        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

             HSBC BANK USA, As Trustee For PHH 2007-2,
                           Appellant,

                                     v.

 DAVID MAGUA; SYLVIA J. MAGUA; WESTON LAKES MAINTENANCE
     ASSOCIATION INC.; and THE TOWN FOUNDATION, INC.,
                          Appellees.

                              No. 4D17-1685

                             [March 28, 2018]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Joel T. Lazarus, Senior Judge; L.T. Case No. 07-33789
CACE.

   Nicholas S. Agnello, Matt Mitchell and Sabrina Niewialkouski of Burr
& Forman LLP, Fort Lauderdale, for appellant.

  Nicole R. Moskowitz of Neustein Law Group, P.A., Aventura, for
appellees David and Sylvia J. Magua.

CIKLIN, J.

    This appeal arises out of a foreclosure complaint filed by the bank.
After a bench trial, the trial court entered a foreclosure judgment in favor
of the bank and the homeowners appealed. With respect to that first
appeal, the homeowners argued that (1) the bank lacked standing and (2)
it failed to prove damages and satisfaction of a condition precedent, as
the exhibits used to prove these elements constituted hearsay. In lieu of
an answer brief in the first appeal, the bank filed a confession of error
which stated that it “confesses to error and does not oppose reversal of
the Final Judgment.”

   Then, as to the first appeal, this court issued an opinion which
provided the following: “Appellee confesses error, and does not oppose
reversal of the final judgment. After reviewing the record, we agree that
the trial court erred, and reverse the final judgment of foreclosure
entered by the trial court and remand for further proceedings.” Magua v.
HSBC Bank USA, 197 So. 3d 1274, 1274 (Fla. 4th DCA 2016). On
remand, the homeowners moved for and were awarded attorney’s fees
and costs.

   Now on this second appeal, the bank challenges the award of fees and
costs awarded following the agreed upon reversal asserting that fees and
costs cannot be awarded because the reversal came about upon the
bank’s confession of error regarding standing. The bank cites a recent
opinion of this court, Nationstar Mortgage LLC v. Glass, 219 So. 3d 896
(Fla. 4th DCA 2017). There, this court recognized the following:

      [T]o be entitled to fees pursuant to the reciprocity provision
      of section 57.105(7), the movant must establish that the
      parties to the suit are also entitled to enforce the contract
      containing the fee provision. A party that prevails on its
      argument that dismissal is required because the plaintiff
      lacked standing to sue upon the contract cannot recover fees
      based upon a provision in that same contract.

Id. at 899.

   The bank argues that because this court reversed the final judgment
in the first appeal based on the homeowners’ argument that the bank
lacked standing, the trial court could not award fees based on a
provision of the mortgage contract which the bank had no right to
enforce. This, the bank argues, has become the “law of the case.”

    We find the bank’s argument fails though because as to the first
appeal, the bank confessed error without specification as to which of the
two appellate issues it was confessing error.         Likewise, this court
(without objection or a motion to reconsider or clarify) reversed based on
a finding of an unspecified error. Thus, it is not apparent that this court
considered the standing issue, a requirement under the law of the case
doctrine. Fla. Dep’t of Transp. v. Juliano, 801 So. 2d 101, 105 (Fla. 2001)
(“The doctrine of the law of the case requires that questions of law
actually decided on appeal must govern the case in the same court and
the trial court, through all subsequent stages of the proceedings.”).

   The bank argues that this court implicitly or necessarily decided the
standing issue when it reversed. See id. at 106. (“[T]he law of the case
doctrine may foreclose subsequent consideration of issues implicitly
addressed or necessarily considered by the appellate court’s decision.”).
However, it cannot be said that this court’s reversal equates to an
implicit or necessary finding on the standing issue. Clearly, reversal
could have been based solely on the second (condition precedent) ground

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raised by the homeowners. See, e.g., Edmonds v. U.S. Bank Nat’l Ass’n,
215 So. 3d 628, 629 (Fla. 2d DCA 2017) (declining to reach remaining
issues raised on appeal where reversal was based on dispositive issue of
whether bank complied with condition precedent to filing suit). For
similar reasons, the bank’s judicial estoppel argument is unpersuasive. 1

    Based on the foregoing, we affirm.

    Affirmed.

LEVINE and KLINGENSMITH, JJ., concur.

                             *        *         *

    Not final until disposition of timely filed motion for rehearing.




1 The bank also contends that this court’s denial of the homeowners’ motion for
appellate fees in the first appeal must have been based on the bank’s lack of
standing, and points to the arguments made by the bank in its response to the
motion. This court denied the motion before the Glass opinion issued and the
order contains no elaboration. We decline to attempt to divine a previous
panel’s reasons for denying the motion.

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