249 So. 3d 699
Fla. Dist. Ct. App.2018Background
- Pearl Eskin entered Azalea Trace under a residency contract that required a substantial entrance fee and promised partial refund if she died within a set timeframe.
- Mrs. Eskin executed an "Assignment of Reimbursement of Entrance Fee" assigning her refund rights to her children, Nora Matos and Arnold Eskin; the assignment stated it was a separate agreement and not an amendment to the residency contract.
- After Mrs. Eskin died, Azalea Trace paid only a partial refund, asserting offsets for discounted services provided before death.
- The children sued seeking the full refund; they won at summary judgment, and this court previously affirmed in an unpublished decision.
- The trial court later awarded the children trial attorney’s fees, appellate attorney’s fees, and expert costs; Azalea Trace appealed the trial-fee portion.
- The principal legal question: whether the children could recover prevailing-party fees under section 57.105(7) based on a fee clause in the assignment when Azalea Trace was not a signatory/party to that assignment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellees could recover prevailing-party fees under §57.105(7) based on the assignment | The assignment contained a fee/indemnity clause benefiting Azalea Trace, so §57.105(7) makes it reciprocal and allows the children to recover fees | Azalea Trace was not a party to the assignment, and §57.105(7) applies only to parties to the contract containing the fee provision | Reversed trial-fee award: §57.105(7) does not apply because Azalea Trace was not a party to the assignment; trial attorney’s fees vacated |
| Whether the earlier unpublished appellate order resolved §57.105(7) issue via law-of-the-case | Appellees argued prior unpublished order granting appellate fees disposed of fee issues | Azalea Trace noted the prior order did not specify the statutory basis (§768.79 or §57.105(7)) so law-of-the-case is unclear | Court held the unpublished order did not clearly decide §57.105(7), so law-of-the-case did not bind resolution of trial-fee issue |
| Whether appellate attorney’s fees and expert costs were properly awarded | Appellees sought appellate fees and costs and relied on prior appellate order and statutory authority | Azalea Trace challenged calculations and entitlement to trial fees but not the appellate award as inconsistent with prior mandate | Court affirmed appellate attorney’s fees and expert costs award |
| Proper construction of assignment and third-party beneficiary arguments | Appellees argued assignment language and indemnity made Azalea Trace subject to fee reciprocity | Azalea Trace argued mere beneficiary language/approval clause does not make it a contracting party | Court held intent to benefit a third party does not make that third party a contracting party; Mendez controls |
Key Cases Cited
- Johnson v. Omega Ins. Co., 200 So. 3d 1207 (Fla. 2016) (reaffirms American Rule and contractual/statutory bases for fee shifting)
- TGI Friday’s, Inc. v. Dvorak, 663 So. 2d 606 (Fla. 1995) (addressing good-faith elements of offer-of-judgment fee awards)
- BOLD MLP, LLP v. Smith, 201 So. 3d 1261 (Fla. 1st DCA 2016) (standard of review: de novo for contract/fee questions)
- Fla. Dep’t of Transp. v. Juliano, 801 So. 2d 101 (Fla. 2001) (law-of-the-case doctrine and manifest-injustice exception)
- Nationstar Mortg. LLC v. Glass, 219 So. 3d 896 (Fla. 4th DCA 2017) (§57.105(7) requires the claimant be a party to the contract containing the fee provision)
- Fla. Cmty. Bank, N.A. v. Red Rd. Residential, LLC, 197 So. 3d 1112 (Fla. 3d DCA 2016) (§57.105(7) bestows reciprocity only for parties to the contract)
- Bank of New York Mellon Tr. Co., N.A. v. Fitzgerald, 215 So. 3d 116 (Fla. 3d DCA 2017) (§57.105(7) construed strictly because it derogates common law)
- Mendez v. Hampton Court Nursing Ctr., LLC, 203 So. 3d 146 (Fla. 2016) (a contract’s intent to benefit a third party does not make that party a contracting party)