Ffrench v. Ffrench

• Decision Date: 19 November 2019
• Docket Number: CASE NO. 18-80569-CIV-COHN/MATTHEWMAN
• Citation: 418 F.Supp.3d 1186
• Parties: Brian P. FFRENCH, Plaintiff, v. Eileen T. FFRENCH, individually and as successor trustee of the purported 2016 Restatement of the Robert N. Ffrench Revocable Trust, Carl A. Cascio, and Michael S. Ffrench, Defendants.
• Court: U.S. District Court — Southern District of Florida

418 F.Supp.3d 1186

Brian P. FFRENCH, Plaintiff,

v.Eileen T. FFRENCH, individually and as successor trustee of the purported 2016 Restatement of the Robert N. Ffrench Revocable Trust, Carl A. Cascio, and Michael S. Ffrench, Defendants.

CASE NO. 18-80569-CIV-COHN/MATTHEWMAN

United States District Court, S.D. Florida.

Filed November 4, 2019

Signed November 19, 2019

ORDER ADOPTING REPORT OF MAGISTRATE JUDGE

JAMES I. COHN, United States District Judge

THIS CAUSE is before the Court upon the Report and Recommendation [DE 73] ("Report") submitted by United States Magistrate Judge William Matthewman regarding Defendant Eileen T. Ffrench's Application for Attorneys' Fees [DE 70] ("Motion"). The Court has reviewed the Motion, the Report, and the record in this case, and is otherwise advised in the premises. The Court notes that Defendant did not file objections to the Report, and the deadline for doing so has passed.

In the Report, Judge Matthewman concludes that Defendant's Motion for attorneys' fees related to Plaintiff's unsuccessful appeal of the Court's July 10, 2018 Order dismissing the Complaint for lack of subject matter jurisdiction [DE 64] should be denied because Defendant cannot be considered a prevailing party in that the Court's dismissal was without prejudice and did not reach the merits of Plaintiff's suit. DE 73. The Court agrees with Judge Matthewman's analysis and conclusions and adopts the Report in full.

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Judge Matthewman's Report and Recommendation [DE 73] is ADOPTED in its entirety.

2. Defendant Eileen T. Ffrench's Application for Attorneys' Fees [DE 70] is hereby DENIED .

DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this 19th day of November, 2019.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION THAT THE DISTRICT JUDGE DENY DEFENDANT EILEEN T. FFRENCH'S APPLICATION FOR ATTORNEYS' FEES [DE 71]

WILLIAM MATTHEWMAN, United States Magistrate Judge

THIS CAUSE is before the Court on Defendant's Application for Attorneys' Fees. [DE 71]. This matter was referred to the undersigned for report and recommendation by the Honorable United States District Judge James I. Cohn. See DE 72. Defendant originally filed her application for attorneys' fees in the United States Court of Appeals for the Eleventh Circuit while this case was on appeal there. [DE 70, p. 2-18]. Plaintiff objected to Defendant's application. [DE 70, p. 114-127]. Defendant replied to Plaintiff's objection. [DE 70, p. 134-48]. Upon a sua sponte order of the Eleventh Circuit, Defendant's application was transferred to this Court for appropriate disposition. [DE 70, p. 1]. The Court has carefully reviewed the parties' papers and the entire docket. Thus, this matter is ripe for review. For the reasons that follow, the undersigned RECOMMENDS that the District Judge DENY Defendant's Application for Attorneys' Fees [DE 71].

I. Background

This case arises out of a dispute between Plaintiff Brian P. Ffrench and Defendant Eileen T. Ffrench, siblings and surviving children of Robert N. Ffrench. Before his passing, Mr. Ffrench created the Robert N. Ffrench Revocable Trust. However, the siblings apparently disagreed over matters relating to the Trust and Brian and his brother, Robert, brought two actions in Florida state court to determine Mr. Ffrench's capacity and be appointed his plenary guardians. Defendant Carl Cascio, Esq., was the attorney representing Mr. Ffrench in those state court proceedings.

Rather than litigate their claims, the siblings, with Mr. Cascio's consent, entered into a settlement agreement on March 9, 2015 (the "2015 Settlement Agreement"). The 2015 Settlement Agreement stated that Eileen and a Mr. Douglas Hoffman, Esq., were to be appointed guardians of Mr. Ffrench's person while Eileen's brothers Robert and Brian were to be appointed guardians of his property. It also stated, in Paragraph 25, that if any litigation arose "out of or in connection with this Agreement, or the enforcement of any terms in this Agreement," then "the prevailing party shall be entitled to all reasonable attorneys' fees, costs, and expenses for all trials and appeals." [DE 1-4, p. 11]. The Florida state court approved the 2015 Settlement Agreement that same day. [DE 70, p. 131-33].

