Kent Walter Miller and Judith A. Miller v. ARCPE Bahamas, LLC, Successor in Interest to CapitalSource International, LLC f/k/a CaptialSource International, Inc.

FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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Case No. 5D2024-2573
LT Case No. 2017-CA-000003
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KENT WALTER MILLER and
JUDITH A. MILLER,
Appellants,
v.
ARCPE BAHAMAS, LLC,
Successor in Interest to
CapitalSource International,
LLC f/k/a CapitalSource
International, Inc.,
Appellees.
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On appeal from the Circuit Court for Flagler County.
Kathryn Diane Weston, Judge.
S. Brian Bull, of Scott, Harris, Bryan, Barra & Jorgensen, P.A.,
Palm Beach Gardens, for Appellants.
Nancy M. Wallace & Kristen M. Fiore, of Akerman, LLP,
Tallahassee, and Christian P. George, David Otero, and Adam C.
Remillard, of Akerman, LLP, Jacksonville, for Appellee.
November 14, 2025
KILBANE, J.
This appeal relates to a series of cases stemming from a failed
luxury development in the Bahamas. After successfully enforcing
promissory notes used to purchase lots in the proposed resort

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community, the trial court awarded attorneys’ fees to the note
holder. Because the notes provided for fees only if the debt was
accelerated, we reverse.
Facts
Kent and Judith Miller (“Millers”) executed promissory notes1
to buy undeveloped lots at a proposed community titled “Ginn Sur
Mer” on Grand Bahama Island. The notes required monthly
interest-only payments followed by a balloon payment due by a
specified maturity date. Upon default, the notes provided the
option to accelerate the total debt.
In May 2010, the Millers ceased making payments on both
notes. On May 6, 2011, the note holder sent the Millers notices
(“Default Notices”) informing them of their default and its express
intent to accelerate the full amount due on each note if default was
not cured within thirty days. The Millers made no further
payments. The notes matured as of January 1, 2012, and May 1,
2012, respectively.
More than five years after the Default Notices were sent but
less than five years after each note’s maturity date, the note
holder2 filed suit to collect sums due under the notes.3 While
litigation was pending, ARCPE Bahamas LLC (“ARCPE”)
purchased the Millers’ notes, along with other similarly situated
borrowers. Significant issues were resolved for ARCPE via
summary judgment, including the statute of limitations defense
based on the assertion that the Default Notices accelerated the
debt. The trial court concluded suit was not time barred because
1. Kent Miller executed the first note individually on
December 22, 2006, and the Millers executed the second note
jointly on March 23, 2007.
2. CapitalSource International LLC was the successor in
interest to the original lender.
3. The note holder filed to enforce Mr. Miller’s note on
December 30, 2016, and the Millers’ note on April 28, 2017. These
cases were later consolidated below.

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it was filed within five years of each note’s maturity date and the
Default Notices did not accelerate the debt.
The trial court entered final judgment for ARCPE with a
finding that it was entitled to attorneys’ fees. Upon ARCPE’s
motion, the trial entered final judgment awarding $168,246.39 in
attorneys’ fees and costs.4 The Millers timely appeal.
Merits
We review entitlement to attorney’s fees provided by contract
de novo. Wells Fargo Bank Nat’l Ass’n for Morgan Stanley ABS
Cap., MSAC 2007-HE3 v. Bird, 234 So. 3d 833, 834 (Fla. 5th DCA
2018).
Florida “follows the ‘American Rule’ that attorney’s fees may
only be awarded by a court pursuant to an entitling statute or an
agreement of the parties.” Air Turbine Tech., Inc. v. Quarles &
Brady, LLC, 165 So. 3d 816, 821 (Fla. 4th DCA 2015) (quoting
Dade County v. Peña, 664 So. 2d 959, 960 (Fla. 1995)). “In the
absence of an ambiguity on the face of a contract, it is well settled
that the actual language used in the contract is the best evidence
of the intent of the parties, and the plain meaning of that language
controls.” Pesantes v. Kelley, 406 So. 3d 340, 344 (Fla. 3d DCA
2025) (quoting Acceleration Nat’l Serv. Corp. v. Brickell Fin. Servs.
Motor Club, Inc., 541 So. 2d 738, 739 (Fla. 3d DCA 1989)).
In Section 3(A) of the Millers’ notes, they agreed to make
monthly payments and ensure the total amount due was paid by a
specified date:
3. PAYMENTS
(A) Time and Place of Payments
I will pay interest only by making a payment
every month.
4. The Millers concede that ARCPE was entitled to taxable
costs in the amount of $969.47.

