DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
HOUSEHOLD FINANCE CORP III,
Appellant,
v.
ELIZABETH WILLIAMS, HOUSEHOLD FINANCE CORPORATION III,
STATE OF FLORIDA, DEPARTMENT OF REVENUE, CLERK OF THE
COURT, BROWARD COUNTY, FLORIDA, and LR CREDIT 11, LLC,
Appellees.
No. 4D18-1570
[ February 19, 2020 ]
Appeal and cross-appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Joel T. Lazarus, Senior Judge; L.T. Case
No. CACE-13-013934.
David Rosenberg, Cynthia L. Comras and Jarrett Cooper of Robertson,
Anschutz & Schneid, P.L., Boca Raton, for Appellant/Cross-Appellee.
Jonathan Kline of Jonathan Kline, P.A., Weston, for Appellee/Cross-
Appellant Elizabeth Williams.
TAYLOR, J.
The lender, Household Finance Corporation, appeals the trial court’s
final order awarding the borrower, Elizabeth Williams, attorney’s fees.
Because we conclude that the trial court erred in determining the amount
of fees due to the borrower, we reverse and remand for proceedings
consistent with this opinion.
The lender brought a foreclosure suit against the borrower with two
counts. Count I sought foreclosure and Count II sought to reform the legal
description of the property listed in the mortgage because of a scrivener’s
error.
Following trial, the trial court entered final judgment in favor of the
lender on the foreclosure count; however, the trial court involuntarily
dismissed Count II. Thus, both the lender and borrower prevailed on
separate counts. The trial court determined that both were entitled to
attorney’s fees.
A year later, the borrower moved to determine attorney’s fees on the
reformation count. At the hearing to determine the amount of fees due,
the borrower presented a fee grid, a retainer agreement, and testimony by
her counsel and a fee expert. The fee grid did not specify which tasks were
related to which counts or how much time per task was allocated to either
count. The fee grid also detailed four entries for preparation and
attendance at the hearing on the determination of the amount of fees due
to the borrower.
The borrower’s position at the hearing was that the fees could not be
apportioned between the counts because the foreclosure count and the
reformation count were so inextricably intertwined that apportionment of
fees was impossible. The trial court granted all the borrower’s requested
fees for both counts at a reduced rate and hours. The lender now appeals
the trial court’s decision.
On appeal, the lender argues that the trial court abused its discretion
by awarding the borrower all her attorney’s fees because the counts were
not inextricably intertwined. The lender further argues that the trial court
erred by awarding the borrower fees for entries that were allocated to
preparing and attending the hearing that determined the amount of fees
due to the borrower—in other words, fees for fees. We agree.
An abuse of discretion standard applies when reviewing a trial court’s
determination of attorney’s fees; however, a trial court’s determination of
whether multiples claims within a lawsuit are separate and distinct is
subject to a de novo review. Anglia Jacs & Co. v. Dubin,
830 So. 2d 169,
171 (Fla. 4th DCA 2002). An award of attorney’s fees must be supported
by competent, substantial evidence. Tutor Time Merger Corp. v. MeCabe,
763 So. 2d 505, 506 (Fla. 4th DCA 2000).
Section 57.105(7), Florida Statutes, allows courts to grant reasonable
attorney’s fees to a party when that party prevails in any action regarding
a contract that allowed for attorney’s fees. However, this statute does not
permit an award of “fees for fees.” Mediplex Constr. of Fla., Inc. v. Schaub,
856 So. 2d 13, 15 (Fla. 4th DCA 2003).
A party may recover attorney’s fees for time spent establishing
entitlement to fees; however, a party cannot recover fees for time spent
contesting or determining the amount of fees due. See
id. at 14–15; Eisman
v. Ross,
664 So. 2d 1128, 1129 (Fla. 3d DCA 1995).
2
“In a case with multiple claims, ‘where each claim is separate and
distinct and would support an independent action, as opposed to being an
alternative theory of liability for the same wrong, the prevailing party on
each distinct claim is entitled to an award of attorney’s fees for those fees
generated in connection with that claim.’” Padgett v. Kessinger,
190 So.
3d 105, 108 (Fla. 4th DCA 2015) (quoting Folta v. Bolton,
493 So. 2d 440,
442 (Fla. 1986)).
