Aksomitas v. Maharaj
| Decision Date | 03 May 2000 |
| Docket Number | No. 4D98-0170.,4D98-0170. |
| Citation | 771 So.2d 541 |
| Parties | W. Ward AKSOMITAS, Appellant, v. Sabitra MAHARAJ a/k/a Sabita Maharaj, Appellee. |
| Court | Florida District Court of Appeals |
Philip M. Burlington of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, and F. Kendall Slinkman of F. Kendall Slinkman, P.A., West Palm Beach, for appellant. James M. McCann, Jr., Nancy A. Romfh and Alan M. Herman of Akerman, Senterfitt & Eidson, P.A., West Palm Beach, for appellee.
James M. McCann, Jr., Nancy A. Romfh, Alan M. Herman and Celeste B. Marcks of Akerman, Senterfitt & Eidson, P.A., West Palm Beach, for appellee on rehearing.
Ward Aksomitas brought this action to foreclose a mortgage, but the trial court found that there was no consideration and denied foreclosure. He appeals, and we reverse.
Aksomitas, a lawyer, had represented the Maharajs until Mr. Maharaj died in 1986. After his death, Aksomitas claimed that he was owed attorney's fees for work he performed over a period of six years, and Mrs. Maharaj, in 1986, executed a promissory note in the amount of $150,000, secured by a mortgage, in favor of Aksomitas. Maharaj did not pay the mortgage when it became due in 1988, and it was extended several times, but not paid.
Maharaj, who owned several pieces of property besides the one secured by the Aksomitas mortgage, began to have financial problems, and in 1993 she asked Aksomitas to help her get a loan. At the request of Aksomitas, Mr. and Mrs. Samsonis agreed to lend Maharaj money if it was secured by her Loxahatchee Grove property. That property, however, was the security for Aksomitas' 1986 mortgage. Aksomitas then contacted the Mandell-Mueller Group, which had loaned money to the Maharajs in the past. Mandell-Mueller agreed to loan Maharaj money in return for a first mortgage on a parcel called Cypress Head. The proceeds of that loan were to be used to pay off the note to Aksomitas and satisfy his mortgage on Loxahatchee Grove. That would free up the Loxahatchee Grove property to secure the Samsonis loan.
In furtherance of this plan, Aksomitas recorded a satisfaction of his mortgage on Loxahatchee Grove, even though he had not yet been paid. He also had Maharaj sign the Mandell-Mueller note and mortgage. Mandell-Mueller then refused to fund their loan, the proceeds of which were to be used to pay off Aksomitas. Aksomitas, concerned that he now had no security for his note, had Mandell-Mueller assign the unfunded note and mortgage to Aksomitas. The Samsonis loan was funded and that enabled Maharaj to stave off a foreclosure of a lien on another parcel.
In 1994, about a year after the above-described transactions, Maharaj contacted Aksomitas and asked for a partial release of the Mandell-Mueller mortgage which Aksomitas held and Aksomitas gave it to her. The Mandell-Mueller mortgage became due in November, 1995, and Maharaj requested an extension, which was granted by a written agreement to November 1997. Maharaj paid $20,000 in interest at that time, but made no further payments, and Aksomitas ultimately filed this foreclosure action as assignee of the Mandell-Mueller mortgage.
Maharaj filed an answer containing a number of defenses, one of which was that there was no consideration for the Mandell-Mueller note and mortgage. After a non-jury trial, the court found that there was no consideration for the mortgage given by Maharaj to Mandell-Mueller, because the loan was never funded. The court reasoned that because Mandell-Mueller never obtained an enforceable note and mortgage, Aksomitas, who took the assignment of the note and mortgage from Mandell-Mueller with knowledge, could not enforce it either.
In Citibank International v. Mercogliano, 574 So.2d 1190 (Fla. 3d DCA 1991), Mercogliano executed a note and mortgage in favor of a bank after it was determined that her home had been purchased with bank funds embezzled by a third party. When the bank foreclosed, the trial court found that because the bank had not funded the mortgage, there was no consideration. The third district reversed, concluding that there was consideration because the bank had taken no further action in regard to the embezzlement. The fact that a mortgage is not actually funded, accordingly, does not mean there is no consideration. See also Crum v. United States Fidelity and Guar. Co., 468 So.2d 1004 (Fla. 1st DCA 1985)(a preexisting debt can be sufficient consideration for a mortgage).
We agree with Aksomitas that the trial court erred in viewing the issue of consideration too narrowly. It is undisputed that Aksomitas satisfied the 1986 note and mortgage that Maharaj had given Aksomitas on Loxahatchee Grove, even though that note and mortgage were never paid. Aksomitas then had Mandell-Mueller assign him the Mandell-Mueller mortgage in order to protect himself for having satisfied his own mortgage prematurely. Although there may have been no consideration from Mandell-Mueller, Maharaj clearly benefitted from the whole transaction, because the 1986 note' and mortgage to Aksomitas on Loxahatchee Grove were satisfied, and that constitutes consideration.
