                                       IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA

PAUL R. MESSER AND BETTY               NOT FINAL UNTIL TIME EXPIRES TO
J. MESSER,                             FILE MOTION FOR REHEARING AND
                                       DISPOSITION THEREOF IF FILED
      Appellant,

v.                                     CASE NO. 1D15-1349

MARK JAMES SANDER AND
JULIA DILS SANDER, HIS
WIFE,

      Appellees.


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Opinion filed January 6, 2016.

An appeal from the Circuit Court for Leon County.
George S. Reynolds, III, Judge.

Larry E. Levy of the Levy Law Firm, Tallahassee, for Appellant.

Ross Stafford Burnaman, Tallahassee, for Appellees.




PER CURIAM.

      The Appellants, Paul Messer and Betty Messer, seek review of the trial court’s

final judgment on remand that denied their motion for trial-level attorney’s fees and

costs. In a cross-appeal, the Appellees, Mark Sander and Julia Sander, seek review
of the trial court’s final judgment on remand that granted the Appellants’ motion for

appellate-level attorney’s fees. We find that the trial court properly denied the

Appellants’ motion for trial-level attorney fees and improperly granted the

Appellants’ motion for appellate-level attorney fees.

      This appeal stems from an action for declaratory judgment filed by the

Appellants against the Appellees for a statutory easement by way of necessity

pursuant to section 704.01(2), Florida Statute (2014). The trial court found that the

Appellants were not entitled to a statutory easement and ordered the Appellants to

pay the Appellees’ attorney’s fees and costs. On appeal, this Court reversed and

remanded the final judgment after holding the Appellants were entitled to a statutory

easement.    This Court also provisionally granted the Appellants’ motion for

appellate-level attorney’s fees and remanded the issue to the trial court to determine

whether the Appellants were entitled to attorney’s fees pursuant to the governing

statute, which provides that attorney’s fees and costs are owed to either party for

“unreasonable refusal to comply” with the provisions of the easement statute. §

704.04, Fla. Stat. (2014). On remand, the trial court entered a final judgment in

accordance with this Court’s holding and awarded the Appellants appellate-level

attorney’s fees and costs, but the trial court did not award trial-level attorney’s fees

and costs after finding the Appellants unreasonably refused to comply with the

easement statute.

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      This Court reviews a denial of an appellant’s motion for attorney’s fees and

costs under the abuse of discretion standard. See Fla. State Univ., Bd. of Trs. v.

Monk, 112 So. 3d 173, 173-47 (Fla. 1st DCA 2013) (Mem.); Moore v. Hillsborough

Cty. Sch. Bd., 987 So. 2d 1288, 1289 (Fla. 1st DCA 2008). Section 704.04 provides

that attorney’s fees and costs are owed to either party for “unreasonable refusal to

comply with the provisions of s[ection] 704.01(2).” § 704.04, Fla. Stat. (2014).

Here, in the final judgment on remand, the court did not explain how it reached the

conclusion of law that the parties acted reasonably at the trial level. However, in its

findings of fact, the court found that (1) the Appellees had expended thousands of

dollars to improve and maintain the easement and the Appellants had not contributed

to the improvement or maintenance of the easement; (2) the Appellants had rarely

used the road in the past 20 years and the Appellees did not tell the Appellants they

were not allowed to use the road; and (3) the Appellants never offered to compensate

the Appellees for the easement until the case was remanded. While there was

evidence that both parties behaved unreasonably, these findings provide competent,

substantial evidence to support the court’s conclusion that the Appellants were not

due trial-level attorney’s fees and costs because they acted unreasonably.

      As to appellate attorney’s fees, it was not unreasonable for the Appellees, after

the trial court ruled the Appellants were not entitled to an easement, to then not grant

the Appellants an easement. In fact, it would have been unreasonable if they had

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done so.

      We AFFIRM the denial of the Appellants’ motion for trial-level attorney’s

fees, and REVERSE the trial court’s final judgment on remand that granted the

Appellants’ motion for appellate-level attorney’s fees.

ROBERTS, C.J., THOMAS and RAY, JJ., CONCUR.




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