AZALEA TRACE, INC., Appellant, v. NORA MATOS and ARNOLD ESKIN, Appellees.
No. 1D17-753
First District Court of Appeal State of Florida
June 4, 2018
Darlene F. Dickey, Judge.
On appeal from the Circuit Court for Escambia County.
PER CURIAM.
Toward the end of her life, Pearl Eskin moved into Azalea Trace, a nursing home. She signed a residency contract, which required her to pay a substantial entrance fee. The agreement provided that if she died within a certain timeframe, Azalea Trace would refund a portion of the entrance fee. Mrs. Eskin later signed an “Assignment of Reimbursement of Entrance Fee,” through which she assigned her refund rights to her children, appellees Nora Matos and Arnold Eskin. After Mrs. Eskin‘s death triggered the refund obligation, Azalea Trace gave the children only a partial refund, asserting that it could offset certain amounts. The home said it provided discounted services to
The case now comes to us again, the main issue this time being whether the children are entitled to prevailing-party attorney‘s fees for the victory already won. The trial court held that they were, and it awarded the children approximately $27,000 for trial-court attorney‘s fees, approximately $13,500 for appellate attorney‘s fees, and approximately $18,300 in expert costs. We conclude it was error to award fees other than the appellate attorney‘s fees and expert costs, so we reverse in part.
I.
Florida generally follows the American Rule, under which each side pays its own attorney‘s fees. Johnson v. Omega Ins. Co., 200 So. 3d 1207, 1214 (Fla. 2016). Courts can order losing parties to pay victors’ fees, though, if there is a contractual or statutory basis for doing so. Id. at 1214-15. Below, the children asserted two statutory bases to justify a fee award. First, they sought fees under
Under
The trial court awarded fees under this provision, concluding that the assignment document included a prevailing-party fee provision that would have allowed Azalea Trace to recover fees from the children had it prevailed. Thus, the trial court reasoned,
II.
We first consider the children‘s argument that—right or wrong—the fee issue was already decided in the earlier appeal. Under the law-of-the-case doctrine, issues of law actually decided on appeal govern the rest of the proceedings, including
Our unpublished order granting fees in the earlier appeal explained that the children moved for appellate attorney‘s fees “pursuant to either
III.
Florida law is clear that no person can claim fees under
The assignment document itself opens by saying it “is made” by Mrs. Eskin and the children. It recited that Mrs. Eskin “desire[d]” that any reimbursement of her entrance fee “be assigned to and become the property of the” children. It also made clear that the assignment would not modify or otherwise affect the underlying resident agreement: “The Resident/Assignor [Mrs. Eskin] and the Assignee [the children] further acknowledge and agree that this assignment is intended to be a separate agreement between the Resident/Assignor and the Assignee, and it is not intended to be, nor is it an amendment to the Residency Contract.” (emphasis added). Then, on the signature page—and under the line “the parties hereunto subscribe their names“—Mrs. Eskin and the children signed.
To be sure, the assignment accounted for Azalea Trace‘s involvement. The assignment had the parties “acknowledge that such assignment is subject to approval of Azalea Trace, Inc., in its sole discretion,” and it included a line (not on the parties’ signature page) where Azalea Trace‘s executive director “approve[d] the forgoing assignment.” The assignment even reflected the parties’ agreement to provide certain benefits to Azalea Trace, most notably the fee provision at the heart of this appeal: Mrs. Eskin and the children
Because Azalea Trace was not a party to the assignment, it cannot be held accountable for attorney‘s fees under
AFFIRMED in part; REVERSED in part.
JAY, WINSOR, and M.K. THOMAS, JJ., concur.
Not final until disposition of any timely and authorized motion under
Patrick Dervishi of the Shir Law Group, P.A., Boca Raton, for Appellant.
Samuel W. Bearman of the Law Office of Samuel W. Bearman, L.C., Pensacola, for Appellees.
