Opinion
No. 3D10-3404.
Opinion filed November 9, 2011.
An appeal from the Circuit Court for Miami-Dade County, David C. Miller, Judge, Lower Tribunal No. 09-91966.
Pardo Gainsburg and Nicole R. Rekant and Jeffrey J. Pardo, for appellants.
Kahn, Chenkin Resnik and Marcy S. Resnik (Dania), for appellee.
Before ROTHENBERG and LAGOA, JJ., and SCHWARTZ, Senior Judge.
ON MOTION FOR APPELLATE ATTORNEY'S FEES AND COSTS
Appellee, Lisa Goldberg, as Trustee, ("Goldberg") under Florida Rule of Appellate Procedure 9.400 moved for an award of appellate attorney's fees and costs pursuant to both a promissory note and a personal guaranty. Because neither the promissory note nor the personal guaranty create an entitlement to such fees, we deny the motion. We, however, award costs to Goldberg as the prevailing party pursuant to Rule 9.400(a).
I. FACTUAL AND PROCEDURAL HISTORY
On November 6, 2007, Kapital Development, LLC ("Kapital) executed a promissory note in favor of the Lisa Goldberg Revocable Trust. On that same day, Steven Pardo ("Pardo") and Howard Kaplan ("Kaplan") signed a personal guaranty of the promissory note in their individual capacities. In December of 2009, Goldberg filed suit against Kapital, alleging a claim for breach of promissory note, and against Pardo and Kaplan for breach of guaranty. The trial court subsequently entered final judgment in favor of Goldberg. Pardo and Kaplan appealed, and this Court affirmed. Pardo v. Goldberg, No. 3D10-3404 (Fla. 3d DCA Aug. 17, 2011).
On May 10, 2011, Goldberg filed a motion for appellate attorney's fees and costs pursuant to both the promissory note and personal guaranty that were the subject of this appeal. The attorney's fee provision of the promissory note provided as follows:
Collection. In the event this note shall be in default and placed for collection, then the undersigned agree to pay all reasonable attorney fees and costs of collection.
The promissory note further provided that:
The undersigned and all other parties to this note, whether as endorsers, guarantors or sureties, agree to remain fully bound until this note shall be fully paid and waive demand, presentment and protest and all notices hereto and further agree to remain bound notwithstanding any extension, modification, waiver, or other indulgence or discharge or release of any obligor hereunder or exchange, substitution, or release of any collateral granted as security for this note.
With respect to the obligations of the guarantors, the personal guaranty, provided in pertinent part, that:
[T]he undersigned, jointly and severally, guarantee(s) to Lender, Lender's successors and assigns, heirs and personal representatives, the full performance and observance of all the covenants, conditions and agreements therein provided to be performed and observed by Kapital under the Note. . . . The undersigned further covenants and agrees that this guaranty shall remain and continue in full force and effect until all principal and interest due Lender have been paid in full.
II. ANALYSIS
"An award of appellate attorneys' fees must be supported by a particular contractual, statutory, or other substantive basis."State, Dep't of Highway Safety Motor Vehicles v. Trauth, 971 So. 2d 906, 908 (Fla. 3d DCA 2007). In assessing whether to award appellate attorney's fees on the basis of a promissory note and personal guaranty, this Court must interpret both documents together to determine their meaning and effect.See Riesterer v. Cadle Co. II, 981 So. 2d 644, 645 (Fla. 2d DCA 2008).
It is well established that "[a]s 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." MSI Fin. Grp., Inc. v. Veterans Constr. Corp., 645 So. 2d 178, 179 (Fla. 3d DCA 1994) (quotingKim v. Peoples Fed. Sav. Loan Ass'n, 538 So. 2d 876, 869 (Fla. 1st DCA 1989)).
However, "a guarantor may be liable for fees if the language in the [promissory] note is broad enough to cover a suit on the guaranty." Riesterer, 981 So. 2d at 645; cf. Cacciatore v. Fisherman's Wharf Realty Ltd. P'ship, 778 So. 2d 1076 (Fla. 4th DCA 2001) (awarding attorney's fees on appeal where the language of the underlying personal guaranty did not include a provision awarding attorney's fees but the promissory note included language that was broad enough to support such an award). But cf. Kim, 538 So. 2d at 870 (holding that the language in a promissory note was not broad enough to require the guarantor to pay for the attorney's fees incurred in enforcing the guaranty agreement).
Attorney's fees on appeal under a promissory note are not allowable where the promissory note contains no specific provision for appellate attorney's fees. See Goodfriend v. Druck, 309 So. 2d 236, 236 (Fla. 4th DCA 1975) ("[A]ttorney's fees on appeal are not allowable unless there is express language to that effect in the contractual document executed by the parties. The instant case involves a promissory note which contained no provision for attorney's fees on appeal."); see also Cacciatore, 778 So. 2d at 1077 (the document supporting attorney's fees included a provision affording attorney's fees in the event of appellate proceedings).
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 fee, we must look to the language of the note to see whether it is broad enough to cover a suit on the guaranty. See MSI Fin. Grp., 645 So. 2d at 179. Because the attorney's fee provision of the promissory note between Kapital and Goldberg does not include language that would permit awarding appellate attorney's fees against parties to that particular agreement, see Goodfriend, 309 So. 2d at 236, there is no justification for the imposition of appellate attorney's fees against the guarantors. Id.; Kim, 538 So. 2d at 870. Accordingly, we deny Goldberg's motion for fees.
Notwithstanding the denial of fees, we award costs to Goldberg as "the prevailing party in this court is automatically entitled to taxation of certain enumerated costs unless otherwise directed by the respective courts of appeal." Di Teodoro v. Lazy Dolphin Dev. Co., 432 So. 2d 625, 626 (Fla. 3d DCA 1983).
Rule 9.400 governs the award of appellate attorney's fees and costs, and provides in pertinent part that "[c]osts shall be taxed in favor of the prevailing party unless the court orders otherwise." Fla.R.App.P. 9.400(a).
Not final until disposition of timely filed motion for rehearing.