BankUnited, N.A. v. Ajabshir
207 So. 3d 354
| Fla. Dist. Ct. App. | 2016Background
- BankUnited sued Soheila and Mehdi Ajabshir on a residential mortgage foreclosure and sought attorney’s fees under the promissory note.
- Defendants filed pro se answers that did not plead entitlement to attorney’s fees; they later retained counsel but did not amend the answers.
- Defendants’ counsel repeatedly requested attorney’s fees in motions (judgment on pleadings, summary judgment, motions for entitlement) and ultimately obtained summary judgment for defendants.
- BankUnited repeatedly responded to motions and sought rehearing at various stages but did not timely object that defendants had waived fee entitlement by failing to plead it.
- The trial court found defendants entitled to fees, reserved amount, then awarded $38,730 plus prejudgment interest after reducing hours and rate; BankUnited first raised the pleading-waiver objection at the fee-amount hearing.
- The district court affirmed, holding BankUnited waived the pleading objection by acquiescing and failing to timely object; court also affirmed reasonableness of fee amount and prejudgment interest award.
Issues
| Issue | Plaintiff's Argument (BankUnited) | Defendant's Argument (Ajabshir) | Held |
|---|---|---|---|
| Whether failure to plead entitlement to attorney’s fees in answer waives fee claim | Failure to plead entitlement is a waiver; per Stockman fees must be pled | Plaintiffs put BankUnited on notice of fee claim through motions and filings; BankUnited acquiesced | Court held BankUnited waived objection by failing to timely object and acquiescing to defendants’ claim |
| Whether record supports amount of attorney’s fees awarded | Challenged adequacy of evidence supporting fees | Submitted counsel timesheets and affidavit; fee expert testified | Court affirmed fee reductions made by trial court and upheld award as reasonable |
| Whether prejudgment interest on fees was proper | Argued against interest? (raised on appeal generally) | Sought prejudgment interest from date entitlement order was entered | Court affirmed award of prejudgment interest from entitlement order date |
| Procedural: whether other appealed orders merit reversal | Sought reversal of multiple orders | Defendants defended trial court rulings | Court affirmed other orders without detailed discussion |
Key Cases Cited
- Stockman v. Downs, 573 So. 2d 835 (Fla. 1991) (a claim for attorney’s fees must be pled, but notice/acquiescence can waive the pleading requirement)
- Rabbit Hill Homeowners Ass’n v. Cory, 976 So. 2d 663 (Fla. 1st DCA 2008) (party can waive pleading defect when the record shows recognition and acquiescence to fee claim)
- Brown v. Gardens by the Sea S. Condo. Ass’n, 424 So. 2d 181 (Fla. 4th DCA 1983) (party was affirmatively lulled into believing fee claim was known and cannot later object to lack of formal pleading)
- Quality Engineered Installation, Inc. v. Higley S., Inc., 670 So. 2d 929 (Fla. 1996) (prejudgment interest may be awarded on attorney’s fees from the date entitlement is established)