CALATLANTIC GROUP, INC.

v.

WILLIAM S. DAU, VERONICA L. DAU AND MARK FEESER

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

CALATLANTIC GROUP, INC.,

Appellant,

v. Case No. 5D18-1281

WILLIAM S. DAU, VERONICA L. DAU

AND MARK FEESER,

Appellees.

________________________________/

Opinion filed April 18, 2019

Appeal from the Circuit Court for Lake County,

G. Richard Singeltary, Judge.

Theodore D. Estes and Justin A. Green, of Divine & Estes, P.A., Orlando, for Appellant.

Adam M. Trumbly and Derek A. Schroth, of Bowen/Schroth, Eustis, for Appellees.

PER CURIAM.

CalAtlantic Group, Inc. (“CalAtlantic”) appeals the final order denying its motion for attorney’s fees filed after the voluntary dismissal of the lawsuit initiated by William S. Dau, Veronica L. Dau, and Mark Feeser,¹ individually and as representatives of all similarly situated others (“Appellees”). We reverse.

ARTICLE IX

USE RESTRICTIONS

. . . .

Section 1. Violation. If any person claiming by, through or under Declarant, or its successors or assigns, or any other person, shall violate or attempt to violate any of the covenants herein, it shall be lawful for the Declarant or any person or persons owning real estate subject to these covenants to bring any proceeding at law or in equity against the person or persons violating or attempting to violate any such covenant including action to enjoin or prevent him or them from so doing, or to cause the violation to be remedied and to recover damages or other dues for such violation. If the party or parties bringing any such action prevail, they shall be entitled to recover from the person or persons violating the restrictions the costs incurred by such prevailing party, including reasonable attorney’s fees and disbursements incurred through all appellate levels. Invalidation of any of these covenants by judgment of court order shall in no way affect any of the other covenants and provisions, contained herein, which shall remain in full force and effect.

. . . .

Bank Nat’l Ass’n, 253 So. 3d 86, 87 n.1 (Fla. 2d DCA 2018) (citations omitted); Colucci v. Colucci, 309 So. 2d 67, 67 (Fla. 2d DCA 1975).

3

ARTICLE XII

ENFORCEMENT OF NON-MONETARY DEFAULTS

. . . .

Section 7. Enforcement By or Against Persons. In addition to the foregoing, the Declaration may be enforced by the Declarant, the Association, or any Member by any procedure at law or in equity against any Person violating or attempting to violate any provisions herein, to restrain any violation, to require compliance with the provisions contained herein, to recover damages, or to enforce any lien created herein. The expense of any litigation to enforce this Declaration shall be borne by the Person against whom enforcement is sought, provided such proceeding results in a finding that such Person was in violation of the Declaration. The prevailing party in any such action shall be entitled to recover its reasonable attorneys’ fees, costs and disbursements through the appellate level.

Appellees filed a complaint against CalAtlantic as “successor by merger to The Ryland Group.” They sought specific performance of an alleged oral contract they entered into with CalAtlantic and a declaratory judgment finding that CalAtlantic breached the Declaration by failing to adequately maintain the Waterside Pointe common areas and amenities. After CalAtlantic filed a motion to dismiss but before it answered Appellees’ amended complaint, Appellees voluntarily dismissed the lawsuit. CalAtlantic filed a motion for entitlement of costs and attorney’s fees, alleging in part that it was entitled to such pursuant to the Declaration and section 57.105(7), Florida Statutes (2017). The trial court denied CalAtlantic’s motion on the bases that: it did not bring an action to prevent, remedy, or recover damages by a party “violating or attempting to violate” the Declaration; there was no finding of a violation of the Declaration; and there was no order adjudicating the case on the merits. On appeal, CalAtlantic argues that the trial court erred in its interpretation of the attorney’s fees provisions of the Declaration and in its finding that section 57.105(7) did not apply. We agree.

