51 Island Way Condominium Ass'n, Inc. v. Williams

• Decision Date: 24 October 1984
• Docket Number: No. 84-247,84-247
• Citation: 458 So.2d 364
• Parties: 51 ISLAND WAY CONDOMINIUM ASSOCIATION, INC., a non-profit Florida corporation, Appellant, v. Donald J. WILLIAMS and Sharon E. Williams, his wife, and Glenn Cowell and Mary Cowell, his wife, Appellees.
• Court: Florida District Court of Appeals

Page 364

458 So.2d 364

51 ISLAND WAY CONDOMINIUM ASSOCIATION, INC., a non-profit Florida corporation, Appellant, v. Donald J. WILLIAMS and Sharon E. Williams, his wife, and Glenn Cowell and Mary Cowell, his wife, Appellees.

No. 84-247.

District Court of Appeal of Florida,

Second District.

Oct. 24, 1984.

Peter T. Roman and Peter M. Dunbar of Dunbar, Dunbar, Roman, Anderson & Schafer, P.A., Dunedin, for appellant.

James R. Case and Martha Kimball of Case, Kimpton & Burke, P.A., Clearwater Beach, for appellees.

GRIMES, Acting Chief Judge.

The appellant, 51 Island Way Condominium Association, Inc., seeks review of a final order dismissing its complaint on the ground of mootness and denying its request for attorney's fees and costs.

Appellees Donald J. and Sharon E. Williams owned unit 1010 of 51 Island Way Condominium. In October 1981, they entered into negotiations to sell a one-third interest in their unit to appellees Glenn and Mary Cowell. The association objected to this sale as violative of various provisions of the declaration of condominium. Despite its protest, the sale was completed by December 1981.

On January 11, 1982, the association filed suit against appellees seeking declaratory and injunctive relief and requesting monetary damages and attorney's fees. The complaint alleged that the appellees had not complied with the declaration provisions in that they had not provided the mandatory thirty-day written notice to the association prior to the transfer; that they had not furnished adequate information concerning the transfer to the association; and they had not given the association sufficient time to act under the notice provision. The association also asserted that the conveyance of a one-third interest constituted an attempt to create a time-sharing unit contrary to the declaration and state law. Appellees filed an answer and counterclaim, contending that certain regulations of the association were unreasonable and that they had been denied full access to their unit.

On November 21, 1982, immediately before the non-jury trial was to commence, appellees' attorney orally moved to dismiss the cause for mootness. He explained that because the Cowells had reconveyed their interest by quitclaim deed to the Williams', the issues of the case were rendered moot. The court ordered that when appellees submitted their written motion, they were to attach a copy of the deed to verify the transfer. Soon after, the court entered an order dismissing the case on the ground that the action and relief sought in the association's original complaint were rendered moot by appellees' voluntary actions. The court also directed that each party bear the expense of its own costs and attorney's fees. On rehearing, the association pointed out that the warranty deed finalizing the reconveyance was not dated until November 30, 1982, nine days after the court hearing. Thus, the deed was not in existence at the trial date, and as a result the issues were not moot at that time. Unpersuaded by this argument, the lower court denied the motion, after which the association appealed.

Upon considering the record and the oral arguments of counsel, we accept the lower court's determination of the mootness of the issues at the time of trial. The fact that the deed was not executed until several days later does not mandate a contrary result. Therefore, we do not address this matter further. We are concerned however, about the denial of the association's motion for attorney's fees and costs.

On appeal, the association asserts that it is entitled to attorney's fees as the prevailing party pursuant to sections 57.105 and 718.303, Florida Statutes (1981), and a provision of the declaration of condominium. The association argues that appellees' conduct necessitated the suit, and that their last minute voluntary agreement of reconveyance was a tacit acknowledgment that the association's position would have prevailed at trial. In response, appellees dispute the fact that their transfer of the interest was an admission that the association was right. Absent a disposition of the case, neither side could emerge as the "prevailing party." Thus, the association was not entitled to an award of fees under statute or the declaration.

We begin by noting that there need not be a determination on the merits in a lawsuit for purposes of a fee award if the applicable statutory provision provides for fees to a "prevailing party." State, Department of Health & Rehabilitative Services v. Hall, 409 So.2d 193 (Fla. 3d DCA 1982). ¹ After entry of a voluntary dismissal, attorney's fees can be awarded to the so-called prevailing party under statutory provision where the case was not resolved on the merits. Dolphin Towers Condominium Association, Inc. v. Del Bene, 388 So.2d 1268 (Fla. 2d DCA 1980); MacBain v. Bowling, 374 So.2d 75 (Fla. 3d DCA 1979); Gordon v. Warren Heating & Air Conditioning, Inc., 340 So.2d 1234 (Fla. 4th DCA 1976); Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So.2d 769 (Fla. 3d DCA 1975); Jackson v. Hatch, 288 So.2d 564 (Fla. 2d DCA 1974).

In Dolphin Towers we examined the term "prevailing party" in the context of section 718.303(1), Florida Statutes (1979), the Condominium Act, a provision also relied upon by the association herein. There we held that in an action filed pursuant to the act, a prevailing party includes a defendant against whom a voluntary dismissal is taken for the purpose of recovery...