EAST WINDS CONSULTING, LLC, Appellant, v. SKY HARBOUR CONDOMINIUM ASSOCIATION, INC.; JO-ANNE M. BAGER; LORI DeSTEFANO; JOSEPH DeSTEFANO; and BECKER & POLIAKOFF, P.A., Appellees.
No. 2D2024-0176
DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
March 21, 2025
Appeal from the County Court for Pinellas County; Susan Bedinghaus, Judge.
Gary M. Schaaf and Steven H. Mezer of Becker & Poliakoff, P.A., Tampa, for Appellee Becker & Poliakoff, P.A.
No appearance for remaining Appellees.
PER CURIAM.
Affirmed.
SMITH and LABRIT, JJ., Concur.
ATKINSON, J., Dissents with opinion.
East Winds Consulting, LLC, appeals the trial court‘s order denying its motion for a determination of its entitlement to attorney‘s fees as sanctions under
Background
Sky Harbour Condominium Association, Inc., sued Jo-Anne M. Bager to foreclose a claim of lien on her condominium unit for unpaid assessments. However, Ms. Bager had passed away. The trial court entered an order allоwing Sky Harbour to amend its complaint and appointing an attorney ad litem to represent the interests of any unknown heirs to Ms. Bager‘s estate. The attorney ad litem filed an answer on behalf of the unknown heirs denying the allegations in the amended complaint. The trial court ultimately entered a final judgment of foreclosure in favor of Sky Harbour and scheduled a public foreclosure sale for December 21, 2022. The DeStefanos placed the highest bid and purchased the property at that sale, and they received a certificate of title on January 4, 2023.
The DeStefanos’ winning bid exceeded the amount needed to pay the total amount owed to Sky Harbour, resulting in a surplus of
On March 9, 2023, the DeStefanos—through their counsel, Becker & Poliakoff, P.A.—filed a motion to vacate the final judgment and the certificate of sale. The motion was later amended but only to modify the intrоductory paragraph and to add a verification from the DeStefanos that the allegations in the motion were correct. The substance of the motion was unchanged.
In the motion, the DeStefanos sought to vacate the trial court‘s final judgment on the basis that it was void due to defects with service of process and, consequently, they claimed that the certificate of sale “must be voided as well, as a necessary and logical extension of the order vacating the final judgment.” They alternatively argued that the trial court should vacate the cеrtificate of sale due to “multiple mistakes.” As to the first mistake, the DeStefanos claimed that they relied on the attorney ad litem to identify the heirs to Ms. Bager‘s estate “before they bid on the Property” but that the attorney ad litem failed to do so. They argued that because those heirs “were not served with process” and at least one heir “was not even named as a Defendant,” the heirs’ interests in the property had “not been foreclosed” and thus the certificate of title “did not provide the DeStefanos with clean title to the Property.” As to the secоnd mistake, the DeStefanos claimed that they bid an amount “sufficient to pay both [Sky Harbour‘s] final judgment amount and the mortgage encumbering the Property” but that they “mistakenly believed
East Winds responded in opposition to the motion to vacate and, on May 20, 2023, served the DeStefanos with a motion for attorney‘s fees pursuant to
East Winds then filed its motion for attorney‘s fees, seeking only a determination of its entitlement to recover attorney‘s fees for having to defend the DeStefanos’ motion to vacate and acknowledging that the amount of fees would be determined at a later point in time. After a hearing, the trial court denied East Winds’ mоtion in an unelaborated order.
Analysis
East Winds argues on appeal that the trial court erred by denying its entitlement to attorney‘s fees under
I.
[u]pon the court‘s initiative or motion of any party, the court shall award a reasonable attorney‘s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party‘s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party‘s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not suрported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.
