Circuit Civil Court: ATTORNEY'S FEES – COSTS

Circuit Civil Court: ATTORNEY'S FEES – COSTS – Voluntary Dismissal – Loan

Modification Agreement. Generally when Plaintiff voluntarily dismisses action, Defendant is

the prevailing party for attorney's fees. Exception to the rule occurs when the parties have

compromised and effectively agreed to settlement to end the mortgage foreclosure action. See

Kelly v. BankUnited, FSB, 159 So. 3d 403, 405-07 (Fla. 4th DCA 2015)(involving short sale).

Such a compromise occurs when parties enter into a FHA Home Affordable Modification

Program (HAMP) Agreement. In present case, there is no prevailing party for attorney's fees.

However, Defendant is entitled to costs. Wells Fargo Bank, N.A. v. Emad Hanna, No. 12-

003024CI-20 (Fla. 6th Cir. Ct. May 18, 2016).

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

CIVIL DIVISION

WELLS FARGO BANK, N.A.,

Plaintiff, Case No.: 12-003024CI-20

UCN: 522012CA03024XXCICI

EMAD HANNA A/K/A EMAD N.

HANNA; et al.,

Defendants.

________________________________/

ORDER DENYING DEFENDANTS' MOTION FOR ATTORNEY'S FEES; GRANTING

DEFENDANTS' MOTION FOR COSTS; DIRECTIONS TO DEFENDANTS

THIS MATTER came before the Court on Defendants, Emad Hanna and Maggi

Hanna's, "Motion for Attorney's Fees and Costs" filed on October 9, 2015; and Plaintiff,

Wells Fargo Bank, N.A.'s, Response in Opposition to the Motion filed on November 25,

2015. A hearing was conducted on April 27, 2016. Upon consideration of the motion,

the response, the court file, argument of counsels, and applicable law, the Court finds

as follows:

Statement of Case

On March 12, 2012, Wells Fargo Bank, N.A. (the "Bank") filed a Complaint for

mortgage foreclosure. On September 15, 2015, the Bank filed a "Notice of Voluntary

Dismissal Without Prejudice and Discharge of Notice of Lis Pendens." The Notice

states in part:

Wells Fargo Bank, N.A. v. Hanna, Case No. 12-003024CI-20

The parties have entered into a Permanent Loan Modification Agreement. As a

result of said Agreement and in the interest of justice, Plaintiff wishes to

voluntarily dismiss the instant action without prejudice.

This is Plaintiff's first Voluntary Dismissal and thus does not constitute an

adjudication on the merits under Florida Rules of Civil Procedure 1.420(a)(1) and

all parties shall bear their own "fees and costs."

In the pending motion, Emad Hanna and Maggi Hanna (the "Hannas") seek their

attorney's fees and costs under the terms of the Note and Mortgage and section

57.105(7), Florida Statutes (2015). The Hannas assert that based on the Bank's Notice

of Voluntary Dismissal they are the prevailing parties. In response, the Bank points out

that this mortgage foreclosure action was voluntarily dismissed because the parties

entered into a FHA Home Affordable Modification Program (HAMP) Agreement dated

August 19, 2015. (Bank Response, Ex. A). Therefore, it is argued, the Hannas are not

the prevailing parties.

Discussion

Motion for Attorney's Fees

Generally, when a plaintiff voluntarily dismisses an action, the defendant is the

prevailing party. See Tubbs v. Mechanik Nuccio Hearne & Wester, P.A., 125 So. 3d

1034, 1040-41 (Fla. 2d DCA 2013). However, the courts have recognized exceptions to

this general rule with regard to a request for prevailing party attorney's fees. See Kelly

v. BankUnited, FSB, 159 So. 3d 403, 405-07 (Fla. 4th DCA 2015)(discussing Walter D.

Padow, M.D., P.A. v. Knollwood Club Ass'n, 839 So. 2d 744 (Fla. 4th DCA 2003);

Tubbs).

In Padow, during the pendency of the lawsuit, the defendant capitulated to the

demands of the plaintiff and satisfied a substantial portion of the plaintiff's claim for

outstanding financial obligations. The plaintiff later voluntarily dismissed its action. On

motion, the defendant was found not to be the prevailing party. The trial court held:

"[T]o find that Padow was the prevailing party under these circumstances would require

a plaintiff to fight every case to judgment, even though it 'achieved all of the legitimate

goals of [its] suit,' which was not a goal of the legislature in passing the statute."

Padow, 839 So. 2d at 745. The trial court's reasoning was affirmed by the Fourth

District Court of Appeal.

