Summary
The Florida Third District Court of Appeal denied appellate attorney’s fees to the appellee, holding that the promissory note’s fee provision was not broad enough to cover a suit on the guaranty and that a guarantor is not liable for fees absent an express provision in the guaranty. The court also held that the appellee could not rely on section 59.46, Florida Statutes, because she failed to cite it in her motion and no underlying contract or statute provided for fees. However, as the prevailing party, the appellee was automatically entitled to taxation of enumerated appellate costs under Florida Rule of Appellate Procedure 9.400(a).
Topics
Practice areas
Questions Presented
- Whether Goldberg is entitled to appellate attorney's fees under the promissory note and personal guaranty.
- Whether Goldberg is entitled to an award of appellate costs as the prevailing party.
Holdings
- A guarantor is not liable for attorney's fees in an action to enforce a guaranty where there is no express provision in the guaranty for such liability, and the attorney's fee provision in the underlying promissory note is not broad enough to cover a suit on the guaranty.
- A motion for appellate attorney's fees must state the statutory grounds on which recovery is sought; failure to cite the statute precludes reliance on it. Moreover, section 59.46 applies only when a contract or statute provides for payment of fees, which is not the case here.
- The prevailing party in an appeal is automatically entitled to taxation of certain enumerated costs under Florida Rule of Appellate Procedure 9.400(a).
Key quotations
“As a general rule, the guarantor is not liable for attorney's fees and costs in connection with an action to enforce a guaranty where there is no express provision in the guaranty for such liability.”
“Here, because the personal guaranty signed by Kaplan and Pardo does not include a specific provision that would obligate the guarantors to pay attorney's fees, we must look to the language of the note to see whether it is broad enough to cover a suit on the guaranty.”
“Costs shall be taxed in favor of the prevailing party unless the court orders otherwise.”
Factual background
Kapital Development, LLC executed a promissory note in favor of the Lisa Goldberg Revocable Trust. Pardo and Kaplan signed a personal guaranty of the note. After default, Goldberg filed suit and obtained final judgment against all defendants.
Procedural history
Goldberg sued Kapital, Pardo, and Kaplan for breach of promissory note and guaranty in Miami-Dade Circuit Court (Case No. 09-91966). The trial court entered final judgment for Goldberg. Pardo and Kaplan appealed, and the Third DCA affirmed. Goldberg then moved for appellate attorney's fees and costs, which the court addresses here.