NORTH DADE CHURCH OF GOD, INC., APPELLANT,
v.
JM STATEWIDE, INC. AND JEC & CM, INC., APPELLEES
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In a mortgage foreclosure dispute, the Florida Third District Court of Appeal affirmed the trial court's rejection of the borrower's usury defense but reversed and remanded the attorney's fee award as excessive, requiring reduction based on principles excluding duplicative work, time spent litigating fee amounts, and unsuccessful issues.
The usury defense was properly rejected because a promissory note provision charging interest on past-due interest is not usurious as it compensates the creditor for forbearance. However, the $17,000 attorney's fee award must be reduced because it exceeded the $15,000 stipulated limit and included noncompensable time for litigating fee amounts, abandoned issues, duplicative work, and excessive ministerial tasks.
[1] A provision in a promissory note calling for the payment of interest on deferred or past-due interest does not make the note usurious.
[2] Attorney's fees are not compensable for time spent litigating the amount of attorney's fees.
Previewing 2 of 6 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“A provision in a promissory note calling for the payment of interest on deferred or past-due interest does not make the note usurious, because computing interest upon interest supplies the place of prompt payment and indemnifies the creditor for his or her forbearance.”
Establishes the rule that interest on accrued interest is not usurious under Florida law
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Join FLexlaw to unlock all legal intelligenceIn 1994, North Dade Church of God borrowed $20,000 from JM Statewide, Inc. as a five-year balloon loan at 8% interest with no payments due until matur…
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PER CURIAM.
The North Dade Church of God, Inc. appeals a final judgment in a mortgage foreclosure case. We affirm in part and reverse in part.
In 1994 the Church borrowed $20,000 from JM Statewide, Inc. This was a five-year balloon loan at 8% interest. No payments were required until the maturity date. On maturity, the Church was to repay the $20,000 plus $8,000 in accrued interest, for a total of $28,000.
The Church did not pay the mortgage when due. JM had in the meantime assigned the loan to JEC & CM, Inc., which sought foreclosure.
The parties entered into a settlement stipulation whereby the Church was allowed time to refinance. The Church was allowed to reserve its defenses to the foreclosure, and approximately $13,000 was escrowed pending resolution of disputes between the parties on the interest and attorney’s fees owed.
The trial court ruled in favor of the lender on the amount of interest owed. The court made a determination of the amount of attorney’s fees the Church must pay on account of the foreclosure action. The Church has appealed.'
The trial court rejected the Church’s usury defense. We entirely agree.
The mortgage note provided, “While in default, and after maturity, this note shall bear interest at the highest legal rate permitted by Florida law from the date of the default or from the date of maturity....” The lender calculated interest at the highest legal rate on the entire overdue balance of $28,000. The Church argued that this made the loan usurious, because interest was being charged on accrued interest. The Church is incorrect.
“A provision in a promissory note calling for the payment of interest on deferred or past-due interest does not make the note usurious, because computing interest upon interest supplies the place of prompt payment and indemnifies the creditor for his or her forbearance.” 82 Fla. Jur.2d Interest and Usury § 73 (2003) (footnote omitted) (citing Morgan v. Mortgage Discount Co., 100 Fla. 124, 129 So. 589 (1930)). Thus, the interest calculation in this case was within legal limits and was not usurious. We also agree with the trial court in rejecting the Church’s equitable defenses to the claim for interest and attorney’s fees.
We do, however, conclude that the attorney’s fee award must be reduced. As a preliminary matter, under the parties’ stipulation, the Church paid an initial $4,000 for attorney’s fees and another $11,000 was escrowed for the additional attorney’s fees and costs claimed by JM and JEC & CM. We agree with the Church that under the wording of the stipulation, the attorney’s fee and cost award cannot exceed these amounts, i.e. a total of $15,000.
Having reviewed the record, we are of the view that the $17,000 amount awarded is excessive. This was a $28,000 mortgage foreclosure in which there was an early settlement, minimal active litigation, and repayment through a refinancing with another lender. It appears that a certain amount of the attorney’s fee award included time spent litigating the amount of attorney’s fees that the lender and assignee were claiming. It is settled that in litigating over attorney’ fees, a litigant may claim fees where entitlement is the issue, but may not claim attorney’s fees incurred in litigating the amount of attorney’s fees. State Farm Fire & Casualty Co. v. Palma, 629 So. 2d 830, 832-33 (Fla.1993); Mangel v. Bob Dance Dodge, Inc., 739 So. 2d 720, 723-24 (Fla. 5th DCA 1999); Oruga Corp., Inc. v. AT & T Wireless of Florida, Inc., 712 So. 2d 1141, 1145 (Fla. 3d DCA 1998); Dept. of Trans. v. Winter Park Golf Club, Inc., 687 So. 2d 970, 971 (Fla. 5th DCA 1997). On remand, the court must delete time attributable to litigating the amount of attorney’s fees claimed.
