MAINLANDS OF TAMARAC BY THE GULF UNIT NO. FOUR ASSOCIATION, INC. AND CONDOMINIUM MANAGEMENT RESOURCES, INC., APPELLANTS,
v.
JACK F. MORRIS AND GRACE MORRIS, HIS WIFE, APPELLEES

Fla. 2d DCA | 1980-07-25
No. 79-2192
BOARDMAN and DANAHY, JJ., concur.
388 So. 2d 226 Florida District Court of Appeal, Second District (1980) Positive Treatment
Cited by 20 cases

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Synopsis

The Association and Management appealed a trial court's order denying attorney fees to the Association and partially denying costs. The court reversed the denial of attorney fees to the Association under Section 718.303, Florida Statutes, which provides that the prevailing party in a suit between unit owners and associations is entitled to recover reasonable attorney's fees, but affirmed the denial of fees to Management and the apportionment of costs.


Holding

The Association is entitled to recover reasonable attorney fees as the prevailing party under Section 718.303, and the failure to specifically plead entitlement to attorney fees does not preclude the award given the parties' stipulation and appellees' failure to object. Management is not entitled to attorney fees because it is neither a unit owner nor an association. The trial court's denial of certain costs was within its discretion.


Headnotes

[1] A prevailing party in an action between unit owners and an association under Section 718.303, Florida Statutes, is entitled to recover reasonable attorney's fees.

[2] A party's failure to specifically plead entitlement to attorney's fees does not preclude an award when the parties have stipulated to address the issue post-trial and the…

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Key Quotes

“The prevailing party is entitled to recover reasonable attorney's fees.”

This language from Section 718.303 establishes the statutory basis for awarding attorney fees to the prevailing party in disputes between unit owners and associations.

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Facts & Procedural History

Unit owners Jack and Grace Morris sued the Association and Management seeking injunctive relief, specific performance, and damages regarding the insta…

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Opinion of the Court
HOBSON, Acting Chief Judge.

HOBSON, Acting Chief Judge.

Appellants Mainland of Tamarac By The Gulf Unit No. Four Association (the Association) and Condominium Management Resources, Inc. (Management) appeal an order assessing costs, granting appellees’ motion to strike appellants’ motion for award of attorney fees, and denying appellants’ motion for award of attorney fees.

Unit owners Jack and Grace Morris brought suit against the Association and Management seeking injunctive relief, specific performance and damages with regard to the installation and operation of a catch basin and drainage system adjoining appel-lees’ property. The court, after a nonjury trial, entered final judgment in favor of the Association and Management.

Appellees’ complaint included an allegation that appellees were entitled to reasonable attorney fees pursuant to Section 718.-303, Florida Statutes. Appellants’ answer specifically denied the allegation that Section 718.303 provided entitlement to attorney fees and further made no specific plea .for attorney fees.

The parties stipulated during trial that the question of attorney fees and costs to the prevailing party would be heard at a hearing subsequent to the final hearing in the case. The stipulation was filed with the court and in the final judgment the court reserved jurisdiction for the purpose of obtaining appropriate motions for awarding attorney fees and costs. After a hearing on the matter, the court denied appellants’ motion for attorney fees; awarded appellants costs in part and denied appellants costs in part.

We reverse that portion of the final judgment that denied attorney fees to the Association. We affirm the portion of the final judgment that denied attorney fees to Management and apportioned costs.

Section 718.303 provides that unit owners and associations may bring actions against each other or against the developer’s directors. The section goes on to state that “[t]he prevailing party is entitled to recover reasonable attorney’s fees.” This section does not apply to Management since it is neither a unit owner nor an association. Therefore, the trial court correctly denied Management attorney fees.

Regarding the Association, however, we hold that Section 718.303 specifically provides for attorney fees where the association prevails in a suit brought against it by unit owners. In view of the stipulation entered into between the parties and appel-lees’ failure to object to the matter during trial, the failure of the Association to plead entitlement to attorney fees does not preclude the award.

We note that the Association and Management employed the same attorneys in this case. It will be necessary for the Association to present evidence at a subsequent hearing on just which portion of the total fee applies to the Association.

The denial of appellants’ costs for certain depositions which were not ultimately used at trial is a matter within the sound discretion of the trial court. There is no showing that this discretion was abused in the instant case; therefore, we will not disturb that portion of the judgment.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

BOARDMAN and DANAHY, JJ., concur.


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Citator

Cited By

  • Stockman v. Downs, 573 So. 2d 835 (Fla. 1991)
    …er judgment not fatal to claim where issue of attorney’s fees was raised at pretrial conference and plaintiff’s pretrial statement listed defendant’s entitlement to fees as an issue); Mainlands of Tamarac by Gulf Unit No. Four Ass’n, Inc. v. Morris, 388 So. 2d 226 (Fla.2d DCA 1980) (parties’ stipulation during trial that the question of attorney’s fees would be heard subsequent to final hearing would permit recovery of attorney’s fees despite failure to plead entitlement to fees). We have reviewed the record…
  • Brown v. Gardens BY THE SEA S. Condo. Ass'n, 424 So. 2d 181 (Fla. 4th DCA 1983)
    …ract. However their memoranda in support adequately made the statutory claim which the court did correctly consider in light of the pre-trial stipulation and reservation of jurisdiction previously mentioned. See Mainlands of Tamarac, etc. v. Morris, 388 So. 2d 226 (Fla. 2d DCA 1980). It was pointed out that Count VII of the appellees’ amended complaint was brought pursuant to the provisions of Section 501.201, et seq., Florida Statutes (1981) and that there, too, the appellants prevailed. Appellants’ statuto…
  • Green v. SUN Harbor Homeowners' Ass'n, Inc., 730 So. 2d 1261 (Fla. 1998)
    …ment of Health & Rehabilitative Servs. v. Coyle, 624 So. 2d 400, 401 (Fla. 5th DCA 1993); Brown v. Gardens by the Sea South Condominium Ass’n, 424 So. 2d 181, 183 (Fla. 4th DCA 1983); Mainlands of Tamarac by Gulf Unit No. Four Ass’n, Inc. v. Morris, 388 So. 2d 226, 227 (Fla. 2d DCA 1980), and it did not provide the authority under which such fees would be sought. See, e.g., Dealers Ins. Co. v. Haidco Inv. Enter., Inc., 638 So. 2d 127, 129-30 (Fla. 3d DCA 1994); Res Panel Refrigeration Corp., 636 So. 2d at 570…

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