Kirou v. Oceanside Plaza Condominium Ass'n, Inc.
| Decision Date | 25 January 1983 |
| Docket Number | No. 82-1259,82-1259 |
| Citation | 425 So.2d 650 |
| Parties | Steven S. KIROU, Appellant, v. OCEANSIDE PLAZA CONDOMINIUM ASSOCIATION, INC., a not-for-profit Florida corporation, Appellee. |
| Court | Florida District Court of Appeals |
Pepe & Nemire and Thomas Pepe, Coral Gables, for appellant.
Smith & Mandler and Mitchell Mandler, Miami Beach, for appellee.
Before SCHWARTZ, C.J., and HUBBART and NESBITT, JJ.
This case concerns the proper interpretation of the following portion of the Oceanside Plaza Declaration of Condominium:
Costs and Attorneys' Fee. In any proceeding arising because of an alleged failure of a Unit Owner to comply with the terms of the Condominium Act, the Condominium Documents or the rules and regulations adopted pursuant thereto, the prevailing party shall be entitled to recover the costs of the proceeding and Reasonable Attorneys' Fees as may be awarded by the court.
The monumental action which raises the issue began when the condominium association filed a complaint against one of its unit owners, the appellant Kirou, and his tenants, the Gewirtzes, seeking to cancel his "Pet Agreement" and remove the offending animals on the ground that the Gewirtzes' dogs had disgraced themselves in and on the common elements. Kirou filed an answer and what was styled a "counterclaim" for a declaration that the rules and regulations invoked by the association did not apply to the instant situation. The trial judge granted the association's motion for judgment on the pleadings as to the counterclaim, but, after the trial, ruled for Kirou on the merits, holding that the association was not entitled to evict the dogs. Accordingly, he awarded Kirou $1,500.00 in attorneys' fees. 1 In the order now on review, however, he also assessed $1,350.00 in fees in Oceanside's favor because it had succeeded in respect to the counterclaim. We reverse.
It is clear to us that only Kirou was entitled to recover under the attorneys' fees provision in question. The "proceeding" below was one in which the association sought to get the dogs out, and Kirou tried to keep them in. When the dust--or whatever--had cleared, they were still there. Thus, notwithstanding the intermediate battle, or rather skirmish, over the counterclaim, which had no effect on the ultimate result, 2 Kirou plainly won, and the association plainly lost the war. It was therefore not the or even a "prevailing party" in the proceeding and thus should not have been...
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...appellee's counterclaim, at most they will clearly win only a battle while still losing the war. See Kirou v. Oceanside Plaza Condominium Association, Inc., 425 So.2d 650 (Fla. 3d DCA 1983). Accordingly, we find that Kismet was the "prevailing party" in this litigation for the purpose of re......
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