The purpose of section 57.105(7) is “simply to ensure that each party gets what it gives.” Fla. Hurricane Prot. & Awning, Inc. v. Pastina, 43 So. 3d 893, 895 (Fla. 4th DCA 2010) (quoting Inland Dredging Co. v. Pan. City Port Auth., 406 F. Supp. 2d 1277 (N.D. Fla. 2005)). However, “[t]he statute is designed to even the playing field, not expand it beyond the terms of the agreement.” Id. Appellees rely on Subway Restaurants, Inc. v. Thomas, 860 So. 2d 462 (Fla. 4th DCA 2003), and maintain that awarding CalAtlantic attorney’s fees would impermissibly expand the scope of the attorney’s fees provisions of the Declaration because a breach is required to trigger the entitlement to fees, and here, a breach did not occur.² We find that Subway is distinguishable.3

2 Appellees also make what is essentially a tipsy coachman argument and ask this Court to affirm the denial of attorney’s fees because the record does not demonstrate that The Ryland Group vested its rights to CalAtlantic. “A trial court’s ruling should be upheld if there is any legal basis in the record which supports the judgment. . . . [and] the appellee should be permitted to explicate any legal basis supporting the trial court’s judgment.” State v. Hankerson, 65 So. 3d 502, 505 (Fla. 2011), as revised on denial of reh’g (June 30, 2011). However, this Court “cannot employ the tipsy coachman rule where a lower court has not made factual findings on an issue and it would be inappropriate for an appellate court to do so.” Foley v. Azam, 257 So. 3d 1134, 1139 n.3 (Fla. 5th DCA 2018) (citing Bueno v. Workman, 20 So. 3d 993, 998 (Fla. 4th DCA 2009), review denied, No. SC18-2120, 2019 WL 1349273 (Fla. Mar. 26, 2019)). Throughout the proceedings, Appellees and CalAtlantic repeatedly referred to CalAtlantic as The Ryland Group’s successor by merger; the record does not reflect that this was in dispute, and the trial court’s order contains no factual findings regarding the issue. “Inasmuch as the trial court did not consider that issue, we decline to do so as well.” Id.

3 Appellees cite multiple cases for the same proposition, all of which are distinguishable for the same reason as Subway. See Placida Prof’l Ctr., LLC v. F.D.I.C., 512 F. App’x 938 (11th Cir. 2013); Pastina, 43 So. 3d at 895; Anderson Columbia Co. v. Fla. Dep’t of Transp., 744 So. 2d 1206, 1207 (Fla. 1st DCA 1999); Indem. Ins. Co. of N. Am. v. Chambers, 732 So. 2d 1141, 1143 (Fla. 4th DCA 1999).

4 The language of section 57.105(6), Florida Statutes (2002), is identical to the statute at issue.

Id. at *4. As in GEMB, here, we hold that the availability of attorney’s fees was determined by the cause of action asserted in Appellees’ complaint, not the disposition of the case. Provided that the contract is not found to be unenforceable between the parties, if a claim is within the scope of an attorney’s fees provision, the party defending against that claim is entitled to attorney’s fees pursuant to section 57.105(7) if the party prevails. “It is well-settled that when a plaintiff takes a voluntary dismissal the defendant is deemed the prevailing party and therefore is entitled to attorney’s fees if the contract authorizes an award of attorney’s fees.” Casarella, Inc. v. Zaremba Coconut Creek Parkway Corp., 595 So. 2d 162, 163 (Fla. 4th DCA 1992) (citing Stuart Plaza, Ltd. v. Atl. Coast Dev. Corp. of Martin Cty., 493 So. 2d 1136 (Fla. 4th DCA 1986)). Thus, because Appellees’ claim was within the scope of the attorney’s fees provisions of the Declaration, pursuant to section 57.105(7), CalAtlantic was entitled to attorney’s fees for prevailing against Appellees’ claim. Limiting a party’s entitlement to attorney’s fees on the outcome of a dispute rather than the cause of action asserted in the pleadings is contrary to the purpose of section

ORFINGER, COHEN and HARRIS, JJ., concur.