STEVEN S. KIROU, APPELLANT,
v.
OCEANSIDE PLAZA CONDOMINIUM ASSOCIATION, INC., A NOT-FOR-PROFIT FLORIDA CORPORATION, APPELLEE
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This case concerns the interpretation of an attorneys' fees provision in a condominium declaration. The court held that only the prevailing party in the overall proceeding is entitled to recover fees, and reversed the trial court's award of fees to the association despite Kirou's ultimate victory on the merits.
Only Kirou, as the true prevailing party in the proceeding, was entitled to recover attorneys' fees. The association was not entitled to fees despite succeeding on the counterclaim because it lost the war, even though it won an intermediate skirmish. The determination of which party prevails depends on the overall outcome of the proceeding, not on isolated victories on component issues.
[1] A prevailing party is entitled to recover attorneys' fees in a proceeding arising from an alleged failure of a unit owner to comply with condominium documents or rules an…
[2] A party who ultimately succeeds in a condominium dispute, despite intermediate procedural victories on ancillary issues, is the prevailing party for the purpose of recove…
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Join FLexlaw to unlock all legal intelligence“When the dust — or whatever— had cleared, they were still there. Thus, notwithstanding the intermediate battle, or rather skirmish, over the counterclaim, which had no effect on the ultimate result, Kirou plainly won, and the association plainly lost the war.”
Establishes that the prevailing party analysis focuses on the ultimate outcome of the proceeding, not intermediate victories on component issues.
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Join FLexlaw to unlock all legal intelligenceThe Oceanside Plaza Condominium Association filed a complaint against unit owner Steven Kirou and his tenants (the Gewirtzes) seeking to cancel a pet …
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SCHWARTZ, Chief Judge.
This case concerns the proper interpretation of the following portion of the Oceanside Plaza Declaration of Condominium:
Costs and Attorneys’ Fee. In any proceeding arising because of an alleged failure of a Unit Owner to comply with the terms of the Condominium Act, the Condominium Documents or the rules and regulations adopted pursuant thereto, the prevailing party shall be entitled to recover the costs of the proceeding and Reasonable Attorneys’ Fees as may be awarded by the court.
The monumental action which raises the issue began when the condominium associa tion filed a complaint against one of its unit owners, the appellant Kirou, and his tenants, the Gewirtzes, seeking to cancel his “Pet Agreement” and remove the offending animals on the ground that the Gewirtzes’ dogs had disgraced themselves in and on the common elements. Kirou filed an answer and what was styled a “counterclaim” for a declaration that the rules and regulations invoked by the association did not apply to the instant situation. The trial judge granted the association’s motion for judgment on the pleadings as to the counterclaim, but, after the trial, ruled for Ki-rou on the merits, holding that the association was not entitled to evict the dogs. Accordingly, he awarded Kirou $1,500.00 in attorneys’ fees.1 In the order now on review, however, he also assessed $1,350.00 in fees in Oceanside’s favor because it had succeeded in respect to the counterclaim. We reverse.
It is clear to us that only Kirou was entitled to recover under the attorneys’ fees provision in question. The “proceeding” below was one in which the association sought to get the dogs out, and Kirou tried to keep them in. When the dust — or whatever— had cleared, they were still there. Thus, notwithstanding the intermediate battle, or rather skirmish, over the counterclaim, which had no effect on the ultimate result,2 Kirou plainly won, and the association plainly lost the war. It was therefore not the or even a “prevailing party” in the proceeding and thus should not have been awarded fees. Kendall East Estates, Inc. v. Banks, 386 So. 2d 1245 (Fla. 3d DCA 1980), and cases cited; see also, Steinhardt v. Eastern Shores White House Association, Inc., 413 So. 2d 785 (Fla. 3d DCA 1982).
Reversed.3
. The association does not challenge this award.
. While the appellee claims, and the trial court held that the counterclaim presented a separable controversy, there is no doubt that the position asserted could as well have been denominated an affirmative defense. If that had been the case, it would not have been even arguable that the association was entitled to fees. The result should not, however, turn upon mere questions of nomenclature. Moreover, and more important, pleading intricacies do not control the only issue before us, which is what is meant by the pertinent clause of the agreement.
.We are not uninfluenced by the hope that this result, as well as our own additional award of $1,500.00 against the association for appellate fees, will discourage the maintenance of such actions — of which “trivial” is a hyperbolic description — in courts already overburdened by matters which, unlike this, justify their attention.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Folta v. Joseph Bolton, M.D., 493 So. 2d 440 (Fla. 1986)…and a counterclaim are filed and the plaintiff prevails on one claim and the defendant prevails on the other claim, the “prevailing party” is deemed to be the net winner when the dust settles. Kirou v. Oceanside Plaza Condominium Association, Inc., 425 So. 2d 650 (Fla. 3d DCA 1983); Kendall East Estates, Inc. v. Banks, 386 So. 2d 1245 (Fla. 3d DCA 1980). In Kirou, a condominium association sought to cancel a “pet agreement” and remove dogs from the premises. The owner, Kirou, filed a counterclaim for a decl…
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F.V. Scutti v. Daniel E. Adache & Assocs. Architects, P.A., 515 So. 2d 1023 (Fla. 4th DCA 1987)…stances the rule established by the cases seems to be that, where a plaintiff loses on his complaint, the defendant is the prevailing party whether he is a successful counterclaimant or not. Thus, in Kirou v. Oceanside Plaza Condominium Association, 425 So. 2d 650 (Fla. 3d DCA 1983), a condominium association sued a unit owner to cancel a “pet agreement” and require removal of the offending animals. The unit owner counterclaimed for a declaration that the rules and regulations invoked by the association did n…1 / 2
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In re Est. OF Goldie Simon. Bernard Gastel v. Levin & Fishman, P.A., 549 So. 2d 210 (Fla. 3d DCA 1989)…es rendered in connection with the other claims raised against Gastel in their petition to surcharge, on which claims ap-pellees did not prevail. See Folta v. Bolton, 493 So. 2d 440 (Fla.1986); Kirou v. Oceanside Plaza Condominium Association, Inc., 425 So. 2d 650 (Fla. 3d DCA 1983); Zaremba Florida Company v. Klinger, 550 So. 2d 1131 (Fla. 3d DCA 1989). We conclude the trial court did not abuse its discretion in awarding attorney’s fees against Gastel under section 733.609, Florida Statutes. We rule, howeve…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Steinhardt v. E. Shores White House Ass'n, Inc., 413 So. 2d 785 (Fla. 3d DCA 1982)
- Weiss v. Turtletaub, 386 So. 2d 1245 (Fla. 3d DCA 1980)
- Kendall E. Ests., Inc. v. David P. Banks & Joan S. Banks, 386 So. 2d 1245 (Fla. 3d DCA 1980)