Attorney’s fees should also not be awarded for an issue on which the moving party was unsuccessful. Here it appears that the lender and assignee attempted to assert a theory of priority over the first mortgage in the case, which was abandoned in the settlement. Attorney’s fees should be deleted which relate to that issue.
The time sheets also reflect a significant amount of time spent in conferences between the partner and the associate who were working on the case as well as multiple attorneys performing or reviewing the same items. Duplicative time charged by multiple attorneys working on the case are generally not compensable. Likewise noncompensable is excessive time spent on simple ministerial tasks such as reviewing documents or filing notices of appearance. Haines v. Sophia, 711 So. 2d 209, 212 (Fla. 4th DCA 1998); Brevard County v. Canaveral Properties, Inc., 696 So. 2d 1244, 1245 (Fla. 5th DCA 1997); Ziontz v. Ocean Trail Unit Owners Ass’n Inc., 663 So. 2d 1334, 1335-36 (Fla. 4th DCA 1993).
We remand the case for a reduction of the attorney’s fee in accordance with the views expressed here. Fees are awarda-ble only for hours reasonably expended, and noncompensable time must be exclud ed.1 Miller v. First American Bank & Trust, 607 So. 2d 483, 484-85 (Fla. 4th DCA 1992); Ziontz, 663 So. 2d at 1336.
Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.2
. The trial court should make the lodestar findings contemplated by Standard Guaranty Ins. Co. v. Quanstrom, 555 So. 2d 828, 834 (Fla.1990). We do not fault the trial court for the absence of such findings after the hearing below because no one requested such findings.
. The Church's final argument, regarding its related claim against JM over a roofing repair, is not ripe for us to express an opinion on.
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Paladyne Corp. v. Weindruch, 867 So. 2d 630 (Fla. 5th DCA 2004)…courts but the First District appear to agree that fees are not awardable for establishing the amount of the fee. See, e.g., Mediplex Const. of Fla. v. Schaub, 856 So. 2d 13 (Fla. 4th DCA 2003); North Dade Church of God, Inc. v. JM Statewide, Inc., 851 So. 2d 194 (Fla. 3d DCA 2003); Barron Chase Sec., Inc. v. Moser, 794 So. 2d 649 (Fla. 2d DCA 2001); Mangel v. Bob Dance Dodge, Inc., 739 So. 2d 720 (Fla. 5th DCA 1999); Seminole County v. Butler, 676 So. 2d 451 (Fla. 5th DCA), review denied, 686 So. 2d 581 (Fl…
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State Farm Fla. Ins. Co. v. Alvarez, 175 So. 3d 352 (Fla. 3d DCA 2015)…who were working on the case as well as multiple attorneys performing or reviewing the same items. Duplicative time charged by multiple attorneys working on the case are generally not compensable.” N. Dade Church of God, Inc. v. JM Statewide, Inc., 851 So. 2d 194, 196 (Fla. 3d DCA 2003). In the second place, an examination of the specific hours claimed raises concerns. The billing reports include items such as ten hours of senior partner time to draft a five-page complaint that appears to be a form complain…
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Baratta v. Valley OAK Homeowners' Ass'n AT THE Vineyards, Inc., 928 So. 2d 495 (Fla. 2d DCA 2006)…ney Constr. Co. v. Martin County, 725 So. 2d 1255, 1258 (Fla. 4th DCA 1999). Thus, as a general rule, dupli-cative time charged by multiple attorneys working on the case is usually not compen-sable. N. Dade Church of God, Inc. v. JM Statewide, Inc., 851 So. 2d 194, 196 (Fla. 3d DCA 2003). In addition, work that is necessitated by the client’s own behavior should more properly be paid by the client than by the opposing party. See Guthrie v. Guthrie, 357 So. 2d 247, 248 (Fla. 4th DCA 1978). Finally, attorney’s…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990)
- State Farm Fire & Cas. Co. v. Palma, 629 So. 2d 830 (Fla. 1993)
- Miller v. First Am. Bank & Tr., 607 So. 2d 483 (Fla. 4th DCA 1992)
- Oruga Corp., Inc. v. AT&T Wireless OF Fla., Inc., 712 So. 2d 1141 (Fla. 3d DCA 1998)
- Murray Ziontz and Suzanne Ziontz v. Ocean Trail Unit Owners Ass'n, Inc., 663 So. 2d 1334 (Fla. 4th DCA 1993)
- Mangel v. BOB Dance Dodge, Inc., 739 So. 2d 720 (Fla. 5th DCA 1999)
- Adeline E. Morgan and C. R. Morgan v. The Mortg. Disc. Co., 100 Fla. 124 (Fla. 1930)
- Chang v. Harris, 687 So. 2d 970 (Fla. 1st DCA 1997)
- Brevard Cnty. v. Canaveral Props., Inc., 696 So. 2d 1244 (Fla. 5th DCA 1997)
- Martin L. Haines, III, Chartered v. Sophia, 711 So. 2d 209 (Fla. 4th DCA 1998)