                                                            [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________          FILED
                                                    U.S. COURT OF APPEALS
                                 No. 09-16052         ELEVENTH CIRCUIT
                                                          JUNE 15, 2010
                             Non-Argument Calendar
                                                           JOHN LEY
                           ________________________
                                                            CLERK

                  D. C. Docket No. 09-00400-CV-ORL-31-KRS

DAVID AZAR,


                                                              Plaintiff-Appellant,

                                       versus

NATIONAL CITY BANK,
Successors, Assigns and all Claimants,
Person or Parties, natural or corporate,
or whose exact legal status is unknown,
claiming under the above named
Defendant now known as Harbor
Federal Savings Bank,

                                                             Defendant-Appellee.


                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________

                                  (June 15, 2010)
Before TJOFLAT, BIRCH and WILSON, Circuit Judges.

PER CURIAM:

       David Azar (“Azar”), a licensed attorney proceeding pro se, appeals the

dismissal under Federal Rule of Civil Procedure 12(b)(6) of his claims against

National City Bank (“National City”) for fraudulent inducement and negligent

misrepresentation. He also appeals the award of attorneys’ fees and costs to

National City. Upon review of the record and the parties’ briefs, we AFFIRM.

                                     I. BACKGROUND

       We state the facts as alleged in Azar’s second amended complaint.1

Between 2002 and 2007, Azar opened several bank accounts for his local

businesses at National City and its predecessor, Harbor Federal Savings Bank,2 in

Indialantic, Florida. R2-64 at 2. Azar met with the local branch manager, Gloria

Olsen (“Olsen”), and a mortgage loan officer named Chris Graham (“Graham”), on

numerous occasions during this time. Id. In 2005, Azar consulted with Olsen

about financing the purchase of a single-family investment property for $240,000.

Id. at 3. After reviewing his tax returns and checking his credit, Olsen suggested

he borrow $192,000 as a mortgage on the investment property and take a $75,000

       1
         Azar filed his initial complaint in state court in January 2009. R1-2. Pursuant to
National City’s request, the case was removed in March 2009 to the United States District Court
for the Middle District of Florida based on diversity jurisdiction. R1-1; R1-2.
       2
           National City acquired Harbor Federal Savings Bank in 2006. R2-64 at 2.

                                                2
equity loan on his personal residence. Id. At the time, Azar already had a

$230,000 mortgage on his home. Id.

      In January 2006, in an effort to reduce his monthly payments, Azar

refinanced his mortgages on his own residence by combining his $230,000

mortgage loan with the $75,000 equity line, for a new mortgage of $329,600. Id.

at 4. Due to the slow economy, however, Azar’s businesses faltered and he had

difficulty paying his mortgage. Id. Azar again turned to Olsen for a home equity

loan. Id. at 5. After an appraisal of Azar’s residence, Olsen approved an

additional $36,500 home equity loan in June 2007. Id. Since October 2008, Azar

has not made any payments on either the $329,600 mortgage loan or the $36,500

home equity loan. Id.

      Azar sued National City in 2009 seeking to restructure the principal and

terms of his mortgage, and/or rescind and cancel his mortgage, and enjoin National

City from instituting foreclosure proceedings. Id. at 8-16. His second amended

complaint raised six counts: (1) fraud; (2) fraudulent inducement; (3) fraudulent

misrepresentation; (4) negligence; (5) breach of fiduciary duty and failure to

disclose; and (6) injunctive relief. Id. at 7-15. Azar asserted that “a confidential

and trusting relationship” existed between him and National City’s employees, and

that he had trusted National City “to make good and proper decisions” regarding



                                           3
the mortgage loans. Id. at 2-3. Furthermore, Azar alleged in counts one through

three that National City employees had intentionally falsified his income without

his knowledge to secure the 2006 and 2007 loans. Id. at 7-11. In addition to

injunctive relief, Azar sought money damages, attorneys’ fees and costs, and “all

other equitable relief.” Id. at 8, 10-11, 13, 15-16.