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I will make my monthly payment on the first day
of each month beginning on [specified date]. I
will make these payments every month until I
have paid all of the principal and interest and
any other charges described below that I may
owe under this Note. Each monthly payment
will be applied as of its scheduled due date and
will be applied to interest before Principal. If,
on [specified date], I still owe amounts under
this Note, I will pay those amounts in full on
that date, which is called the “Maturity Date.”
But if instead the Millers defaulted on their monthly
payments, the note holder could pursue acceleration of the debt
under section 7 of the notes:
7. BORROWER’S FAILURE TO PAY AS
REQUIRED
. . . .
(B) Default
If I do not pay the full amount of each monthly
payment on the date it is due, I will be in default.
(C) Notice of Default
If I am in default, the Note Holder may send me
a written notice telling me that if I do not pay
the overdue amount by a certain date, the Note
Holder may require me to pay immediately the
full amount of Principal which has not been paid
and all interest that I owe on that amount. That
date must be at least 30 days after the date on
which the notice is mailed to me or delivered by
other means.
. . . .
(E) Payment of Note Holder’s Costs and
Expenses

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If the Note Holder has required me to pay
immediately in full as described above, the Note
Holder will have the right to be paid back by me
for all of its costs and expenses in enforcing this
Note to the extent not prohibited by applicable
law. Those expenses include, for example,
attorneys’ fees.5
The fee provision in section 7(E) is inapplicable here. The
plain language of the notes provide that if the borrower failed to
make a monthly payment, the note holder could send written
notice of its intention to accelerate the debt unless default was
cured. If default was not cured within thirty days, the note holder
may require the borrower to pay the full debt “immediately.”
Although the note holder sent the Default Notices—a prerequisite
to acceleration—they did not actually accelerate the debt and
require immediate payment of the total due. While the total debt
could have been rendered immediately due and payable, the note
holder did not take steps to require the borrower to pay the debt
by filing litigation or otherwise pursuing the accelerated debt.
Instead, years later, a successor note holder filed suit for the total
sum due based on the Millers’ failure to pay the debt as of the
maturity date. Likewise, the trial court granted final summary
judgment based on a finding that the Millers breached each note
by failing to pay the debts “on or before its maturity date.”
ARCPE relies on section 3(A) of the note in claiming it
required the Millers to pay in full. But section 3(A) merely
explains the specified time and place of payments agreed to in
advance by the parties. This is distinguishable from section 7,
which requires immediate payment in full based on uncured
default. This understanding is supported by the structure of the
notes, where subsections (C), (D), and (E) use nearly identical
language located within section 7:
5. Section 7(E) is the only provision that references attorneys’
fees.

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(C) Notice of Default
If I am in default, the Note Holder may send me
a written notice telling me that if I do not pay
the overdue amount by a certain date, the Note
Holder may require me to pay immediately the
full amount of Principal which has not been paid
and all interest that I owe on that amount. . . .
(D) No Waiver By Note Holder
Even if, at a time when I am in default, the Note
Holder does not require me to pay immediately
in full as described above, the Note Holder will
still have the right to do so if I am in default at
a later time.
(E) Payment of Note Holder’s Costs and
Expenses
If the Note Holder has required me to pay
immediately in full as described above, the Note
Holder will have the right to be paid back by me
for all of its costs and expenses in enforcing this
Note to the extent not prohibited by applicable
law.
(emphasis added).6
ARCPE also asserts section 7(D) supports its entitlement to
fees because it did not waive its right to accelerate the debt. But
ARCPE prevailed both below and on appeal on its argument that
6. In the answer brief, ARCPE argues section 7(E)’s language
that “the Note Holder has required me to pay immediately in full
as described above,” should include section 3(A), “which clearly is
above paragraph 7(E).” While section 3(A) is literally above section
7(E) in the document, this argument belies the language and
structure itself and is unpersuasive.

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it did not accelerate the debt.7 Had the note holder accelerated the
debt based on the Millers’ continuing default,8 this provision would
have supported its entitlement to fees. But instead ARCPE sought
to enforce the notes based on the Millers’ failure to pay the
unaccelerated debts as of the notes’ maturity dates. ARCPE is
therefore judicially estopped from basing its entitlement to
attorneys’ fees on the inconsistent position that it did accelerate.
See Dora v. Morrison as Co-Tr. of Mary Rose & Douglas Morrison
Family Tr., u/a/d 10/05/2007, 384 So. 3d 290, 294 (Fla. 5th DCA
2024) (“Judicial estoppel provides that one who [successfully]
assumes a particular position or theory in a case is judicially
estopped in a later phase of that same case, or in another case,
from asserting any other or inconsistent position toward the same
parties and subject matter.” (internal quotation marks and
alterations omitted) (quoting Whittingham v. HSBC Bank USA,
7. Despite successfully arguing the Default Notices did not
accelerate the debts such that the claim would be barred by the
statute of limitations, ARCPE inconsistently asserted it did
accelerate the debts when it asserted entitlement to money
damages in its motion for final summary judgment:
On May 6, 2011, without any obligation to do so,
the then-Note holder issued demand letters . . .
to Defendants demanding payment of all
amounts due under the Note. . . . Defendants
further defaulted under the terms of the Note by
failing to pay all amounts owed thereunder on or
before the expiration of the thirty-day deadline
specified in the [Default Notices], rendering all
amounts owed under the Notes immediately due
and payable.
(emphasis added). ARCPE included: “To the extent necessary,
ARCPE hereby demands immediate payment of all amounts due
under the Note.”
8. Under the terms of the notes, default is based on the failure
to make monthly payments, not failure to pay by the maturity
dates.

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NA as Tr. for Holders of Deutsche Alt-A Sec. Mortg. Loan Tr., Series
2007-OA1, 275 So. 3d 850, 852 (Fla. 5th DCA 2019))).
Because ARCPE was not entitled to fees under the notes, we
reverse the fee and cost judgment and remand with instructions to
strike the award of attorneys’ fees.
REVERSED and REMANDED with instructions.
EDWARDS and EISNAUGLE, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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