The DeStefanos wеre not parties to the lawsuit. As nonparties, they lacked standing to vacate the final judgment. See Thriving Invs., LLC v. Chao, 184 So. 3d 552, 552 (Fla. 3d DCA 2015) (“The trial court properly held that the third-party purchaser was a stranger to the foreclosure action and lacked standing to vacate the final judgment of foreclosure.“); Whiteside v. Sch. Bd. of Escambia Cnty., 798 So. 2d 859, 859–60 (Fla. 1st DCA 2001) (“Under the general rule, one not a party to the case has no standing to request relief from the court.“); cf. Edwards v. CIT Bank, N.A., 306 So. 3d 217, 219 (Fla. 3d DCA 2020) (“A non-party
To bе sure, decisional authority does support that a nonparty purchaser of foreclosed property may have standing under some circumstances. A nonparty purchaser may become a “quasi party” insofar as he or she may seek “relief growing out of his status as purchaser” and appeal any “adverse ruling thereon.” Miller v. Stavros, 174 So. 2d 48, 49 (Fla. 3d DCA 1965); see also Arsali v. Deutsche Bank Nat‘l Tr. Co., 82 So. 3d 833, 835 (Fla. 4th DCA 2011) (“Florida‘s well-settled law recognizes that a third-party purchaser who is not a named party in the action becomes a quasi-party with standing to appeal an adverse ruling.“). Similarly, a nonparty purchaser may have standing to intervene and defend his or her ownership interest when subject to attack. See Carbonell LLC v. N. Am. Trading Grp., Inc., 49 Fla. L. Weekly D2384, D2384 (Fla. 3d DCA Nov. 27, 2024) (concluding a nonparty
The DeStefanos’ motion to vacate the certificate of sale was in part predicated upon a successful vacatur of the final judgment, so in that rеspect it too was necessarily unsupported by the application of then-existing law. In their motion to vacate, the DeStefanos cited 90 CWELT-2008 LLC v. Yacht Club at Portfolio Condominium Ass‘n, 245 So. 3d 925 (Fla. 3d DCA 2018), for the proposition that where a final foreclosure judgment is void for lack of service of process, the certificate of sale must be vacated. But in that case, it was a party to the underlying foreclosure
Though the DeStefanos alternatively requested the trial court to vacate the certificate of sale based on alleged mistakes, then-existing law did not support that request either. “To set aside a sale, a litigant must ‘allege one or more adequate equitable factors and make a proper showing to the trial court that they exist.’ ” Quest Sys., LLC v. Far, 356 So. 3d 300, 302 (Fla. 2d DCA 2023) (quoting Arsali v. Chase Home Fin., LLC, 121 So. 3d 511, 518 (Fla. 2013)). “These equitable factors can include . . . [a] mistake imposed on [the] complainant,” but “the law is well-established that an objection to a foreclosure sale must be directed toward conduct that occurred at, or was directly related to, the foreclosure sale.” Id. (first quoting Sulkowski v. Sulkowski, 561 So. 2d 416, 418 (Fla. 2d DCA 1990); and then quoting Venezia v. Wells Fargo Bank, N.A., 306 So. 3d 1096, 1097 (Fla. 3d DCA 2020)).
The DeStefanos also claimed that they bid an amount under the mistaken belief that the amount would be used to satisfy both the final judgment and a mortgage on the property. Even presuming that mistaken belief to be truе, the “[f]ailure to acquaint oneself with the requirements of a judicial sale cannot constitute an adequate cause to set aside the sale.” Sulkowski, 561 So. 2d at 419 (rejecting the appellant‘s “unilateral misunderstanding of the requirement for a cash deposit” as a legally sufficient mistake to set aside a judicial sale); see also Suntrust Mortg. v. Torrenga, 153 So. 3d 952, 954 (Fla. 4th DCA 2014) (“A party cannot obtain relief from a foreclosure sale ‘solely by reference to that party‘s own lack of diligence.’ ” (quoting John Crescent, Inc. v. Schwartz, 382 So. 2d 383, 386 (Fla. 4th DCA 1980))).
