       Third District Court of Appeal
                               State of Florida

                           Opinion filed April 26, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-690
            Lower Tribunal Consolidated Nos. 13-26294 and 12-690
                            ________________


                      Maria Gonzalez and Ida Leal,
                                   Appellants,

                                        vs.

        International Park Condominium I Association, Inc.,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Rodney Smith,
Judge, and Victoria S. Sigler and Judith L. Kreeger, Senior Judges.

     Javier Guadayol, for appellants.

     Essig Law, P.A., and William G. Essig, for appellee.


Before SUAREZ, C.J., and SALTER and SCALES, JJ.

     SALTER, J.

     Maria Gonzalez and Ida Leal (“Owners”), individual condominium unit

owners and members of appellee, International Park Condominium I Association,
Inc. (“Association”), appeal a final judgment awarding attorney’s fees and costs to

the Association in the consolidated circuit court cases below. The issue presented

is whether the Owners or the Association prevailed on the substantial issues in the

lawsuits. Shands Teaching Hosp. & Clinics, Inc. v. Mercury Ins. Co. of Fla., 97

So. 3d 204, 213 (Fla. 2012). We find that the Owners prevailed on those issues,

and thus vacate the final judgment of attorney’s fees and costs entered February

29, 2016, as well as the earlier order on the Association’s entitlement to such fees

and costs.

      I.     The Lawsuits

      In circuit court case 12-690, the Association petitioned for appointment of a

receiver for the 75 units within the 312-unit condominium that were delinquent in

their payment of assessments, section 718.116(6)(c), Florida Statutes (2012). The

circuit court granted the petition and appointed a receiver for the delinquent units

in late 2012. In early 2013, the receiver sought a modification of the receivership

order to grant the receiver blanket authority to cast votes on behalf of those

members then owning the units which were delinquent in paying assessments. The

receiver’s motion for modification was granted.

      In April 2013, one of the Owners (appellee Maria Gonzalez) filed an

emergency motion to limit the receiver’s authority to cast any votes for units

subject to the receivership, “as it would be in direct violation of the Association’s



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governing documents and contrary to Florida law.” The trial court denied Ms.

Gonzalez’s motion. Thereafter, the initially-appointed receiver was discharged by

the trial court for cause and a successor was appointed.

       In August 2013, the Owners filed a separate action (circuit court case 13-

26294) against the Association to compel the Association to comply with the

Declaration of Condominium (“Declaration”), its articles of incorporation, its by-

laws, and statutory provisions regarding voting rights for the unit owner/members

ineligible to vote because of their delinquencies in the payment of assessments.1

The 2013 and 2012 circuit court cases were consolidated in 2014.

       In November 2014, the circuit court discharged the successor receiver on the

court’s own motion. The court then entered an order appointing a successor as

receiver, but that order eliminated the prior receivers’ power to vote on behalf of

unit owners who were delinquent in their payment of assessments. That order

substantially granted the relief sought by the Owners in circuit court case 13-

26294.     The Owners and the Association filed cross-motions for summary

judgment, and in 2015 the then-presiding circuit judge2 reaffirmed during a hearing

1  The Owners’ complaint against the Association in 2013 was filed after Ms.
Gonzalez first sought non-binding arbitration of the issues before the Department
of Professional Regulation, Division of Florida Land Sales, Condominiums, and
Mobile Homes, as required by section 718.1255(4), Florida Statutes (2013). The
final order of the Department authorized Ms. Gonzalez to seek relief in the circuit
court.
2   Through no fault of any of the circuit judges who ruled in the two consolidated

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that she had “already stripped the receiver of [the delinquent unit owners’ voting]

rights,” the relief sought by the Owners.

      Finding no further action necessary in the cases, the circuit court then

entered a final judgment in favor of the Association and reserved jurisdiction

regarding the Association’s motion for an award of attorney’s fees and court costs.

Following the retirement of the circuit judge who entered that final judgment,

another circuit judge entered an order of entitlement to attorney’s fees and costs in

favor of the Association, but did not fix the amount of attorney’s fees and costs. A

third circuit judge then conducted an evidentiary hearing on the amount of

attorney’s fees and costs, and on February 29, 2016, entered a final judgment

awarding the Association $9,150.00 in attorney’s fees and $488.25 in taxable

costs. The Owners’ appeal followed.

      II.    Analysis

      The circuit court orders do not state a basis for the fee award. However, the

Association sought fees under three statutory provisions: section 718.1255(l),

Florida Statutes (2014) (fees for litigating after alternative dispute resolution);

section 718.303, Florida Statutes (2014) (fee award for prevailing party in action to

enforce Declaration); and section 57.105, Florida Statutes (2014) (fees for


cases, three different judges heard different aspects of the cases at different times.
The last circuit judge to hear the cases ruled on the attorney’s fee motions and
cannot be faulted for lacking the full four-year history of the cases.

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frivolous litigation).   All three of the statutes award attorney’s fees to the

prevailing party.   Fee statutes are strictly construed because there is no common

law right to attorney’s fees. Trytek v. Gale Indus., Inc., 3 So. 3d 1194, 1199 (Fla.

