Alhambra Homeowners Ass'n, Inc. v. Asad

• Decision Date: 13 December 2006
• Docket Number: No. 4D06-835.,4D06-835.
• Citation: 943 So.2d 316
• Parties: ALHAMBRA HOMEOWNERS ASSOCIATION, INC., a Florida not-for-profit corporation, Appellant, v. Adnan ASAD, Wafa Asad, Issa Asad, and Noha Asad, Appellees.
• Court: Florida District Court of Appeals

943 So.2d 316

ALHAMBRA HOMEOWNERS ASSOCIATION, INC., a Florida not-for-profit corporation, Appellant, v. Adnan ASAD, Wafa Asad, Issa Asad, and Noha Asad, Appellees.

No. 4D06-835.

District Court of Appeal of Florida, Fourth District.

December 13, 2006.

Lawrence D. Bache of Law Office of Lawrence D. Bache, Pembroke Pines, for appellant.

Roger G. Pickles of Law Office of Robert P. Kelly, Hollywood, for appellees.

GROSS, J.

In this case we hold that a defendant is entitled to recover attorney's fees under a statute awarding fees to the prevailing party in litigation after the plaintiff took a voluntary dismissal without prejudice. We apply the general rule even though the plaintiff subsequently refiled the identical lawsuit and ultimately prevailed.

On April 13, 2005, Alhambra Home-owners Association filed a complaint for injunctive relief and damages against appellees, Adnan, Wafa, Issa, and Noha Asad, the fee simple owners of real property subject to a declaration of covenants and restrictions for the Alhambra residential community. The complaint alleged that the Asads violated the declaration by painting their home a color not approved by the Association.

As a defense, the Asads contended that the Association had not complied with a condition precedent to bringing suit, in that it failed to notify the Florida Department of Business Regulation and request mandatory mediation before filing suit, in violation of section 720.311, Florida Statutes (2004).¹ In its reply, the Association alleged that section 720.311 was not applicable.

On May 18, 2005, the Asads moved for summary judgment based on the Association's failure to comply with section 720.311. Two days before the motion hearing, on July 8, 2005, the Association filed a notice of voluntary dismissal without prejudice. After filing the dismissal, the Association paid the costs mandated under Florida Rule of Civil Procedure 1.420(d).

The parties attended mediation in September, 2005, which was unsuccessful. The Association refiled the complaint. Ultimately, the Asads acceded to the demands of the Association by paying $1,000 in fines and repainting their home.

In the dismissed action, the Asads moved for attorney's fees under section 720.305(1), Florida Statutes (2004), which provides that the "prevailing party" in litigation between the association and a member "is entitled to recover reasonable attorney's fees and costs." The trial court ruled that the Asads were "entitled to reasonable attorney's fees as prevailing parties" and entered a judgment for $8,146.

The issue in this case is whether the Asads were "prevailing parties" under section 720.305(1).

The general rule is that when a plaintiff voluntarily dismisses an action, the defendant is the "prevailing party" within the meaning of statutory or contractual provisions awarding attorney's fees to the "prevailing party" in litigation. See Griffin v. Berkley S. Condo. Ass'n, 661 So.2d 135 (Fla. 4th DCA 1995) (applying prevailing party provision in condominium statute, section 718.303, Florida Statutes (1993)); Hatch v. Dance, 464 So.2d 713, 714 (Fla. 4th DCA 1985) (in a case where plaintiff voluntarily dismissed "after limited pre-trial activity," court held that "it is well-established that statutory or contractual provisions providing for an award of attorney's fees to the prevailing party in a litigation encompasses defendants in suits which have been voluntarily dismissed"); Stuart Plaza, Ltd. v. Atl. Coast Dev. Corp. of Martin County, 493 So.2d 1136, 1137 (Fla. 4th DCA 1986) (involving prevailing party attorney's fee provision in a lease); Boca Airport, Inc. v. Roll-N-Roaster of Boca, Inc., 690 So.2d 640, 641 (Fla. 4th DCA 1997) (applying attorney's fee provision of mechanics' lien statute and recognizing that Stuart Plaza "stated the correct rule"); Lion Oil Co. v. Tamarac Lakes, Inc., 232 So.2d 20 (Fla. 4th DCA 1970) (applying mechanic's lien statute); Vidibor v. Adams, 509 So.2d 973 (Fla. 5th DCA 1987) (involving section 723.068, Florida Statutes (1985)); Century Constr. Corp. v. Koss, 559 So.2d 611 (Fla. 1st DCA 1990) (involving contractual provision); Landry v. Countrywide Home Loans, Inc., 731 So.2d 137 (Fla. 1st DCA 1999) (attorney's fee provision on mortgage note); Ajax Paving Indus., Inc. v. Hardaway Co., 824 So.2d 1026, 1029 (Fla. 2d DCA 2002) (contractual provision); Rushing v. Caribbean Food Prods., 870 So.2d 953 (Fla. 1st DCA 2004) (lease provision).

