CATHERINE GERACI AND CHARLES GERACI, HER HUSBAND, APPELLANTS,
v.
ALEX KOZLOSKI AND ANNA KOZLOSKI, HIS WIFE, APPELLEES
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In this mortgage foreclosure appeal, the Geracis challenged the foreclosure judgment on grounds of fraud and misrepresentation in the property sale, seeking rescission. The trial court denied rescission and granted foreclosure, but the appellate court found the attorney's fee award improper and remanded for an evidentiary hearing on that issue.
The trial court properly denied rescission and granted foreclosure based on adequate record support, but the attorney's fee award based solely on an affidavit without cross-examination was improper and must be remanded for an evidentiary hearing.
[1] A trial court's determination of an attorney's fee award in an adversary proceeding, based solely on an affidavit and over the objection of the opposing party, is imprope…
[2] In an adversary proceeding, evidence must be adduced to afford the full range of cross-examination for both parties when determining an attorney's fee award.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In an adversary proceeding such as this the determination of an attorneys fee for the mortgagee based upon affidavits over objection of the mortgagor is improper.”
Establishes the core holding that attorney's fees cannot be awarded based solely on affidavit in adversary proceedings without cross-examination.
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Join FLexlaw to unlock all legal intelligenceThe Geracis purchased property from the Kozloskis and later took out a mortgage, which the Kozloskis foreclosed on. The Geracis defended the foreclosu…
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DOWNEY, Chief Judge.
This is a plenary appeal from a final judgment granting foreclosure of a mortgage on appellants’ property. Although three issues are posed for our decision, only one requires any extended examination.
The thrust of appellants’ defense to the foreclosure is that appellees were guilty of fraud and misrepresentation in the sale of the property involved. Thus, appellants sought rescission of the sale and other relief. We have carefully examined the record and briefs with reference to this issue and find adequate support in the record for the decision of the trial judge denying rescission and ordering foreclosure.
The final judgment of foreclosure awarded appellees an attorneys fee in the amount of $15,000. This fee was assessed by the court based solely upon the affidavit of a lawyer and over the objection of appellants. In an adversary proceeding such as this the determination of an attorneys fee for the mortgagee based upon affidavits over objection of the mortgagor is improper. Evidence should be adduced so that the full range of cross examination will be afforded both parties. Demaso v. Demaso, 345 So. 2d 391 (Fla. 3rd DCA 1977); Thoni v. Thoni, 179 So. 2d 420 (Fla. 3rd DCA 1965); cf. Mullane v. Lorenz, 372 So. 2d 168 (Fla. 4th DCA 1979).
Appellees filed cross assignments of error directed to two orders of the trial court, entered post final judgment on March 29, 1978, and October 3, 1978, and after the notice of appeal from the final judgment was filed. We, of course, cannot review judicial acts of the trial court which take place after the filing of the notice of appeal, unless those judicial acts are themselves made the subject of a new notice of appeal or other appropriate proceeding for appellate review. We note in passing that appellees did perfect an interlocutory appeal from the October 3rd, 1978, order, which is presently pending in this court. Thus, for all intents and purposes the judicial acts involved in that order will be considered in that appellate proceeding.
The final judgment appealed from is affirmed in all respects except as to the provision for attorneys fees. The provision of the judgment regarding attorneys fees is reversed and the cause is remanded with directions to hold an evidentiary hearing in order to determine the appropriate amount of said fees.
AFFIRMED IN PART; REVERSED IN PART, with directions.
GLICKSTEIN and HURLEY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (16 total)
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Rodriguez v. David Campbell, M.D., 720 So. 2d 266 (Fla. 4th DCA 1998)…nce with this opinion”); Tanner v. Tanner, 391 So. 2d 305 (Fla. 4th DCA 1980) (reversing award assessed solely on testimony of attorney claiming fee, absent expert testimony substantiating fee, and remanding for further hearing); Geraci v. Kozloski, 377 So. 2d 811 (Fla. 4th DCA 1979) (reversing portion of final judgment awarding attorney’s fee assessed solely on affidavit of lawyer over objection of opposing party, and remanding with directions to hold evi-dentiary hearing to determine appropriate amount of f…
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Momcilo Velickovich and Zorica Velickovich v. Ricci, 391 So. 2d 258 (Fla. 4th DCA 1980)…urt cannot review judicial acts of a trial court taking place after the filing of a notice of appeal unless those judicial acts are themselves made the subject of a new notice of appeal or other appropriate appellate proceedings. Geraci v. Kozloski, 377 So. 2d 811 (Fla. 4th DCA 1979). Florida Rule of Appellate Procedure 9.110(h) provides: (h) Scope of Review. The court may review any ruling or matter occurring prior to filing of the notice. Multiple final orders may be reviewed by a single notice, if the not…
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Brake v. Eve E. Murphy, 736 So. 2d 745 (Fla. 3d DCA 1999)…w is clear that fees cannot be assessed based solely on the testimony of the attorney claiming the fee, but rather expert testimony must be offered substantiating the fee. See Tanner v. Tanner, 391 So. 2d 305 (Fla. 4th DCA 1980); Geraci v. Kozloski, 377 So. 2d 811 (Fla. 4th DCA 1979); Benitez v. Benitez, 337 So. 2d 408 (Fla. 4th DCA 1976). Second, while proof by way of contemporaneous records is not imperative, something more than wild guesses are necessary to support an award of fees based on reconstructed…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Famous Brands Distribs., Inc. v. Hoke, 179 So. 2d 420 (Fla. 2d DCA 1965)
- Thoni v. Marine Parrish Thoni, 179 So. 2d 420 (Fla. 3d DCA 1965)
- Mullane v. Twylah M. Lorenz, 372 So. 2d 168 (Fla. 4th DCA 1979)
- Demaso v. Demaso, 345 So. 2d 391 (Fla. 3d DCA 1977)