2009). In this case, an award of attorney’s fees to the Association is not warranted

under any of the three statutes. Based on our determination that the Owners

prevailed on the most significant issue in their case (eliminating the receiver’s

claimed right to vote on Association matters on behalf of the delinquent owners),

the award of taxable costs must be reversed as well.

             A.     Section 718.1255

      The first provision, section 718.1255(l), specifies that the party who files a

complaint for a trial de novo (following the mandatory non-binding arbitration

procedure) shall be assessed the other party's arbitration costs, court costs, and

other reasonable costs (including attorney's fees, investigation expenses, and

expenses for expert or other testimony or evidence incurred after the arbitration

hearing), if the judgment upon the trial de novo is not more favorable than the

arbitration decision. If the judgment is more favorable, the party who filed a

complaint for trial de novo shall, upon motion, be awarded reasonable court costs

and attorney's fees.3


3 In the present case, the Owners did not cross-move for attorney’s fees and costs,
and they did not cross-appeal the 2015 final judgment denying any further relief to
them in circuit court case 13-26294.

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      This statute does not support an award of fees to the Association in the

present case; the result obtained by the Owners in the trial court was more

favorable than the arbitration result.    The Owners succeeded in stripping the

receiver of the erroneously-ordered right to vote on behalf of the delinquent unit

owners.    In addition, the plain language of this statute requires that there be

judgment upon the trial de novo. Trytek, 3 So. 3d 1194 at 1198. “[R]egardless of

who prevails in the arbitration, where a trial de novo is instituted after arbitration,

the party who prevails in the trial de novo proceedings by obtaining a judgment

more favorable than the arbitration decision is awarded attorney's fees for all

proceedings.” Huff v. Vill. of Stuart Ass'n, Inc., 741 So. 2d 1217, 1219 (Fla. 4th

DCA 1999). See Beach Terrace Ass'n, Inc. v. Wanda DiPaola Stephen Rinko Gen.

P'ship, 27 So. 3d 147, 148 (Fla. 2d DCA 2010) (affirming award of fees to unit

owner who was awarded judgment more favorable than arbitrator’s decision).

      No such trial de novo occurred here. The court disposed of the cases on

motion for entry of judgment because the issues had been resolved. The outcome

for the Owners was more favorable in the court action. The fee and costs award to

the Association was not supported by this statutory provision.

             B.     Section 718.303

      The second statute relied upon by the Association, section 718.303, provides

that the prevailing party in a case of this kind by or against a condominium



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association is entitled to recover reasonable attorney’s fees. Under the statute, the

“prevailing party” is the party that succeeds on any significant issue in the

litigation, achieving some of the benefit the party sought in bringing the lawsuit.

Padow v. Knollwood Club Ass’n, Inc., 839 So. 2d 744 (Fla. 4th DCA 2003);

Moritz v. Hoyt Enters., Inc., 604 So. 2d 807, 810 (Fla. 1992). In this case, the unit

owners prevailed in achieving a significant benefit they sought from the litigation:

precluding the receiver from any further wrongful exercise of voting rights.

      In the present case, the final judgment in the Association’s favor is not the

metric that determines which side prevails. See Shands Teaching Hosp. & Clinics,

Inc., 97 So. 3d at 213 (Fla. 2012). The Owners were more successful. Village of

Kings Creek Condo. Ass’n, Inc. v. Goldberg, 596 So. 2d 1195 (Fla. 3d DCA 1992)

(finding that association is not prevailing party for fee award where final court

order permitted owner to achieve some of his objectives); Martin v. Key Largo

Kampground, Inc., 501 So. 2d 648 (Fla. 3d DCA 1986) (reversing attorney’s fee

award in association’s action for removal of structure erected by tenant where

removal was not granted and the only right the association gained was the right to

be asked for approval). A fee award in favor of the Association under section

718.303 on this basis also was unwarranted based on the relief obtained by the

Owners before the final judgment was entered.

             C.    Section 57.105



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      While it is improbable that the award was based on section 57.105, that third

statute invoked by the Association also does not support an award of fees in this

case. An award of fees under section 57.105 requires a determination by the court

that “the party or its counsel knew or should have known that the claim or defense

asserted was not supported by the facts or an application of existing law.” Blue

Infiniti, LLC v. Wilson, 170 So. 3d 136, 140 (Fla. 4th DCA 2015). The fact that

the Owners obtained the relief they sought, as acknowledged by the initially-

presiding trial judge at the 2015 hearing before the entry of the final judgment,

demonstrates that their action was not frivolous. Moreover, to award attorney’s

fees under this statute, the court must make detailed, specific findings of bad faith,

and should recite the facts on which it bases its conclusions in the order awarding

such fees. Avis Rent A Car Sys., Inc. v. Newman, 641 So. 2d 915, 916 (Fla. 3d

DCA 1994). That was not done here.

      III.   Conclusion

      Based on the foregoing, the final judgment of attorney’s fees and costs and

the order on the Association’s amended motion for attorney’s fees in the

underlying consolidated cases are hereby vacated. The consolidated cases are

remanded for the entry of a final judgment denying the Association’s amended

motion for attorney’s fees and taxable costs against the Owners.




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      Final judgment and entitlement order vacated; case remanded for further

proceedings consistent with this opinion.




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