Dolphin Towers Condominium Ass'n, Inc. v. Del Bene
| Decision Date | 17 September 1980 |
| Docket Number | No. 80-1070,80-1070 |
| Citation | 388 So.2d 1268 |
| Parties | DOLPHIN TOWERS CONDOMINIUM ASSOCIATION, INC., a Florida Corporation not for a profit, Appellant, v. Donald J. DEL BENE and Virginia Del Bene, Appellees. |
| Court | Florida District Court of Appeals |
Wayne C. Hall of Dickinson, O'Riorden, Gibbons, Quale, Shields & Carlton, Venice, for appellant.
Robert P. Rosin of Rosin, Abel, Band, Brown & Russell, Sarasota, for appellees.
The issue of this appeal is whether, on voluntary dismissal of a unit owner's action against a condominium association, the condominium association becomes the prevailing party for purposes of an award of attorney fees under Section 718.303, Florida Statutes (1979). We answer in the affirmative, and reverse the circuit court's order denying the condominium association/defendant's motion for attorney fees.
Appellees, the Del Benes, are owners of a condominium unit in the Dolphin Towers Condominium. Appellant is the condominium association. Appellees sought declaratory relief and a mandatory injunction requiring the association to remove a redwood trellis and six trees from the recreational area of the condominium. The condominium association raised the affirmative defense of failure to join as an indispensable party the owner of the improvements that the Del Benes wished removed. It also counterclaimed for a reasonable attorney fee in the event that it was determined to be the prevailing party. The case proceeded to nonjury trial, which was continued because of insufficient time to complete the presentation of evidence. Subsequently the Del Benes voluntarily dismissed the action pursuant to Florida Rule of Civil Procedure 1.420(a)(1). The condominium association moved for an award of attorney fees as the prevailing party under Section 718.303(1). Following a hearing, the lower court denied the motion. The following day, the Del Benes filed a new action against the condominium association, which was the same as the first action except that the owners of the improvements were joined as party defendants.
Section 718.303(1), Florida Statutes (1979), provides that in an action by or against a condominium association, "the prevailing party is entitled to recover reasonable attorney's fees." The condominium association, defendant in the lower court, contends that when the Del Benes voluntarily dismissed their action, the association became the "prevailing party" within the meaning of Section 718.303(1) and was therefore entitled to an award of attorney fees. We agree.
Although there has been no judicial interpretation of the term "prevailing party" as used in Section 718.303(1), Florida courts have construed Section 713.29, Florida Statutes (1979), an analogous provision in the Mechanics' Lien Statute. That section provides in pertinent part:
In any action brought to enforce a lien, . . . the prevailing party shall be...
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Royal Palm Vill. Residents, Inc. v. Slider
...‘prevailing party’ is applicable to a defendant against whom a voluntary dismissal is taken."); Dolphin Towers Condo. Ass'n v. Del Bene , 388 So. 2d 1268, 1269 (Fla. 2d Dist. Ct. App. 1980) ("[T]he term ‘prevailing party’ ... should ... be construed to include a defendant against whom a vol......
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Royal Palm Vill. Residents, Inc. v. Slider
...conferred prevailing-party status on beneficiaries of voluntary dismissals without prejudice. See McKelvey, 430 So.2d at 922; Dolphin Towers, 388 So.2d at 1269; Gordon Warren Heating &Air Conditioning, Inc., 340 So.2d 1234, 1235 (Fla. 4th Dist. Ct. App. 1976). But their holdings to that eff......
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84 Hawai'i 390, Survivors of Iida v. Oriental Imports, Inc.
...dismissed. 16 Id. at 714 (citing Galbraith v. Inglese, 402 So.2d 574 (Fla.Dist.Ct.App.1981); Dolphin Towers Condominium Ass'n v. Del Bene, 388 So.2d 1268 (Fla.Dist.Ct.App.1980)). The court then reversed and remanded the trial court's denial of Hatch's motion with instructions to award Hatch......
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Alhambra Homeowners Ass'n, Inc. v. Asad
...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......