         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D17-5241
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HOLIDAY ISLE IMPROVEMENT
ASSOCIATION, INC.,

    Appellant,

    v.

DESTIN PARCEL 160, LLC, a
Florida Limited Liability
Company,

    Appellee.
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On appeal from the Circuit Court for Okaloosa County.
William F. Stone, Judge.

                        October 15, 2018


WETHERELL, J.

     Appellant (the association) sued Appellee (the developer) for
declaratory and injunctive relief to compel the developer to submit
its building plans to the association for review and approval in
accordance with the protective covenants and restrictions on the
developer’s property. The trial court granted summary judgment
in favor of the developer, and we affirmed that order in Holiday
Isle Improvement Association, Inc. v. Destin Parcel 160, LLC, 2018
WL 4139351 (Fla. 1st DCA Aug. 30, 2018). The trial court also
awarded prevailing party attorney’s fees and costs to the developer
under section 720.305(1), Florida Statutes (2013), and in this
appeal, the association challenges that award.

    The association argues that there was no legal basis for the
award of attorney’s fees and costs to the developer because its suit
was filed under chapter 86, Florida Statutes, and neither chapter
86 nor the protective covenants provides for an award of prevailing
party attorney’s fees and costs. The developer responds that the
absence of authority for an award of attorney’s fees and costs in
chapter 86 and the protective covenants is immaterial because the
award here was properly based on section 720.305(1). We agree
with the developer.

    Section 720.305(1) provides in pertinent part:

    Each member and . . . and each association, are governed
    by, and must comply with, this chapter, the governing
    documents of the community, and the rules of the
    association. Actions at law or in equity . . . to redress
    alleged failure or refusal to comply with these provisions
    may be brought by the association . . . against:

                          *   *   *

         (b) A member;

                          *   *   *

    The prevailing party in any such litigation is entitled to
    recover reasonable attorney fees and costs ....

(emphasis added). 1 Even though the declaratory judgment
complaint filed by the association did not refer to section 720.305,

    1   The statute further provides that in addition to recovering
attorney’s fees and costs, “[a] member prevailing in an action
between the association and the member under this section . . .
may recover additional amounts as determined by the court to be
necessary to reimburse the member for his or her share of
assessments levied by the association to fund its expenses of the
litigation.” However, that provision is not implicated in this case
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the suit was a de facto action under that section because it sought
to redress the developer’s alleged failure or refusal to comply with
the protective covenants. Accordingly, under the plain language
of section 720.305(1), the developer was entitled to an award of its
attorney’s fees and costs as the prevailing party in the suit.

     The association also argues that the statute cannot be
retroactively applied here because the protective covenants
predate the enactment of section 702.305(1) and the statute
impairs the parties’ contractual rights under the covenants. We
disagree for two reasons.

     First, the statute is being applied prospectively—not
retroactively—because the association’s cause of action accrued
many years after the statute’s effective date. “When attorney’s
fees are an item of costs provided by statute, the relevant analysis
does not compare the effective date of the statute providing for
court costs with the date of the contract, if any, which may be the
cause of action in the particular litigation, but compares the
effective date of the statute providing for court costs with the date
of the accrual of the cause of action in the litigation as to which the
court costs, including attorney’s fees, are an adjunct.” Xanadu of
Cocoa Beach, Inc. v. Lenz, 504 So. 2d 518, 520 (Fla. 5th DCA 1987).

     Second, the statute does not impair the parties’ rights or
obligations under the protective covenants because even though
the covenants were silent on the issue of attorney’s fees and costs,
they provided that “the remedies herein stated shall be construed
as cumulative of all other remedies now or hereafter provided by
law” (emphasis added). Thus, unlike the case relied on by the
association in which the court held that “the statutory imposition
of attorneys’ fees where none were bargained for materially
changes the binding force of the agreement,” Commodore Plaza at
Century 21 Condominium Association, Inc. v. Cohen, 378 So. 2d
307, 309 (Fla. 3d DCA 1980), the imposition of prevailing party


because the developer was only awarded its attorney’s fees and
costs.



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attorney’s fees and costs under section 720.305(1) is consistent
with—and does not impair—the bargained-for terms of the
protective covenants here.

    For these reasons (and because we find no merit in the other
issues raised by the association), we affirm the award of prevailing
party attorney’s fees and costs to the developer.

    AFFIRMED.

ROBERTS and OSTERHAUS, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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David A. Theriaque, S. Brent Spain, and Terrell K. Arline of
Theriaque & Spain, Tallahassee, for Appellant.

John M. Stratton, Daniel C. O'Rourke, and Dana C. Matthews of
Matthews & Jones, LLP, Destin, for Appellee.




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