      In October 2009, the district court granted National City’s motion to dismiss

the second amended complaint for failure to state a claim pursuant to Rule

12(b)(6). R3-74 at 9. The court dismissed the breach of fiduciary duty claim in

count five because the allegations only established “an arms-length, lender-

borrower relationship” under which National City did not owe any fiduciary duties

to Azar. Id. at 5. The court also dismissed Azar’s claim in count four that National

City acted negligently by failing to follow sound banking practices in processing

his loans. Id. at 5-7. Finally, the court analyzed Azar’s remaining fraud claims in

counts one through three, which the court described as “essentially one claim, the

crux of which is [Azar’s] contention that he was misle[d] by the bank into

accepting a larger loan than he could repay.” Id. at 8. The court noted that the

only false statement alleged in Azar’s complaint concerned National City’s

statement on the loan applications that Azar’s income was three times higher than

the actual amount. Id. The court found that this misrepresentation was intended to



                                           4
induce the lender to loan Azar money, not to induce Azar to borrow money. Id. at

8-9. Consequently, the court concluded that Azar’s fraud claim failed. Id. at 9.

The court further reasoned that Azar could not have relied on this

misrepresentation because Azar would have known the true amount of his own

income. Id. Additionally, Azar could not claim reliance because, as he admitted in

his amended complaint, he was unaware that his income had been falsified. Id.

The court therefore dismissed his fraud claims with prejudice based on Azar’s

failure to state a viable claim. Id.

       Azar then filed a motion to alter the court’s order pursuant to Federal Rule

of Civil Procedure 59. R3-77. He requested that he be allowed to file a third

amended complaint so that he could replead his claims of fraudulent inducement

and fraudulent misrepresentation, and add new causes of action for negligent

misrepresentation and breach of contract. Id. at 1. On 10 November 2009, the

court denied his motion as “frivolous.” R3-79 at 3.

       National City subsequently moved for $48,648.30 in attorneys’ fees and

$357.60 in costs. R3-75 at 5. Azar did not object to the hourly fees and only

opposed $14,795.80 in fees associated with legal research and conferences. R3-82

at 2-3. The district court found no support for Azar’s objection and granted the

motion for $49,005.90 in attorneys’ fees and costs. R3-83 at 2.



                                          5
       Azar appeals from the final judgment in the case as well as the order denying

his motion to alter or amend the judgment. R3-85. Specifically, Azar contends the

district court erred in dismissing with prejudice his claims in count two of

fraudulent inducement, and his claims in count three of negligent

misrepresentation, which he states were erroneously labeled as “fraudulent

misrepresentation.”3 Azar further submits that the award for attorneys’ fees should

be vacated because National City did not attempt to enforce the mortgage, and

because the award is unreasonable and excessive.

                                       II. DISCUSSION

A. Dismissal of Fraudulent Inducement and Negligent Misrepresentation Claims

       “We review de novo the district court’s grant of a motion to dismiss under

Rule 12(b)(6).” Redland Co. v. Bank of Am. Corp., 568 F.3d 1232, 1234 (11th

Cir. 2009) (per curiam). To withstand a motion to dismiss, a complaint must state

a “plausible” claim for relief. Ashcroft v. Iqbal, 556 U.S. ___, ___, 129 S. Ct.

1937, 1949 (2009). This requires sufficient “factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct


       3
          In his reply brief, Azar further argues that his complaint established a fiduciary duty,
contrary to the district court’s determination. To the extent that Azar is challenging the district
court’s dismissal of his breach of fiduciary duty claim in count five, we will not address it
because Azar failed to raise this issue in his initial appeal brief. See United States v. Valladares,
544 F.3d 1257, 1269 n.2 (11th Cir. 2008) (per curiam) (“‘[A]n appellant may not raise an issue
for the first time in a reply brief.’”).

                                                  6
alleged.” Id. at ___, 129 S. Ct. at 1949. Although we must accept all factual

allegations in the complaint as true, we need not apply this rule to legal

conclusions. Id. at ___, 129 S. Ct. at 1949. Furthermore, the factual allegations

must go beyond “naked assertions” and establish more than “a sheer possibility” of

unlawful activity. Id. at ___, 129 S. Ct. at 1949 (quotation marks, alteration, and

citation omitted). In other words, the “[f]actual allegations must be enough to raise

a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555, 127 S. Ct. 1955, 1965 (2007).