Because the trial court ruled that there was no consideration it did not address Maharaj's remaining defenses. We therefore reverse and remand for further proceedings.
EN BANC
ON MOTION FOR REHEARING OF ORDER GRANTING ATTORNEY'S FEES
When we reversed the final judgment in this case, Aksomitas v. Maharaj, 771 So.2d ___ (Fla. 4th DCA 2000), we granted appellee Maharaj's motion for appellate attorney's fees conditioned on her ultimately prevailing in the litigation. Her motion for attorney's fees alleged that she was contractually entitled to them and had been awarded fees by the trial court.
Appellant Aksomitas, who prevailed on this appeal, has moved for rehearing of the order awarding attorney's fees, citing General Accident Insurance Co. v. Packal, 512 So.2d 344 (Fla. 4th DCA 1987). In that case we held that in order to be awarded prevailing party attorney's fees for services rendered on appeal, a party had to win the appeal in addition to ultimately prevailing in the litigation. Under Packal, a party who ultimately prevails in the litigation, but loses an appeal during the litigation, cannot be reimbursed for fees incurred for that appeal. We followed Packal in Cline v. Gouge, 537 So.2d 625 (Fla. 4th DCA 1988).
In Packal we did not give any reasons why we were establishing the rule, but we may have been influenced because of the manner in which appellate costs are assessed.1 Florida Rule of Appellate Procedure 9.400(a) provides that "costs shall be taxed in favor of the prevailing party unless the court orders otherwise." This rule has consistently been interpreted as requiring the imposition of appellate costs in favor of the party prevailing on that particular appeal, regardless of who ultimately prevails in the litigation. Stringer v. Katzell, 695 So.2d 369 (Fla. 4th DCA 1997) and cases cited. No rule, however, requires that same result with attorney's fees.
When prevailing party attorney's fees are assessed at the conclusion of litigation, the trial court determines "which party has in fact prevailed on the significant issues tried before the court." Moritz v. Hoyt Enter., Inc., 604 So.2d 807, 810 (Fla.1992). Trial courts, however, have no authority to award prevailing party attorney's fees for an appeal unless specifically authorized to do so by the appellate court. Foley v. Fleet, 652 So.2d 962 (Fla. 4th DCA 1995); Travelers Indem. Co. of Am. v. Morris, 390 So.2d 464 (Fla. 3d DCA 1980). Appellate courts are thus required to rule on motions for prevailing party attorney's fees without knowing who will ultimately prevail. This court grants those motions contingent on that party prevailing, leaving the...
To continue reading
Request your trial
-
Brass & Singer v. United Automobile Insurance Company
...appeal. 805 So.2d at 119. The Fourth District reasoned that the circuit court failed to follow the law set forth in Aksomitas v. Maharaj, 771 So.2d 541 (Fla. 4th DCA 2000), which requires that "an appellate court should ordinarily grant a motion for prevailing party attorney's fees continge......
-
Nationwide Mut. Ins. Co. v. Nu-Best Diagnostic Labs, Inc.
...this court should have granted its motion, conditioned upon its becoming the overall prevailing party. Nu-Best cites Aksomitas v. Maharaj, 771 So.2d 541 (Fla. 4th DCA 2000) rev. denied, 790 So.2d 1105 (Fla.2001), in which the court granted a motion for appellate attorney's fees, submitted b......
-
Browning v. New Hope South, 1D00-4758.
...1997); [and] General Acc. Ins. Co. v. Packal, 512 So.2d 344, 347 (Fla. 4th DCA 1987) receded from on other grounds Aksomitas v. Maharaj, 771 So.2d 541 (Fla. 4th DCA 2000)." New Hope South v. Browning, No. 1D99-4770 (Fla. 1st DCA Mar.2, 2001) (unpublished order). Now that review in No. 1D99-......
-
Grider-Garcia v. State Farm Mut. Auto.
...because [respondent] was not a prevailing party in [the certiorari ] proceeding." Id. at 346. Subsequently, in Aksomitas v. Maharaj, 771 So.2d 541, 542 (Fla. 4th DCA 2000), the Fourth District receded from its decision in Packal, while using the provisions of section 627.428, Florida Statut......
-
Attorneys' fees on appeal: basic rules and new requirements.
...the Fourth District has recently changed this rule, apparently creating a new theory of appellate fee recovery. In Aksomitas v. Maharaj, 771 So. 2d 541 (Fla. 4th DCA 2000), the court held that parties prevailing on the "significant issues" in a case, who are entitled to recover attorneys' f......