Accordingly, the claims asserted in the motion to vacate the final judgment and certificate of salе were not supported by the application of then-existing law. And because the motion was filed by counsel and unsupported by law, rather than fact, the DeStefanos’ counsel knew or should have known the motion was unsupported. See Suarez, 325 So. 3d at 209 (“Ignorance of the law is not a basis to deny fees under section
II.
The DeStefanos have not filed an answer brief in this appeal. However, their counsel below—Becker & Poliakoff, P.A.—has appeared as an appellee on its own behalf. Counsel raises four arguments for affirmance, each of which lacks merit.
First, counsel argues in conclusory fashion that “there was a good faith basis in fact and law for proceeding.” That argument can be rejected for the reasons discussed above. Even presuming the material facts to be true, the motion to vacate was unsupported by the application of then-existing law.
Another argument asserted by counsel to convince this court that the DeStefanos’ trial court claims were supported is itself transparently devoid of support. Counsel argues that it “could not have known that the . . . claim was unsupported as the Fourth District Court of Appeal had previously ruled in favor of similar arguments in” Desbrunes v. US Bank National Ass‘n, 49 Fla. L. Weekly D373 (Fla. 4th DCA), superseded on reh‘g, 385 So. 3d 158 (Fla. 4th DCA 2024), “which was later reversed en banc but initially aligned with the[ir] position on procedural issues.” In the Fourth District‘s original opinion, the court reversed a foreclosure judgment as a legal nullity on the basis that the trial court had improperly apрointed an administrator ad litem and guardian ad litem to represent the interests of any unknown heirs to the deceased mortgagor, reasoning that “[f]or a deceased party, the joinder of the estate‘s legal representative, such as the personal representative, is required” and that a “decedent‘s heirs are not legal representatives of the decedent.” Desbrunes, 49 Fla. L. Weekly at D373. The Fourth District later granted rehearing—not rehearing en banc, as counsel mistakenly contends in its appellate brief—and affirmed the foreclosure judgment because the substitution оf the deceased party with a legal representative is unnecessary when the property is the decedent‘s homestead, as it was in that case. Desbrunes, 385 So. 3d at 159.
Counsel is correct insofar as the Fourth District‘s original Desbrunes opinion might have supported the conclusion that the foreclosure judgment in this case should have been vacated as a legal nullity because the trial court failed to substitute the property owner‘s legal representative as the party defendant. Even so, the Desbrunes
Additionally, counsel argues that the absence of a transcript from the hearing on East Winds’ motion for attorney‘s fees renders the record inadequate for appellate review. The absence of a transcript ordinarily precludes the appellate court from “properly resolv[ing] the underlying factual issues so as to conclude that the trial court‘s judgment is not supported by the evidence or by an alternate theory.” Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979). But that principle does not apply where, as in this case, the issues raised by the parties implicate issues of law based on undisputed facts that are apparent from the record. See Fish Tale Sales & Serv., Inc. v. Nice, 106 So. 3d 57, 63 (Fla. 2d DCA 2013) (“[B]ecause there is no factual dispute in this case, Applegate is inapposite.“); Martin v. Dep‘t of Revenue ex rel. Martin, 827 So. 2d 367, 368 (Fla. 2d DCA 2002) (”Applegate is inapposite because there is no fаctual dispute in this case; the issue is whether Martin‘s amended petition is timely as a matter of law.“); Evans v. Diaz, 365 So. 3d 1176, 1178 (Fla. 4th DCA 2023) (“While the appellant has not
In this case, the issue of whether the DeStefanos or their counsel knew or should have known that the motion to vacate was unsupported by then-existing law can be resolved by reference to undisputed facts in the record. It is undisputed that the DeStefanos were nonparties to the underlying lawsuit, meaning they were not in the class of persons who were authorized to file motions to vacate judgments under then-existing law. Moreover, what the DeStefanos asserted as grounds to vacate the certificate of sale is not in dispute, as those arguments are memorialized in the motion to vacate that appears on the face of the record. And under then-existing law, those grounds were not legally cognizable grounds to vacate a foreclosure sale. Thus, a transcript from a nonevidentiary hearing is unnecessary to reach the conclusion in this case that the trial court erred by denying East Winds’ entitlement to attorney‘s fees under
