       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                             VICTOR TISON,
                                Appellant,

                                     v.

       CLAIRMONT CONDOMINIUM F ASSOCIATION, INC., and
                     ROBERT ORLOFF,
                        Appellees.

                               No. 4D19-117

                           [ November 6, 2019 ]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Martin J. Bidwill, Judge; L.T. Case No. CACE-15-
022512.

   Lourdes E. Ferrer of the Ferrer Law Group, PLLC, Weston, and Michael
T. Ross of the Law Office of Michael T. Ross, P.A., Hollywood, for appellant.

  Ashley R. Tulloch of Kaye Bender Rembaum, P.L., Pompano Beach, for
Appellee Clairmont Condominium F Association, Inc.

TAYLOR, J.

   Victor Tison appeals a final order denying his motion for attorney’s fees
and costs. We hold that Tison, as the prevailing party in a lawsuit brought
against him by a condominium association for unpaid assessments, is
entitled to recover prevailing party attorney’s fees even though he sold his
interest in the condominium unit during the pendency of the litigation.
We therefore reverse.

   In December 2015, Clairmont Condominium F Association (the
“Association”) filed a two-count complaint against Tison and another
defendant, seeking to foreclose on an assessment lien against the
defendants’ condominium unit (Count I) and to recover damages for
unpaid assessments (Count II). Both counts were brought pursuant to
section 718.116, Florida Statutes, and the Declaration. At the time of the
complaint, the defendants were the title owners of the unit.

   Shortly after filing the complaint, the Association recorded a notice of
lis pendens.

   The defendants filed an Answer and Affirmative Defenses, which they
later amended. In both Answers, the defendants alleged that they were
entitled to recover attorney’s fees and costs.

   In March 2017, the trial court denied the Association’s motion for
summary judgment.         Later that month, the defendants sold their
respective interests in the condominium unit to a third party.

   Over a year later, the trial court entered a final order dismissing the
action for lack of prosecution. Tison then moved for attorney’s fees and
costs, alleging in relevant part that he was the prevailing party and that
he was entitled to an award of fees pursuant to the Declaration and section
718.303(1), Florida Statutes.

   The Association opposed Tison’s fee motion on various grounds. In
relevant part, the Association argued that Tison was not entitled to
attorney’s fees under either section 718.303(1) or the Declaration because
he was no longer a unit owner. The trial court denied Tison’s fee motion,
ruling that although Tison was the prevailing party, Tison was not a unit
owner and was not entitled to attorney’s fees.

   On appeal, Tison argues that he is entitled to recover prevailing party
attorney’s fees pursuant to the Declaration and section 718.303(1), Florida
Statutes, even though he sold his interest in the condominium unit during
the pendency of the litigation. We agree.

   “The issue of entitlement to attorney’s fees based on the interpretation
of a statute or contract is a pure matter of law involving de novo review.”
Land & Sea Petroleum, Inc. v. Bus. Specialists, Inc., 53 So. 3d 348, 355 (Fla.
4th DCA 2011).

   Section 19.3 of the Declaration addresses entitlement to attorney’s fees
in proceedings arising because of an alleged failure of a unit owner or the
Association to comply with the requirements of the Condominium Act or
the Declaration:

      In any proceeding arising because of an alleged failure of a
      Unit Owner of the Association to comply with the
      requirements of the Act, this Declaration, the exhibits
      annexed hereto, or the rules and regulations adopted
      pursuant to said documents, as the same may be amended
      from time to time, the prevailing party shall be entitled to

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      recover the costs of the proceeding and such reasonable
      attorneys’ fees (including appellate attorneys’ fees) as may be
      awarded by the court.

Section 2.34 of the Declaration, in turn, defines a “Unit Owner” as the
“owner of a condominium parcel.”

