MAISON GRANDE CONDOMINIUM ASSOCIATION, INC., APPELLANT,
v.
DORTEN, INC., ET AL., APPELLEES
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The Florida Supreme Court held that an escalation clause in a condominium recreation lease entered before 1975 is unenforceable after October 1, 1988, under the contracts clause because retroactive application of Florida's condominium statute would violate constitutional protections. The Court also limited the lessor's recovery of attorney's fees and costs.
The escalation clause is not enforceable after October 1, 1988, because retroactive application of section 718.4015 would violate the contracts clause of the Florida and federal constitutions. Dorten is not entitled to recover attorney's fees and costs because Maison Grande's nonperformance was excused until the statute was declared unconstitutional, and the lease language does not expressly authorize recovery of costs and fees on appeal.
[1] Retroactive application of a statute that would violate the contracts clause of the Florida and federal constitutions is impermissible.
[2] A statute is presumed valid and must be given effect until judicially declared unconstitutional.
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Join FLexlaw to unlock all legal intelligence“Is an escalation clause in a condominium recreation lease that was entered into before 1975 enforceable after October 1, 1988, for the entire term of the ninety-nine-year lease, where the lessor has not agreed to be bound by future changes in the condominium act?”
The certified question of great public importance presented to the Supreme Court
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Join FLexlaw to unlock all legal intelligenceMaison Grande Condominium Association entered into a ninety-nine-year recreation lease with Dorten, Inc. before 1975, which included an escalation cla…
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PER CURIAM.
We review Maison Grande Condominium Ass’n v. Dorten, Inc., 580 So. 2d 859 (Fla. 3d DCA 1991), in which the district court expressly declared section 718.-4015, Florida Statutes (Supp.1988), unconstitutional,1 and certified the following question of great public importance:
Is an escalation clause in a condominium recreation lease that was entered into before 1975 enforceable after October 1, 1988, for the entire term of the ninety-nine-year lease, where the lessor has not agreed to be bound by future changes in the condominium act?
Maison Grande, 580 So. 2d at 862. This case is controlled by Fleeman v. Case, 342 So. 2d 815 (Fla.1976), in which we held that the retroactive application of the predecessor to section 718.4015 would violate the contracts clause of the Florida and federal constitutions. See also Condominium Ass’n of Plaza Towers North, Inc. v. Plaza Recreation Dev. Corp., 557 So. 2d 1356 (Fla.1990); Association of Golden Glades Condominium Club, Inc. v. Security Management Corp., 557 So. 2d 1350 (Fla.1990); Cove Club Investors, Ltd. v. Sandalfoot South One, Inc., 438 So. 2d 354 (Fla.1983).
Accordingly, we must answer the certified question in the affirmative.
Maison Grande also appeals the district court’s award of costs and attorneys’ fees. The lease agreement between Maison Grande and Dorten provides for the lessor to recover attorneys’ fees and costs should it prevail
[i]n any proceeding arising by reason of an alleged failure of the lessee to perform any of its duties and obligations pursuant to the provisions hereof, or by reason of an alleged breach of any of the terms and/or conditions or covenants of this lease, or by reason of any default in the payment of any monies, rentals or sums due or becoming due.... Florida law has long recognized “that a statute found on the statute books must be presumed to be valid and given effect until it is judicially declared unconstitutional.” City of Sebring v. Wolf, 105 Fla. 516, 519, 141 So. 736, 737 (1932). Until the trial court declared section 718.4015 unconstitutional, the statute was valid and the escalation clause was void for public policy. We thus agree with Maison Grande that its nonperformance of the escalation clause up to the time the trial court declared section 718.4015 unconstitutional must be excused and that it is not liable to Dorten for attorneys’ fees and costs associated with Dorten’s effort to have section 718.4015 declared unconstitutional. Furthermore, Maison Grande is not liable for costs and attorneys’ fees associated with the appeal below and in this Court because the contractual language does not expressly include costs and fees on appeal. See Ohio Realty Inv. Corp. v. Southern Bank, 300 So. 2d 679, 682 (Fla.1974).
Accordingly, we affirm in part and reverse in part the decision below.
It is so ordered.
SHAW, C.J., and OVERTON, BARKETT, GRIMES, KOGAN and HARDING, JJ., concur. McDONALD, J., concurs in part and dissents in part.
. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution.
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Lubkey v. Compuvac Sys., Inc., 857 So. 2d 966 (Fla. 2d DCA 2003)…recovered attorneys’ fees for responding to the previous appeal of the final judgment in this case because the fee provision in the settlement agreement did not specifically provide for appellate fees. See Maison Grande Condo. Ass’n v. Dorten, Inc., 600 So. 2d 463, 465 (Fla.1992). But when Compuvac filed its motion for fees in this court in connection with the earlier appeal, AVS did not file an objection or any other response to the motion. This court granted Compuvac’s request, with instructions that the ci…
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Gomez-Ortega v. Dorten, Inc., 670 So. 2d 1107 (Fla. 3d DCA 1996)…rceable has been previously litigated several times by the condominium association. This court and the Florida Supreme Court have held that the lease agreement is constitutional and enforceable, Maison Grande Condominium Ass’n, Inc. v. Dorten, Inc., 600 So. 2d 463 (Fla.1992) affirming in part 580 So. 2d 859 (Fla. 3d DCA 1991),1 and subsequent claims challenging the lease agreement have been barred by res judicata. Maison Grande Condominium Ass’n, Inc. v. Dorten, Inc., 621 So. 2d 762 (Fla. 3d DCA 1993), review…
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Regency Villas Condo. Ass'n, Inc. v. Keltner, 610 So. 2d 661 (Fla. 1st DCA 1992)…tention that enforcement of the rent escalation provision is barred by the statute, section 718.4015, since, as conceded by all parties in oral argument, the supreme court in the recent case of Maison Grande Condominium Assoc., Inc. v. Dorten, Inc., 600 So. 2d 463 (Fla.1992), decided that issue adversely to appellants’ position.4 In the second point on appeal, appellants maintain that the subleases are void as unconscionable. However, appellants do not contest any of the factors identified by the lower court…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fleeman v. Clark Case, 342 So. 2d 815 (Fla. 1976)
- Ohio Realty Inv. Corp. v. S. Bank OF W. Palm Beach, 300 So. 2d 679 (Fla. 1974)
- City of Sebring v. Wolf, 105 Fla. 516 (Fla. 1932)
- Cove Club Invs., Ltd. v. Sandalfoot S. ONE, Inc., 438 So. 2d 354 (Fla. 1983)
- Ass'n OF Golden Glades Condo. Club, Inc. v. Sec. Mgmt. Corp., 557 So. 2d 1350 (Fla. 1990)
- Condo. Ass'n OF Plaza Towers N., Inc. v. Plaza Rec. Dev. Corp., 557 So. 2d 1356 (Fla. 1990)
- Maison Grande Condo. Ass'n, Inc. v. Dorten, Inc., 580 So. 2d 859 (Fla. 3d DCA 1991)