Wells Fargo Bank, N.A. v. Hanna, Case No. 12-003024CI-20

Similarly, in Tubbs, the foreclosure action was voluntarily dismissed because the

plaintiffs' liens were foreclosed by a superior lien against the defendant's property. The

Second District Court of Appeal noted that "the conclusion that neither of the parties

achieved their litigation objectives in that case is inescapable." The appellate court

noted:

Padow teaches that courts must look to the substance of litigation outcomes—

not just procedural maneuvers—in determining the issue of which party has

prevailed in an action. “ ‘[I]t is [the] results, not [the] procedure, which govern the

determination’ of which party prevailed for purposes of awarding attorney's

fees[.]” Bessard v. Bessard, 40 So. 3d 775, 778 (Fla. 3d DCA 2010)(second and

third alterations in original)(quoting Smith v. Adler, 596 So. 2d 696, 697 (Fla. 4th

DCA 1992)).

Tubbs, 125 So. 3d at 1041

The Kelly case is analogous to the present case. During the pendency of the

foreclosure action, a notice of voluntary dismissal was filed because a short sale of

Kelly's real property was accomplished. The present case involves a HAMP Loan

Modification Agreement executed by the parties during the pendency of this foreclosure

action. The sentiments of the Fourth District Court of Appeal in Kelly ring true in both

factual situations:

Therefore, in a situation where both [defendant] and [plaintiff] compromised in

effectively agreeing to a settlement to end their litigation, we will not hold

[plaintiff] responsible for payment of [defendant's] attorneys' fees, as [plaintiff's]

dismissal of the pending complaint following the settlement was the obvious and

appropriate course of action. Where a plaintiff's voluntary dismissal results in

neither party substantially prevailing in the litigation outcome, neither party is the

prevailing party for purposes of attorneys' fees.

Id. 159 So. 3d at 407.

Neither party is the prevailing party in this action for purposes of attorney's fees.

The Hannas' motion for attorney's fees is denied.

Motion for Costs

In Tubbs, the Second District Court of Appeal stated that when a plaintiff files a

notice of voluntary dismissal the issue of taxable costs is considered separately from

the attorney's fee award. Tubbs, 125 So. 3d at 1043-44. In awarding taxable costs to

the defendant, the appellate court noted that Florida Rule of Civil Procedure 1.420(d)

Wells Fargo Bank, N.A. v. Hanna, Case No. 12-003024CI-20

provides in part, "Costs in any action dismissed under this rule shall be assessed and

judgment for costs entered in that action, once the action is concluded as to the party

seeking taxation of costs." (Emphasis added.)

Therefore, upon the Bank filing the Notice of Voluntary Dismissal, the Hannas

became entitled to their taxable costs. See Id. The Hannas' Motion for Costs is

granted.

This Court shall consider the provisions set forth in the Statewide Uniform

Guidelines for Taxation of Costs in Civil Actions (Florida Rules of Civil Procedure,

Appendix II) to determine the costs to be awarded. See In re Amendments to Unif.

Guidelines for Taxation of Costs, 915 So. 2d 612 (Fla. 2005). The taxation of costs in

any particular proceeding is within the broad discretion of the court. Id.; Winter Park

Imports, Inc. v. JM Family Enters., Inc., 77 So. 3d 227, 230 (Fla. 5th DCA 2011).

Accordingly, it is

ORDERED AND ADJUDGED that Defendants, Emad Hanna and Maggi

Hanna's, "Motion for Attorney's Fees" is DENIED.

IT IS FURTHER ORDERED AND ADJUDGED that Defendants, Emad Hanna

and Maggi Hanna's, "Motion for Costs" is GRANTED. Within twenty days of the date

of this order, Defendants shall file and serve a motion to determine the costs to be

awarded and shall file and serve an Affidavit of taxable costs. If the parties cannot

agree to the costs to be awarded, a hearing shall be scheduled at a time convenient to

the parties.

DONE AND ORDERED in Chambers, in Clearwater, Pinellas County, Florida,

this ___ day of May, 2016.

__________________________________

JOHN A. SCHAEFER, Circuit Judge

Copies furnished to:

KELLEY KRONENBERG

MEGAN K GAJEWSKI

1511 N WESTSHORE BLVD, STE 400

TAMPA FL 33607

MICHELLE K HINES

Wells Fargo Bank, N.A. v. Hanna, Case No. 12-003024CI-20

2727 WEST CYPRESS CREEK ROAD

FORT LAUDERDALE FL 33309

JASON PERKINS

450 S ORANGE AVE, STE 500

ORLANDO FL 32801

LEE SEGAL

13575 58TH ST NO, SUITE 140

CLEARWATER FL 33760