“When a party prevails on only a portion of the claims made in the
litigation, the trial court must evaluate the relationship between the
successful and unsuccessful claims and determine whether the
investigation and prosecution of the successful claims can be separate
from the unsuccessful claims.” Anglia Jacs & Co.,
830 So. 2d at 172
(citation omitted). Put another way, a full fee for multiple claims—
successful and unsuccessful—may be awarded if the claims are
inextricably intertwined.
Id. “Claims are inextricably intertwined when a
determination of the issues in one action would necessarily be dispositive
of the issues raised in the other.”
Id. (citations and internal quotation
marks omitted).
“Claims are separate and distinct if ‘they could support an independent
action and are not simply alternative theories of liability for the same
wrong.’” Padgett, 190 So. 3d at 108 (quoting Avatar Dev. Corp. v. DePani
Constr., Inc.,
883 So. 2d 344, 346 (Fla. 4th DCA 2004)).
A reformation claim is outside the terms of the contract and cannot
provide a basis for attorney’s fees and costs pursuant to the contract. See
Natarajan v. Horn,
402 So. 2d 596, 597 (Fla. 2d DCA 1981).
The party seeking fees bears the burden to allocate the fees to the issues
which fees were awarded or show that the issues are so intertwined that
allocation is infeasible. Waverly at Las Olas Condo. Ass’n v. Waverly Las
Olas, LLC,
88 So. 3d 386, 388 (Fla. 4th DCA 2012).
In Deustche Bank v. Quintela,
268 So. 3d 156, 158–59 (Fla. 4th DCA
2019), the borrower sought attorney’s fees related to all counts, even
though the borrower prevailed on the issue of reformation but not on the
issue of foreclosure. The borrower argued that the defenses to both counts
were inextricably intertwined.
Id. The trial court found that the borrower
was entitled to fees and awarded him all fees, including fees for the count
on which the borrower did not prevail.
Id. We reversed the award, holding
that the borrower was not the prevailing party because the fact that the
bank obtained a final judgment of foreclosure without reforming the legal
description demonstrated that the reformation count was insignificant and
3
not intertwined with the foreclosure count.
Id. at 159.
Here, it is important to note that the issues raised on appeal do not
concern entitlement to fees; rather, the issues raised on appeal concern
the amount of fees due to the borrower. Because the lender has not
challenged entitlement, we do not disturb the trial court’s determination
that the borrower is entitled to fees on the reformation count.
Nevertheless, under Quintela, the principle remains that reformation is not
a significant issue and cannot be inextricably intertwined with a
foreclosure count.
The borrower had the burden to allocate the fees to the reformation
count or demonstrate that such an allocation was not possible. The
relevant provision in the mortgage provides that the lender shall be entitled
to all expenses when pursuing foreclosure. Here, the borrower did not
present any evidence to establish that the claims were intertwined, but
instead argued only that the claims were intertwined because they arose
from the same action. The lender countered this argument with its fee
expert, who testified about the different elements of foreclosure and
reformation. Indeed, the borrower’s own witness stated that reformation
is a matter usually challenged at a later time or after trial. Thus, as we
held in Quintela, we conclude here that the lender’s reformation claim was
completely outside the terms of the contract and cannot be inextricably
intertwined with the foreclosure count.
Because the borrower did not satisfy her burden to demonstrate that
the counts were intertwined, the trial court abused its discretion in
awarding the borrower all her fees and costs, including those attributed to
the foreclosure claim.
Finally, the trial court erred by awarding fees for the entries in the fee
grid that were allocated to preparing and attending the hearing that
determined the amount of fees due.
We reverse the trial court’s determination of fees and remand for further
proceedings consistent with this opinion. On remand, the trial court shall
require the borrower to allocate time worked on tasks related only to the
reformation count. Further, the trial court shall not award any fees for
time allotted to the preparation or attendance for determining the amount
of fees due to the borrower. This disposition renders the borrower’s cross-
appeal moot.
Reversed and Remanded.
4
CIKLIN and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
5
