Destination Boat Clubs, Inc. v. Island Breeze Boat Club & Rental Inc. , 226 So. 3d 301 ( 2017 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
DESTINATION BOAT CLUBS, INC., )
and DAVID E. SUTTON, JR., )
)
Appellants, )
)
v. ) Case No. 2D16-2092
)
ISLAND BREEZE BOAT CLUB & )
RENTAL INC.; PETER THOMAS )
STAVROU; BESSY STAVROU and )
ALEXANDRA STAVROU, )
)
Appellees. )
)
Opinion filed June 9, 2017.
Appeal from the Circuit Court for Lee
County; Keith R. Kyle, Judge.
Dennis L. Avery of Avery, Whigham
& Winesett, P.A., Fort Myers, for Appellant.
No appearance for Appellant, David
E. Sutton, Jr.
Jack C. Morgan, III, and Noel J. Davies of
Roetzel & Andress, LPA, Fort Myers,
for Appellees, Peter Thomas Stavrou,
Bessy Stavrou and Alexandra Stavrou.
No appearance for Appellee, Island
Breeze Boat Club & Rental, Inc.
SLEET, Judge.
Destination Boat Clubs, Inc., appeals the order denying its motion for
attorney fees and costs after Destination received a judgment in its favor in proceedings
supplementary against Island Breeze Boat Club and Rentals, Inc., and Peter, Bessy,
and Alexandra Stavrou. We affirm the order to the extent that it denied fees and costs
against Peter Stavrou individually. However, we reverse the portion of the order that
denied fees and costs against Island Breeze because it was contrary to the court's oral
rulings at the evidentiary hearing and not supported by competent substantial evidence.
This case began with a contract between Destination and Island Breeze.
Destination attempted to renegotiate the terms of the agreement with Island Breeze,
which declined and withdrew from the contract entirely. Destination sought repayment
of a $10,000 deposit it had paid to Peter Stavrou, the sole officer and director of Island
Breeze. Stavrou declined and transferred all of Island Breeze's monetary assets to the
Stavrous' personal bank account, and Island Breeze sued Destination for breach of
contract. Destination countersued Island Breeze for breach of contract and sought
return of the deposit.
After Destination obtained a judgment for the $10,000 deposit and
$36,552.90 in attorney fees and costs, it initiated proceedings supplementary against
the Stavrous, alleging that the transfers from Island Breeze to the Stavrous were
fraudulent and an attempt to avoid paying any judgment in favor of Destination. The
circuit court entered judgment in favor of Destination in the proceedings supplementary
and ordered the transfers undone. This court affirmed that order on appeal, reversing
only to the extent that the judgment entered against Peter Stavrou exceeded the
-2-
amount of the judgment against Island Breeze. See Stavrou v. Destination Boat Clubs,
Inc., No. 2D16-390 (Fla. 2d DCA May 31, 2017).
Destination sought fees and costs generated during the proceedings
supplementary against Island Breeze and Peter Stavrou. There is no transcript of the
hearing on this motion, but Destination provided an approved statement of the evidence
on appeal. See Fla. R. App. P. 9.200(b)(4). According to the statement of the
evidence, Island Breeze was not represented by counsel at the hearing. The statement
of the evidence also reflected that the court found that Destination was entitled to
reasonable costs and fees pursuant to section 56.29(11), Florida Statutes (2015). The
court considered evidence as to amounts and found that Destination had proven that
162 hours at $250 an hour—a total of $40,500—was a reasonable amount for fees and
that Destination was entitled to recover $1012.15 in costs. The court found that
Destination was entitled to recover these amounts against Island Breeze but not against
Peter Stavrou. However, after the hearing the court entered an order denying the
motion in its entirety. Destination now appeals this order, arguing that it is entitled to
recover fees and costs against Island Breeze and against Peter Stavrou individually.
Generally, our review of an order denying fees is for an abuse of
discretion; however "[w]here entitlement rests on the interpretation of a statute or
contract, our review is de novo." Raza v. Deutsche Bank Nat'l Trust Co., 100 So. 3d
121, 123 (Fla. 2d DCA 2012) (citing Country Place Cmty. Ass'n v. J.P. Morgan Mortg.
Acquisition Corp., 51 So. 3d 1176, 1179 (Fla. 2d DCA 2010)). Section 56.29(11)
provides for the award of fees and costs against the judgment debtor in proceedings
supplementary. The statement of the evidence reflects that the attorney fee and cost
awards were supported by competent substantial evidence and that they were
-3-
unopposed by Island Breeze, the judgment debtor. Moreover the award of costs was
mandatory under section 56.29(11). See Gaedeke Holdings, Ltd. v. Mortg. Consultants,
Inc., 877 So. 2d 824, 827 (Fla. 4th DCA 2004) ("[C]osts for proceedings supplementary
shall be taxed against the defendant." (quoting § 56.29(11))). Accordingly, we reverse
the order denying attorney fees and costs against Island Breeze.
To the extent that Destination argues that the trial court should have
awarded attorney fees and costs against Peter Stavrou individually, we disagree.
"[I]mpleaded parties are not liable for attorney's fees and costs in . . . proceedings
supplementary. In such proceedings, attorney's fees and costs may be awarded only
against the original judgment debtor—not against any impleaded parties." Kingston
Corp. Grp. of Fla. v. Richard Kleiber Walter Kleiber P'ship, 127 So. 3d 802, 804 (Fla. 2d
DCA 2013); see also Gaedeke, 877 So. 2d at 826 ("[C]hapter 56 demonstrates that
attorney's fees, if awarded, are to be assessed against the judgment debtor." (quoting
Rosenfeld v. TPI Int'l Airways, 630 So. 2d 1167, 1169 (Fla. 4th DCA 1993))). However,
once a judgment for fees is entered against the judgment debtor, the trial court may
apply assets previously determined to have been fraudulently transferred toward the
new judgment debt.1 Gaedeke, 877 So. 2d at 826. Because there is no basis for an
award of fees and costs against Peter Stavrou, we affirm the order to the extent it
denies the award against the impleaded parties.
Affirmed in part and reversed in part.
NORTHCUTT and SALARIO, JJ., Concur.
1The parties have not raised the issue of whether the portion of this court's
opinion issued in case number 2D16-390 that reverses the judgment entered against
Peter Stavrou to the extent that it exceeded the amount of the judgment against Island
Breeze, may be moot in light of this opinion. Accordingly, we do not address that issue.
-4-