Barbara Colomar v. Mercy Hospital Inc. , 335 F. App'x 29 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-16117 JUNE 11, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 05-22409-CV-PAS
BARBARA COLOMAR,
Plaintiff-Appellee,
versus
MERCY HOSPITAL, INC.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 11, 2009)
Before BIRCH, HULL and COX, Circuit Judges.
PER CURIAM:
Barbara Colomar brought a putative class action lawsuit against Mercy
Hospital, Inc., and Catholic Health East, Inc. asserting, among other things, a
violation of the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. §
501.201 et seq. The district court eventually denied class action certification and
granted summary judgment to Catholic Health and Mercy. Mercy then moved for
attorney’s fees and costs under the Florida Deceptive and Unfair Trade Practices Act
(FDUTPA), Fla. Stat. § 501.2105(1), 28 U.S.C. § 1927, and Fed. R. Civ. P. 54(d)(1).
The magistrate judge recommended that the motion be denied in its entirety. (R.8-
259 at 9.) The district court denied the motion to the extent that it sought fees and
costs under the FDUTPA and 28 U.S.C. § 1927, but granted the motion to the extent
that it sought costs under Rule 54(d)(1), and accordingly awarded Mercy $8,268.46
in costs. (R.8-269 at 11.)
Mercy appeals, challenging the denial of its motion for attorney’s fees under
the FDUTPA.
Mercy first argues that the denial of its motion for fees was erroneous because
the district court failed to consider relevant evidence, namely, that Colomar’s counsel
agreed in a “Rights Agreement” to pay any award of fees or costs incurred by her in
the class action suit. The parties disagree as to what standard of review should
govern this issue. Mercy argues that a harmful error standard of review applies
because it only seeks consideration of whether the district court erred in not
considering relevant evidence, while Colomar argues that this court reviews awards
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(or denials) of attorney’s fees for an abuse of discretion. While Mercy appears to
disagree with the manner in which the district court weighed some factors (i.e.
Appellant’s Br. at 24 n.12; 26 n.13), Mercy unequivocally argues that it seeks review
only of the district court’s complete failure to consider evidence that was offered and
reasonably likely to affect the trial court’s decision. (Appellant’s Reply Br. at 6.)
Mercy’s argument that the district court erred in not considering the Rights
Agreement is not persuasive because the district court did consider the Rights
Agreement. The district court evaluated the seven factors set forth in Humane Soc’y
of Broward County, Inc. v. Fla. Humane Soc’y, 951 So.2d 966, 971 (Fla. Dist. Ct.
App. 2007) in determining whether fees and costs should be awarded under the
FDUTPA. In considering the second factor, “the ability of the opposing party to
satisfy an award of fees,” the court first noted that, “it is undisputed that Ms. Colomar
lacks the financial resources to personally satisfy the requested fee and cost
judgment.” (R.8-269 at 4.) The district court observed, however, that a Rights
Agreement existed between Colomar and her counsel that appeared to require her
counsel to pay any fees and costs awarded under the FDUTPA. After carefully
considering the arguments put forward by both Mercy and Colomar regarding the
enforceability of the Rights Agreement, the district court concluded that Colomar
could “potentially satisfy the requested fee and cost judgment through her Counsel,”
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and thus the factor was neutral and did not favor awarding or denying fees. (Id. at 5.)
Accordingly, the district court did consider the Rights Agreement, and as a result of
considering it, found that a factor that would have weighed in favor of Colomar,
absent the Rights Agreement, was instead neutral. Mercy’s argument that the district
court failed to consider the Rights Agreement is meritless.
Mercy next argues that the district court erred in “requiring that Mercy show
that Mrs. Colomar had conducted this lawsuit in ‘bad faith’ to recover an award of
fees” under the FDUTPA. (Appellant’s Br. at 1.) The parties disagree on the
standard of review. Mercy argues that we review a district court’s interpretation of
a state law de novo, while Colomar contends that we review an award of attorney’s
fees for an abuse of discretion. Because Mercy’s argument on this issue is not that
the district court improperly weighed the factors, but rather that the district court
improperly interpreted Florida law, we agree with Mercy that the standard of review
is de novo. See Jones v. United Space Alliance, L.L.C., 494 F.3d 1306, 1309 (11th
Cir. 2007) (de novo review of district court’s interpretation of state law).
Florida law permits a court determining whether to award fees under the
FDUTPA to consider a party’s bad faith (or lack of bad faith). The Florida District
Court of Appeals has held that one of the factors a court should consider is “the
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degree of the opposing party’s culpability or bad faith.”1 Humane Soc’y, 951 So.2d
at 971. Additionally, the court in Humane Soc’y clearly stated that a court could
consider factors other than those listed. Id. (“In exercising its discretion, factors that
a trial court might consider include, but are not limited to . . . .”) The district court did
not err in its interpretation of Florida law when it considered Colomar’s lack of bad
faith in refusing to award fees under the FDUTPA.
Having considered the only two arguments Mercy makes on appeal, and
finding them both to be without merit, we affirm the district court’s denial of Mercy’s
motion for fees and costs under the FDUTPA.
AFFIRMED.
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We reject Mercy’s argument that “the Humane Society factor that references the opposing
party’s ‘degree of . . . culpability or bad faith,’ . . . must refer to the party’s ‘bad faith’ conduct that
precipitated the FDUTPA claim, e.g., evidence that the defendant violated FDUTPA in ‘bad faith.’”
(Appellant’s Br. at 27-28.)
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