Eventually, in September 2016, Mr. Ffrench's capacity was restored and Mr. Ffrench restated the Trust (the "2016 Restatement"). Brian and Robert then filed a declaratory judgment action to determine whether their father had the capacity to make financial decisions. But the siblings again entered into another settlement agreement (the "2017 Settlement Agreement") in which they agreed to avoid further litigation. [DE 70, p. 92-103]. The 2017 Settlement Agreement also stated that the parties "preserve[d], without prejudice, all claims, defenses and causes of action arising from the 2015 Settlement Agreement relating to those issues addressed in Paragraphs 10, 12, 18, 20, 21, 25, and 28[.]" [DE 70, p. 96]. Paragraph 25 of the 2015 Settlement Agreement, again, related to the shifting of attorneys' fees related to any litigation between the parties arising out of the 2015 Settlement Agreement. [DE 1-4, p. 11].

Then, on May 2, 2018, Brian initiated the instant action against Eileen, his brother Michael, and Mr. Cascio seeking rescission of the 2016 Restatement and alleging various violations of the 2015 Settlement Agreement. [DE 1].

Brian, however, was careful whom he named as parties in his newly-filed federal court action. He omitted his brother, Robert, from the instant action, representing that Robert had assigned his causes of action to him instead. [DE 1, p. 2 n.1]. Defendants moved to dismiss Brian's suit, arguing that he had intentionally omitted Robert, who lives in Texas along with his brother Michael Ffrench, a named defendant, in an attempt to preserve federal diversity jurisdiction. [DEs 23, 36, 37]. The Honorable United States District Judge James I. Cohn agreed with Defendants, found that Brian had colluded with Robert to preserve federal diversity jurisdiction, and dismissed Brian's complaint for lack of subject matter jurisdiction. [DE 64]. Brian appealed Judge Cohn's decision to the Eleventh Circuit. [DE 65]. And, on August 6, 2019, a three-judge panel of the Eleventh Circuit affirmed Judge Cohn's decision. [DE 69]. The matter was then returned to this Court to determine Eileen's entitlement to attorneys' fees related to Brian's unsuccessful appeal of the district court's decision. [DE 70].

With this background in mind, the Court turns to Eileen's application for attorneys' fees.

II. Entitlement to Attorneys' Fee Award

Eileen contends she is entitled to attorneys' fees related to Brian's unsuccessful appeal of Judge Cohn's decision under Paragraph 25 of the 2015 Settlement Agreement because she was the prevailing party on appeal and Brian's suit against her arose "out of or in connection with" the 2015 Settlement "or the enforcement of" its terms. Brian argues that (1) Eileen was not a prevailing party and (2) Paragraph 25 of the 2015 Settlement Agreement is void after a September 8, 2016, Florida state court order found that Paragraphs 10 and 21 of the 2015 Agreement were void. In his view, "the [c]ourt's voiding of those two paragraphs resulted in the invalidation of the entire 2015 Settlement Agreement, which precludes Eileen's reliance upon Paragraph 25's provision for prevailing party fees." [DE 70, p. 121].

A "prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser." Alyeska Pipeline Serv. Co. v. Wilderness Soc'y , 421 U.S. 240, 247, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). This so-called "American Rule" can be overcome, however, by "an enforceable contract allocating attorney's fees." Travelers Cas. and Sur. Co. of Am. v. Pacific Gas and Elec. Co. , 549 U.S. 443, 448, 127 S.Ct. 1199, 167 L.Ed.2d 178 (2007).

Federal courts sitting in diversity jurisdiction ordinarily apply the law of the forum state when deciding entitlement to attorneys' fees. See McMahan v. Toto , 256 F.3d 1120, 1132 (11th Cir. 2001). Thus, the instant dispute is governed by Florida law. Under established Florida law, a prevailing party is the one who succeeds "on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Moritz v. Hoyt Enter., Inc. , 604 So.2d 807, 810 (Fla. 1992). This standard looks for "(1) a situation where a party has been awarded by the court at least some relief on the merits of his [or her] claim, or (2) a judicial imprimatur on the change in the legal relationship between the parties." Smalbein v. City of Daytona Beach , 353 F.3d 901, 905 (11th Cir. 2003) ; see also Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep't of Health and Human Servs. , 532 U.S. 598, 605-05, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001).

Here, Brian's suit was dismissed by Judge Cohn for lack of subject matter jurisdiction. [DE 64]. He appealed that decision and ultimately lost. But Judge Cohn's dismissal was without prejudice to Brian's refiling of the suit in Florida state court. [DE 64, p. 10]. The only issue Judge Cohn decided was whether the court had jurisdiction to hear Brian's suit at all, not whether Brian's claims have merit. And the Eleventh Circuit also did not reach the merits of Brian's suit as the only issue before it on appeal was whether Judge Cohn's dismissal was clearly erroneous. Brian is still free to refile his action in Florida state court. Thus, at this stage of the proceedings, the legal relationship between the parties has not changed whatsoever. Eileen may have prevailed on appeal, but she has not prevailed on the overall litigation between the parties. Thus, the Court finds that, at this stage, Eileen has not prevailed in this litigation and is therefore not entitled to attorneys' fees related to Brian's unsuccessful appeal of the district court's decision.

Both federal and Florida law support the Court's decision...