      We also review de novo a district court’s determination and application of

state law in a diversity case. See Gen. Am. Life Ins. Co. v. AmSouth Bank, 100

F.3d 893, 897 (11th Cir. 1996). Finally, we review a district court’s denial of a

Rule 59 motion for an abuse of discretion. Drago v. Jenne, 453 F.3d 1301, 1305

(11th Cir. 2006).

      1. Fraudulent Inducement

      Azar first argues that the district court erred in dismissing his claim of

fraudulent inducement in count two. According to Azar, the district court ignored

the misrepresentation of fact that he alleged in his complaint – namely, that Azar

“qualified” for the loans and met underwriting standards for loan approval. Azar

contends this misrepresentation of fact induced him to take the loans, on the belief



                                           7
that National City had determined he could afford to repay the loans and was

willing to incur the risk of such loans.

      Because this is a diversity jurisdiction case, we apply the substantive law of

the state in which the case arose. Pendergast v. Sprint Nextel Corp., 592 F.3d

1119, 1132 (11th Cir. 2010). To state a claim for fraudulent inducement under

Florida law, Azar’s complaint must allege sufficient facts showing that:

(1) National City made a false statement concerning a material fact; (2) National

City knew the misrepresentation was false; (3) National City intended the

misrepresentation to induce Azar’s reliance; and (4) Azar was injured by his

reliance on the misrepresentation. See Thompkins v. Lil’ Joe Records, Inc., 476

F.3d 1294, 1315 (11th Cir. 2007); Biscayne Inv. Group, Ltd. v. Guarantee Mgmt.

Servs., Inc., 903 So. 2d 251, 255 (Fla. Dist. Ct. App. 2005). The first factor

generally requires that the false statement is about a past or existing fact, not

merely an opinion. See Mejia v. Jurich, 781 So. 2d 1175, 1177 (Fla. Dist. Ct. App.

2001). An exception to this rule applies, however, “[w]here the person expressing

the opinion is one having superior knowledge of the subject of the statement and . .

. knew or should have known from facts in his or her possession that the statement

was false.” Id. Under those circumstances, “the opinion may be treated as a

statement of fact.” Id.



                                            8
      Here, the district court correctly found that Azar failed to plead a plausible

claim of fraudulent inducement. Azar contends that, by approving his loans,

National City misrepresented that he “qualified” for the loans and met

underwriting standards. The mere fact that his loans were approved, however,

does not constitute a false statement of fact. Otherwise, every loan approval could

potentially result in a claim for fraudulent inducement. Likewise, Azar’s personal

belief that the loan approvals meant the bank believed he could repay the loan does

not constitute a misrepresentation of fact that was made by National City. Even if

National City employees had told Azar that they believed he could repay the loan,

such a statement is merely an opinion, which cannot support a cause of action for

fraud. See Thompson v. Bank of New York, 862 So. 2d 768, 770-771 (Fla. Dist.

Ct. App. 2003) (per curiam) (explaining that whether a borrower could afford a

loan was an opinion involving more facts available to the borrower than the seller).

Nor does this case fall into the exception for opinions. See Mejia, 781 So. 2d at

1177. Even though the bank employees had access to certain financial documents

of Azar’s, Azar did not allege that National City had superior knowledge of his

financial status or that it knew his business would continue to decline, which is the

reason Azar alleged he could not make his mortgage payments.

      The only false statement identified in count two of his complaint was



                                          9
National City’s falsification of Azar’s income on his loan applications. We agree

with the district court that this misrepresentation, even if true, reflects an intent to

induce the lender to grant the loan, not to entice Azar to take the loan. The only

evidence of inducement in Azar’s complaint is his bare allegation that National

City would financially benefit from loaning the money to him. Not only is this

assertion devoid of any factual support, but it defies common sense to believe that

a bank would profit from loaning money to someone it knows cannot repay it.

Although Azar suggests on appeal that the bank employees would receive

commissions and additional money from making the loans, he did not make this

allegation in his complaint. Accordingly, we conclude that Azar’s factual

allegations of fraudulent inducement are insufficient “to raise a right to relief above

the speculative level” and were thus properly dismissed pursuant to Rule 12(b)(6).

