Bank of New York Mellon v. Mestre
159 So. 3d 953
| Fla. Dist. Ct. App. | 2015Background
- Bank of New York Mellon sued to foreclose a mortgage against Hector and Veronica Mestre.
- The Mestres moved to strike Bank’s pleadings alleging the mortgage signatures were forged; after an evidentiary hearing the court struck Bank’s pleading with prejudice and found the signatures were not the Mestres’. The court reserved attorney’s fees to be determined later but denied sanctions against counsel.
- Bank sought leave to amend to assert an equitable lien; the trial court issued conflicting August 1, 2013 orders both granting and denying leave to amend; a second judge later entered an order granting leave (which the second judge later attempted to rescind nunc pro tunc).
- The Mestres moved for attorney’s fees; the second judge first entered an order awarding fees, then entered a later contradictory order denying fees; the first judge later vacated the denial as clerical error and reinstated the fee award of $20,068.75.
- Ultimately the court denied Bank’s motion for leave to amend and dismissed the action without prejudice. Bank appealed the attorney’s-fees award. The Mestres did not file an answer brief.
Issues
| Issue | Plaintiff's Argument (Bank) | Defendant's Argument (Mestres) | Held |
|---|---|---|---|
| Whether Mestres were entitled to attorney’s fees under the mortgage contract | Contractual fee clause cannot apply because the mortgage was void due to forgery; no contract exists to support fees | Fees awarded based on the court’s earlier April 29, 2013 order finding entitlement and amount to be determined | Court: No contractual basis—mortgage found forged and void, so contract-based fees precluded |
| Whether statutory authority (§57.105) supports fees | §57.105(7) cannot support fees where contract never existed | Mestres abandoned statutory argument on appeal and relied on court order | Court: No statutory basis shown; Mestres abandoned the statutory claim |
| Whether fees could be awarded under inequitable-conduct / sanction doctrines (Bitterman/Moakley) | Any equitable or sanction award requires express factual findings of bad faith; record lacks such findings | Mestres relied on April 29 order and subsequent orders as grounds for fees; argued entitlement was already determined | Court: Moakley/Bitterman inapplicable—trial court expressly found no improprieties by counsel and declined sanctions; no detailed bad-faith findings |
| Whether the fee orders should be vacated given procedural confusion and conflicting orders | Bank challenged the fee awards as unsupported and procedurally flawed | Mestres relied on trial court rulings awarding fees and on clarification vacating the denial as clerical error | Court: Reversed the attorney’s-fees award and vacated the fee-related orders (April 29, Oct 30, May 1) to the extent they determined entitlement or amount of fees |
Key Cases Cited
- Fla. Dep’t of Corr. v. Schwarz, 134 So.3d 1002 (Fla. 1st DCA 2012) (premature notice of appeal becomes effective upon entry of a later final order)
- Jamnadas v. Singh, 731 So.2d 69 (Fla. 5th DCA 1999) (a forged mortgage is void)
- Se. Bank, N.A. v. Sapp, 554 So.2d 1193 (Fla. 1st DCA 1989) (forged mortgage is a legal nullity)
- Leitman v. Boone, 439 So.2d 318 (Fla. 3d DCA 1983) (if no contract formed, fee provisions cannot be enforced)
- Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla. 1985) (Florida follows American Rule: fees available only by statute or agreement)
- Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990) (modification of Rowe principles)
- Bitterman v. Bitterman, 714 So.2d 356 (Fla. 1998) (inequitable-conduct doctrine may authorize fees absent statute or contract)
- Moakley v. Smallwood, 826 So.2d 221 (Fla. 2002) (attorney-sanction awards require express bad-faith findings and supported factual detail)
- Allegheny Cas. Co. v. Roche Sur., Inc., 885 So.2d 1016 (Fla. 5th DCA 2004) (reversing fee award where Moakley procedures not followed)
- Hinote v. Ford Motor Co., 958 So.2d 1009 (Fla. 1st DCA 2007) (dismissing without leave to amend is a final order)
- Katz v. Van Der Noord, 546 So.2d 1047 (Fla. 1989) (limited circumstances allow recovery of contract fees even if contract later rescinded)
- David v. Richman, 568 So.2d 922 (Fla. 1990) (no contract-based fees where contract was found never to exist)