The cases cited by counsel in support of its argument that a hearing transcript impedes appellate review are inapposite. Counsel cites Lanson v. Reid, 314 So. 3d 385 (Fla. 3d DCA 2020), for the proposition that in the absence of a hearing transcript “the trial court‘s findings must be presumed correct.” Id. at 388 n.4 (citing Applegate, 377 So. 2d at 1152). The trial court in this case made no factual findings, and no factual determinations were necessary for the trial court‘s resolution of the case, so there are no such factual findings for this court to presume correct. More fundamentally, transcript or no transcript, the decision of a trial court always bears a presumption of correctness, which is why the appellant in every appeal bears a burden to demonstrate
Counsel also misplaces reliance on Raza v. Deutsche Bank National Trust Co., 100 So. 3d 121 (Fla. 2d DCA 2012), which involved appellate review of the trial court‘s discretionary decision at a hearing concerning the amount of prevailing party attorney‘s fees to be awarded, including the question of whether Mr. Raza met his “evidentiary burden” to “prove a reasonable fee.” Id. at 125. This court noted that “even if Mr. Raza did present sufficient evidence [to prove a reasonable amount of attorney‘s fees], the amount of fees remains in the trial court‘s discretion.” Id. at 126 (citing DiStefano Constr., Inc. v. Fid. & Deposit Co. of Md., 597 So. 2d 248, 250 (Fla. 1992)). But the only way this court could review the trial court‘s exercise of its discretion in that case was to “look to the record to determine if ‘there [was] competent substantial evidence which support[ed] the trial court‘s order under the totality of the circumstances.’ ” Id. (quoting Grapski v. City of Alachua, 134 So. 3d 987, 989 (Fla. 1st DCA 2012)). Because the appellant failed to produce a transcript from the hearing at which the trial court considered the evidence and exercised its discretion to deny the motion and award no fees, the absence of a transcript impeded appellate review. Id. at 126–27.
Counsel‘s reliance on Bank One, Corp. v. Bornschein, 987 So. 2d 172 (Fla. 4th DCA 2008), is also misplaced. In Bornschein, the Fourth District affirmed a trial court‘s order denying a motion for attorney‘s fees:
The appellant challenges the trial court‘s denial of his motion for attorney‘s fеes based upon both an offer of settlement and
section 57.105, Florida Statutes . While the order does not make any findings of fact as to whether the offer qualified or was made in good faith, such findings are not required under the offer of judgment statute. Evans v. Piotraczk, 724 So. 2d 1210, 1213 (Fla. 5th DCA 1998). There is no transcript of the hearing where the court denied the motion, and we cannot determine whether the trial court‘s ruling was an abuse of its discretion. Without this we must affirm. Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979).
Id. at 172. The above quotation is the entirety of the Bank One opinion. Of what little context the opinion does provide—other than that the appellant sought fees under
Counsel‘s final argument for affirmance is that East Winds served the motion for attorney‘s fees “less than 21 days before the hearing on the Motion to Vacate,” so they “were not provided with the 21-day safe
Conclusion
Often appeals from orders on motions for fees as sanctions present under circumstances requiring this court to show deference to the trial court‘s determination under an abuse of discretion standard of review. This is not such an аppeal. To the contrary, the legal issues determinative of this appeal require de novo review and deference to the mandate in
the court shall award a reasonable attorney‘s fee . . . on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party‘s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial . . . [w]ould not be supported by the application of then-existing law to th[e] material facts.
Opinion subject to revision prior to official publication.
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