Twombly, 550 U.S. at 555, 127 S. Ct. at 1965.

       2. Negligent Misrepresentation

       Azar next argues that the district court erred in dismissing his claim in count

three of negligent misrepresentation. Azar acknowledges that count three was

entitled “fraudulent misrepresentation,” but he submits, for the first time on appeal,

that this was a labeling error. He contends that count three alleged sufficient facts

to satisfy the cause of action for negligent misrepresentation. Specifically, Azar



                                            10
reasserts his allegation that National City employees misrepresented to him that he

qualified for the loans and met underwriting standards.

      Absent special circumstances, it is well established that we will not consider

an issue raised for the first time on appeal. See Access Now, Inc. v. Southwest

Airlines Co., 385 F.3d 1324, 1331-32 (11th Cir. 2004). The special circumstances

under which we have considered a newly-raised issue are: (1) the issue involves a

pure question of law and the refusal to consider it would result in a miscarriage of

justice; (2) the appellant had no opportunity to raise the issue in the district court,

(3) substantial justice is at stake; (4) the proper resolution of the issue is beyond

any doubt; and (5) the issue involves “significant questions of general impact or of

great public concern.” Id. at 1332 (quotation marks and citation omitted). While

we generally construe pleadings liberally for a pro se litigant, we cannot do so here

because Azar is a licensed attorney. See Olivares v. Martin, 555 F.2d 1192, 1194

n.1 (5th Cir. 1977).

      Our review of the record reflects that Azar did not argue in the district court

that count three was mistakenly entitled fraudulent misrepresentation as opposed to

negligent misrepresentation. To the contrary, he consistently maintained that his

complaint satisfied the elements of fraudulent misrepresentation. Even in his Rule

59 motion, Azar requested that he be allowed to replead his claim of fraudulent



                                            11
misrepresentation and plead “new causes of action” for negligent misrepresentation

and breach of contract.4 R3-79 at 1 (emphasis added). In light of Azar’s failure to

raise this issue in the district court and the absence of any exceptional

circumstances, we decline to consider this issue on appeal. See Access Now, 385

F.3d at 1331.

B. Attorneys’ Fees

       1. National City’s Contractual Right to Fees

       Azar argues that National City had no contractual right to attorneys’ fees.5

He contends that National City incurred its fees as a result of responding to Azar’s

allegations of tortious wrongdoing before the note was executed, not as a result of

enforcing the note. Moreover, he submits that the fact that he sought rescission

and cancellation of the note and mortgages does not preclude the underlying tort

action.

       We review the district court’s decision to grant attorneys’ fees for an abuse



       4
        Azar argues in his reply brief that the district court should have allowed him to amend
his complaint to plead both negligent and fraudulent misrepresentation. This was not the
argument that Azar made in his initial brief and it is therefore precluded from review. See
United States v. Valladares, 544 F.3d 1257, 1269 n.2 (11th Cir. 2008) (per curiam).
       5
         Azar also contends that National City was not entitled to costs under the contractual
provisions. However, he did not object in the district court to the $357.60 of costs incurred by
National City, and the Clerk entered a bill of costs in this amount. See R3-83 at 2 n.3. As Azar
did not raise this issue in the district court, we will not consider it on appeal. See Access Now,
385 F.3d at 1331.

                                                12
of discretion, reviewing legal questions de novo and factual findings for clear

error. Bivens v. Wrap It Up, Inc., 548 F.3d 1348, 1351 (11th Cir. 2008) (per

curiam). We apply state law in determining the meaning of a contractual attorney

fee provision. See Sure-Snap Corp. v. State of Vermont, 983 F.2d 1015, 1017

(11th Cir. 1993).

      Florida law requires each party to pay for its own attorneys’ fees unless a

contract or statute otherwise provides. Price v. Tyler, 890 So. 2d 246, 251 (Fla.

