Creamer v. BAC Home Loans Servicing, LP
159 So. 3d 168
Fla. Dist. Ct. App.2015Background
- BAC Home Loans Servicing sued Terry and Diana Creamer in a foreclosure action; the parties later settled and BAC voluntarily dismissed the suit.
- After dismissal, the Creamers filed a motion for costs and expenses under Fla. R. Civ. P. 1.420(d), seeking attorney's fees and $85 for a court reporter; they also anticipated a $750 expert cost to prove reasonableness of fees.
- BAC opposed recovery of attorney's fees, arguing no prevailing party existed due to the settlement and that fees were not recoverable under rule 1.420(d).
- The trial court denied the Creamers’ motion in full.
- On appeal, the Creamers argued rule 1.420(d) compels entitlement determinations as a matter of law (amount is discretionary), relying on Wilson v. Rose Printing.
- The appellate court analyzed the mortgage and note language distinguishing "costs" from "expenses/attorney's fees," affirmed denial of attorney's fees, reversed denial as to the $85 court reporter cost, and remanded for determination of that cost.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether attorney's fees can be recovered as "costs" under Fla. R. Civ. P. 1.420(d) after voluntary dismissal/settlement | Creamers: fees are recoverable as "costs" under the mortgage/note and rule 1.420(d); court should decide entitlement as a matter of law | BAC: settlement means no prevailing party; the contract separates fees and costs so fees are not "costs" under rule 1.420(d) | Denied: where contract distinguishes costs and expenses/attorney's fees, fees are not awardable as costs under rule 1.420(d) (affirmed) |
| Whether the trial court must determine entitlement to costs under rule 1.420(d) as a legal matter | Creamers: rule requires entitlement determination; amount is discretionary | BAC: contested entitlement given contractual language and settlement context | Court: Wilson supports that contractual inclusion of attorney's fees in "costs" allows recovery; but here contracts did not include fees as costs, so entitlement to fees denied |
| Whether the Creamers preserved any contract-based or statutory prevailing-party fee claims | Creamers: relied on mortgage/note language and argued entitlement | BAC: argued prevailing-party provisions and preservation were lacking | Court: regardless of other arguments, contractual language controls; pro se pleadings did not preserve rule-based fee claims (Lopez cited) |
| Whether the $85 court reporter fee is recoverable | Creamers: entitled to $85 under rule 1.420 | BAC: trial court denied all costs; did not address this item specifically | Reversed as to $85: remanded for determination of entitlement and amount |
Key Cases Cited
- Wilson v. Rose Printing Co., 624 So. 2d 257 (Fla. 1993) (contracts that define attorney's fees as part of "costs" permit recovery of fees under rule 1.420)
- Indem. Ins. Co. of N. Am. v. Chambers, 732 So. 2d 1141 (Fla. 4th DCA 1999) (contractual fee provisions are limited to their defined scope; fees not included where contract distinguishes charges)
- Fleet Services Corp. v. Reise, 857 So. 2d 273 (Fla. 2d DCA 2003) (contract language calling for recovery of "expenses" interpreted to allow fee recovery in that factual context; court notes limits of its breadth)