have known that the . . . claim was unsupported as the Fourth District Court of Appeal had previously ruled in favor of similar arguments in" Desbrunes v. US Bank National Ass'n, 49 Fla. L. Weekly D373 (Fla. 4th DCA), superseded on reh'g, 385 So. 3d 158 (Fla. 4th DCA 2024), "which was later reversed en banc but initially aligned with the[ir] position on procedural issues." In the Fourth District's original opinion, the court reversed a foreclosure judgment as a legal nullity on the basis that the trial court had improperly appointed an administrator ad litem and guardian ad litem to represent the interests of any unknown heirs to the deceased mortgagor, reasoning that "[f]or a deceased party, the joinder of the estate's legal representative, such as the personal representative, is required" and that a "decedent's heirs are not legal representatives of the decedent." Desbrunes, 49 Fla. L. Weekly at D373. The Fourth District later granted rehearing—not rehearing en banc, as counsel mistakenly contends in its appellate brief—and affirmed the foreclosure judgment because the substitution of the deceased party with a legal representative is unnecessary when the property is the decedent's homestead, as it was in that case. Desbrunes, 385 So. 3d at 159. Counsel is correct insofar as the Fourth District's original Desbrunes opinion might have supported the conclusion that the foreclosure judgment in this case should have been vacated as a legal nullity because the trial court failed to substitute the property owner's legal representative as the party defendant. Even so, the Desbrunes

In this case, the issue of whether the DeStefanos or their counsel knew or should have known that the motion to vacate was unsupported by then-existing law can be resolved by reference to undisputed facts in the record. It is undisputed that the DeStefanos were nonparties to the underlying lawsuit, meaning they were not in the class of persons who were authorized to file motions to vacate judgments under then-existing law. Moreover, what the DeStefanos asserted as grounds to vacate the certificate of sale is not in dispute, as those arguments are memorialized in the motion to vacate that appears on the face of the record. And under then-existing law, those grounds were not legally cognizable grounds to vacate a foreclosure sale. Thus, a transcript from a nonevidentiary hearing is unnecessary to reach the conclusion in this case that the trial court erred by denying East Winds' entitlement to attorney's fees under section 57.105(1)(b). Cf. Overture Realty, LLC v.

The cases cited by counsel in support of its argument that a hearing transcript impedes appellate review are inapposite. Counsel cites Lanson v. Reid, 314 So. 3d 385 (Fla. 3d DCA 2020), for the proposition that in the absence of a hearing transcript "the trial court's findings must be presumed correct." Id. at 388 n.4 (citing Applegate, 377 So. 2d at 1152). The trial court in this case made no factual findings, and no factual determinations were necessary for the trial court's resolution of the case, so there are no such factual findings for this court to presume correct. More fundamentally, transcript or no transcript, the decision of a trial court always bears a presumption of correctness, which is why the appellant in every appeal bears a burden to demonstrate

Counsel's final argument for affirmance is that East Winds served the motion for attorney's fees "less than 21 days before the hearing on the Motion to Vacate," so they "were not provided with the 21-day safe

Often appeals from orders on motions for fees as sanctions present under circumstances requiring this court to show deference to the trial court's determination under an abuse of discretion standard of review. This is not such an appeal. To the contrary, the legal issues determinative of this appeal require de novo review and deference to the mandate in section 57.105 that the court shall award a reasonable attorney's fee . . . on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial . . . [w]ould not be supported by the application of then-existing law to th[e] material facts. § 57.105(1)(b) (emphasis added). The trial court erred by denying East Winds' motion to determine its entitlement to attorney's fees. Therefore, I

Opinion subject to revision prior to official publication.