2004). In Caufield v. Cantele, 837 So. 2d 371, 378 (Fla. 2002), the Florida

Supreme Court considered a contractual provision that allowed fees to be awarded

to the prevailing party “in connection with any litigation arising out of the

contract.” The Florida Supreme Court held that tortious “claims of fraudulent

misrepresentation concerning the subject matter of the contract do ‘arise out of the

contract.’” Caufield, 837 So. 2d at 378. Consequently, the court concluded that

the prevailing-party provision should apply. See id. at 379.

      A Florida appellate court subsequently clarified that “Caufield was based on

a misrepresentation which occurred before the making of the contract.” Broward

Marine, Inc. v. Palm Beach Polo Holdings, Inc., 902 So. 2d 855, 857 (Fla. Dist. Ct.

App. 2005). Similar to Caufield, the plaintiffs in Broward alleged that fraudulent

misrepresentations had occurred before the parties entered into the contract. Id. at



                                          13
855-56. The plaintiffs sued on a theory of fraudulent inducement, seeking

rescission of the contract and damages. See id. The defendants prevailed, and the

trial court awarded them attorneys’ fees under the prevailing party provision of the

contract. Id. at 856. The court held that Caufield required an award of attorneys’

fees under these circumstances. Id. at 857.

       The rationale of Caufield and Broward apply with equal force here. As in

those cases, National City’s fraudulent misrepresentations allegedly induced the

contracts or loans at issue. Thus, contrary to Azar’s contention, the fact that he has

asserted a tort claim of fraudulent inducement does not preclude application of the

contractual provisions for attorneys’ fees. See Broward, 902 So. 2d at 855-57.

Here, the contractual provisions primarily refer to costs and fees associated with

enforcing the loans.6 The record supports the district court’s finding that National

City’s “actions were clearly taken in furtherance of its right to enforce [Azar’s]

payment obligation.” R3-83. Among the relief requested in Azar’s complaint was



       6
         National City relied upon three different contractual provisions providing for recovery
of attorneys’ fees. Under the default terms of the June 2007 mortgage, if a mortgagor defaulted
on the note, the lender was entitled “to enforce the Mortgage by a judicial sale of the Property to
pay the balance of the secured indebtedness plus reasonable attorney’s fees, costs and expenses
to the maximum extent permitted by law.” R3-75, Exh. 1 at 2. The terms of the January 2006
note granted the lender “the right to be paid by [Azar] for all of its costs and expenses in
enforcing this Note . . . Those expenses include, for example, reasonable attorneys’ fees.” Id. at
Exh. 2 at 2. Finally, the June 2007 equity reserve agreement provided that if Azar did not meet
the repayment terms of the agreement, National City “shall be entitled to reasonable court costs
and attorneys’ fees for independent counsel that [it] hires.” Id. at Exh. 3 at 3.

                                                14
the rescission and cancellation of his mortgage, and an injunction to prevent

National City from foreclosing on his residence based on his default of the

mortgage and equity loans. Had Azar succeeded in obtaining this relief, National

City would have lost the right to collect on its loans. Consequently, National City

was required to defend against Azar’s claims in order to enforce those loans. The

district court therefore did not abuse its discretion in awarding attorneys’ fees to

National City under the contractual provisions of the mortgage, note, and equity

line of agreement.

      2. Reasonableness of Award

      Last, Azar argues that the attorneys’ fees awarded were unreasonable and

excessive because only a small portion of National City’s pleadings were directed

at the defense or enforcement of the note or mortgage.

      Once again, Azar raises an issue on appeal that was not presented to the

district court. Azar’s sole objection to the reasonableness of the fees was that

reimbursement for research and conferences was “not fair nor equitable.” R3-82 at

2. Azar expressly did not object to the hourly fees charged by National City’s

attorneys. Nor did Azar raise the argument he now presents on appeal – that the

fees are unreasonable because National City only expended a limited amount of

time in defending or enforcing the loans. Consequently, we decline to consider



                                           15
this argument on appeal. See Access Now, 385 F.3d at 1331.

                                III. CONCLUSION

      Based on the foregoing, we AFFIRM the district court’s dismissal of Azar’s

claims in his second amended complaint and we also AFFIRM the award of

attorneys’ fees and costs to National City.

      AFFIRMED.




                                          16