Factually, the closest case to this one is Dolphin Towers Condominium Ass'n, Inc. v. Del Bene, 388 So.2d 1268 (Fla. 2d DCA 1980). There, a unit owner sued a condominium association seeking to compel the association to remove a trellis and trees from a recreation area of the condominium. The association raised the affirmative defense of failure to join the owner of the trellis and trees as an indispensable party. Id. at 1269. The unit owners took a voluntary dismissal; they later refiled the identical action, except that the owners of the improvements were added as party defendants. Id.

The second district held that the association was the prevailing party in the first action within the meaning of section 718.303(1), Florida Statutes (1979), a statute containing "prevailing party" language similar to section 720.305(1). The court rejected the argument that the filing of the second lawsuit negated the association's right to recover fees for the first suit, observing that the "association incurred attorney's fees in asserting what proved to be a meritorious affirmative defense." Id. The court reasoned that "the legislature must have had this situation in mind, as well as those in which a defendant might prevail on the merits, when it provided for the allowance of attorney fees to the prevailing party." Id. This court has cited Dolphin Towers with approval. See Hills of Inverrary Condos., Inc. v. Slachter, 444 So.2d 1132 (Fla. 4th DCA 1984).

Applying the general rule consistent with Dolphin Towers, we conclude that the Asads were the prevailing parties in the first suit. They correctly asserted the defense of failure of a condition precedent. In the face of a likely adverse ruling on the Asads' motion for summary judgment, the Association opted for a voluntary dismissal without prejudice. The refiling of the same suit after mediation does not alter the Asads' right to recover prevailing party attorney's fees incurred in defense of the first suit.

The Association relies upon language in Thornber v. City of Fort Walton Beach, 568 So.2d 914, 919 (Fla.1990), to avoid the application of the general rule. The issue in Thornber was whether certain defendants were the prevailing parties in a federal civil rights suit after the plaintiff voluntarily dismissed the action with prejudice. Holding that the defendants were prevailing parties entitled to statutory attorney's fees, the supreme court wrote:

We agree with the district court that the council members prevailed in this action. In general, when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party. Stuart Plaza, Ltd. v. Atlantic Coast Development Corp., 493 So.2d 1136 (Fla. 4th DCA 1986). A determination on the merits is not a prerequisite to an award of attorney's fees where the statute provides that they will inure to the prevailing party. Metropolitan Dade County v. Evans, 474 So.2d 392 (Fla. 3d DCA 1985); State Department of Health & Rehabilitative Services v. Hall, 409 So.2d 193 (Fla. 3d DCA 1982). There must be some end to the litigation on the merits so that the court can determine whether the party requesting fees has prevailed. Simmons v. Schimmel, 476 So.2d 1342 (Fla. 3d DCA 1985), rev. den., 486 So.2d 597 (Fla.1986). Ray [the plaintiff] dismissed the council members in both their official and individual capacities with prejudice, thus signalling an end to the litigation.

Id. On the one hand, the supreme court in Thornber referred to the general rule stated in Stuart Plaza, where a "determination on the merits" is not a prerequisite to an award of prevailing party attorney's fees under a statute or contract. On the other hand, the supreme court indicated that "[t]here must be some end to the litigation on the merits so that the court can determine whether the party requesting fees has prevailed." (Emphasis added). We read such language not as a negation of the general rule stated in the preceding sentence, but as a reference to the facts of Thornber, where a plaintiff voluntarily dismissed an action with prejudice.

Cases after Thornber have cited it as supporting the general rule, which does not require a merits determination as a precondition to prevailing party attorney's fees. These cases have treated a voluntary dismissal without prejudice as the bright line "end to litigation" mentioned by the supreme court. Thus, in Boca Airport, we affirmed an award of prevailing party attorney's fees after a voluntary dismissal, observing that "[i]t is clear since Thornber that Stuart Plaza . . . state[s] the correct rule." 690 So.2d at 641. Rushing affirmed a fee award after a voluntary dismissal, holding that costs contemplated under Florida Rule of Civil Procedure 1.420(d) "include attorney's fees when provided by statute or agreement." 870 So.2d at 955. Relying on Thornber, the second district reversed an order denying defendants any attorney's fees after a plaintiff voluntarily dismissed a specific performance action without prejudice. See Prescott v. Anthony, 803 So.2d 835, 836-37 (Fla. 2d DCA 2001); see also Ajax Paving, 824 So.2d at 1029.

These post-Thornber district court of appeal cases find support in Caufield v. Cantele, 837 So.2d 371 (Fla.2002). The issue in Caufield was the defendants' entitlement to attorney's fees after the plaintiffs voluntarily dismissed their complaint. From the opinion, it appears that the plaintiffs dismissed their action without prejudice; they had not previously dismissed the complaint and the opinion...