Inglis v. Wells Fargo Bank, N.A.

Filing 243

OPINION AND ORDER denying without prejudice 235 Motion for Attorney Fees and to Tax Costs. Defendant may file a motion, if appropriate, within 14 days of the date of the Mandate on the pending appeals. Signed by Judge John E. Steele on 5/26/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
RICHARD
K.
INGLIS,
as
Special Trustee to the trust
under the will of Rosa B.
Schweiker, dated February 2,
1961,
the
Frederick
W.
Berlinger Revocable Deed of
Trust, dated 10/17/1991, as
amended and restated,
Plaintiff,
v.

Case No: 2:14-cv-677-FtM-29CM

WELLS FARGO BANK N.A.,
Defendant.
OPINION AND ORDER
This matter comes before the Court on defendant Wells Fargo
Bank, N.A.’s Motion for Attorneys’ Fees and to Tax Costs (Doc.
#235) filed on March 3, 2017.

Plaintiff filed a Response in

Opposition (Doc. #241) on March 17, 2017.

For the reasons set

forth below, the motion is denied without prejudice.
I.
On February 16, 2017 the Court entered an Opinion and Order
(Doc. #230) denying plaintiff’s motion for summary judgment and
granting defendant’s motion for summary judgment.

On February 21,

2017, plaintiff filed a Notice of Appeal (Doc. #232).

Then, on

March 8, 2017, defendant filed a Notice of Cross-Appeal (Doc.
#237).

The consolidated appeal is currently pending.

Defendant

filed

the

instant

motion

seeking

to

recover

attorneys’ fees in the amount of $523,529.50 and costs in the
amount

of

$11,299.12.

(Doc.

#235.)

In

response,

plaintiff

asserts the Court lacks jurisdiction to hear the instant motion
due to the pending appeal.

(Doc. #241.)

Plaintiff further

contends defendant is not entitled to attorneys’ fees, has not
produced appropriate documentation to support its fee requests,
and the requests are unreasonable.

(Id.)

Plaintiff also seeks

to bifurcate the matter to first determine defendant’s entitlement
to fees and then determine the amount owed.

(Id.)

II.
As a general rule, the filing of a notice of appeal divests
a district court of jurisdiction on any matter involved in the
appeal.

In Green Leaf Nursery v. E.I. DuPont de Nemours & Co.,

341 F.3d 1292, 1309 (11th Cir. 2003).

However, the district court

may retain jurisdiction to consider motions on matters that are
collateral to the matters on appeal.
1176, 1179 (11th Cir. 2003).

Mahone v. Ray, 326 F.3d

Specifically, the district court may

entertain a motion for attorney’s fees after a notice of appeal
has been filed in the underlying case.

Briggs v. Briggs, 260 F.

App'x 164, 165 (11th Cir. 2007) (per curiam) (citing Rothenberg v.
Sec. Mgmt. Co., 677 F.2d 64, 65 (11th Cir. 1982)).
Alternatively, the Court has discretion to deny a motion for
attorneys’ fees without prejudice with leave to re-file after the

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appeal has concluded.

See Fed. R. Civ. P. 54(d) Advisory Committee

Note to 1993 Amendment (providing that “[i]f an appeal on the
merits of the case is taken, the court may rule on the claim for
fees, may defer its ruling on the motion, or may deny the motion
without prejudice, directing under subdivision (d)(2)(B) a new
period for filing after the appeal has been resolved”); see also
The Indigo Room, Inc. v. City of Fort Myers, No. 2:12–CV–39–FTM–
38CM, 2014 WL 1174355, at *1 (M.D. Fla. Mar. 21, 2014)) (denying
motion for attorney’s fees without prejudice and with leave to refile after entry of appellate court’s mandate); S.-Owners Ins. Co.
v. Wall 2 Walls Const., LLC, No. 8:12–CV–1922–T–33TBM, 2013 WL
6893254, at *1 (M.D. Fla. Dec. 31, 2013) (same).
III.
Rather than resolving the instant motion during the pendency
of the appeal, justice would be better served by denying the motion
without prejudice and with leave to re-file after the conclusion
of the appeal.

See Bowers v. Universal City Dev. Partners, Ltd.,

No. 6:03–cv–985–ORL–18JGG, 2005 WL 1243745, at *2 (M.D. Fla. May
19, 2005) (stating that “[i]f the district court were to resolve
the fee and cost issue while an appeal remains pending, it would
be asked to repeat the procedure following the appeal”).
Immediate resolution of the motion is unwarranted given the
procedural posture of the case.

Because the consolidated appeal

is pending before the Eleventh Circuit Court of Appeals (Docs.

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##232, 237), the Court denies defendant’s motion (Doc. #235)
without prejudice.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

Defendant Wells Fargo Bank, N.A.’s Motion for Attorneys’

Fees and to Tax Costs (Doc. #235) is DENIED without prejudice.
2.

Defendant may file a Motion for Attorneys’ Fees and

Costs, if appropriate, within fourteen (14) days of the date that
the Eleventh Circuit Court of Appeals issues its Mandate on the
pending appeals.
DONE and ORDERED at Fort Myers, Florida, this
of May, 2017.

Copies:
Counsel of Record

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26th

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