Tuesday, November 17, 2009

First District Affirms Denial Of Attorneys Fees When Party Fails To Produce Any Evidence Of Entitlement

In Coastal Community Bank v. Jones (1D08-3649), the First District affirmed the trial court's denial of a motion by the plaintiff to enforce a fee provision in a note entitling the lender to ten percent of the amount of the note.  The First District, however, did not agree with the trial court that such a fee provision would be unconscionable.
Accordingly, assuming the contract contains the type of fee provision we deal with here, a court need not consider the reasonableness of the fee charged by the mortgagee. Such does not, however, prohibit a trial court from inquiring as to evidence showing an entitlement to the fee sought.
Notably, the statute removes, in certain cases, the step under which a court would adjudge whether a fee is “reasonable or just.” The statute does not, though, remove the need to determine a fee in the first instance.
Once the note holder has presented evidence of its obligation to pay fees, the court should refrain from inquiry “into the fee’s fairness or reasonableness absent some plea for equitable consideration, e.g., unconscionability, . . .” Dean v. Coyne, 455 So. 2d 576, 576 (Fla. 4th DCA 1984). In the present case, however, the bank declined an opportunity to provide any evidence concerning its obligation to pay fees to its lawyers. Under these circumstances, we do not reach the question whether the fee sought was reasonable or excessive, because no amount at all was demonstrated. See Brett, 120 So. at 554.
To summarize, we do not approve denial of the fee because the fee was unreasonable or unjust. Instead, we affirm because appellant declined to demonstrate at all the fee due from it to its lawyers.
The lender failed to offer any evidence of the fee.  Therefore, it is not that the ten percent fee was improper but that they failed to produce evidence they were due any fee whatsoever.


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