   Section 718.303(1), Florida Statutes, likewise addresses attorney’s fees
in actions for damages against an association or a unit owner for failure
to comply with the provisions of Chapter 718 or the Declaration:

      (1) Each unit owner, each tenant and other invitee, and each
      association is governed by, and must comply with the
      provisions of, this chapter, the declaration, the documents
      creating the association, and the association bylaws which
      shall be deemed expressly incorporated into any lease of a
      unit. Actions for damages or for injunctive relief, or both, for
      failure to comply with these provisions may be brought by the
      association or by a unit owner against:

      (a) The association.

      (b) A unit owner.

      ...

      The prevailing party in any such action . . . is entitled to
      recover reasonable attorney’s fees. A unit owner prevailing in
      an action between the association and the unit owner under
      this section, in addition to recovering his or her reasonable
      attorney’s fees, may recover additional amounts as
      determined by the court to be necessary to reimburse the unit
      owner for his or her share of assessments levied by the
      association to fund its expenses of the litigation. . . .

§ 718.303(1), Fla. Stat. (2015). Finally, section 718.103(28), Florida
Statutes (2015), defines a “unit owner” as “a record owner of legal title to
a condominium parcel.”

   As a preliminary matter, Tison was the prevailing party in the litigation
because this case was dismissed for lack of prosecution, and the
Association received none of the relief it sought in the complaint. See, e.g.,
Vivot v. Bank of Am., NA, 115 So. 3d 428, 429 (Fla. 2d DCA 2013) (holding


                                      3
that the defendant became the prevailing party when the foreclosure suit
was dismissed for lack of prosecution).

   The question presented in this case is whether Tison, as the prevailing
party in the Association’s lawsuit against him for unpaid assessments, is
entitled to attorney’s fees and costs even though he was no longer a unit
owner at the time he filed his fee motion.

   “It is settled law that legal rights accrue and are fixed, not when an
action is brought to enforce them, but rather when ‘the last element
necessary to constitute the cause of action occurs.’” Serna v. Arde Apparel,
Inc., 657 So. 2d 966, 966 (Fla. 3d DCA 1995) (citation omitted).
Accordingly, “the right to recover attorney’s fees ancillary to another
particular underlying cause of action always accrues at the time the other,
underlying, cause of action accrues.” L. Ross, Inc. v. R.W. Roberts Constr.
Co., 466 So. 2d 1096, 1098 (Fla. 5th DCA 1985), approved, 481 So. 2d 484
(Fla. 1986). Stated another way, the “substantive rights and obligations
as to attorney’s fees in particular types of litigation vest and accrue as of
the time the underlying cause of action accrues.” Id.

   In this case, the trial court erred in denying Tison’s motion for
attorney’s fees. The relevant question is not whether Tison was a unit
owner at the time he filed the fee motion. Rather, the relevant question is
whether Tison was a unit owner when the cause of action for unpaid
assessments accrued. Here, Tison was a unit owner within the meaning
of both the Declaration and section 718.303(1) at the time the
Association’s alleged cause of action accrued.

   Under the plain language of the Declaration, Tison’s entitlement to
attorney’s fees did not turn on whether he was a unit owner at the specific
time he filed his fee motion. Even though Tison was no longer a unit owner
at the time of the fee motion, the litigation below was undeniably a
“proceeding arising because of an alleged failure of a Unit Owner of the
Association to comply with the requirements of [the Condominium Act or
the Declaration],” thereby entitling the prevailing party in the proceeding
to attorney’s fees under the plain language of section 19.3 of the
Declaration.

    Likewise, the plain language of section 718.303(1) authorized an award
of fees under these circumstances. “In enacting section 718.303(1), the
Legislature clearly intended the prevailing party in disputes between unit
owners and condominium associations to be awarded attorney’s fees.”
Ocean Bank v. Caribbean Towers Condo. Ass’n, 121 So. 3d 1087, 1090
(Fla. 3d DCA 2013). Here, Tison’s sale of his interest in the unit during

                                     4
the litigation did not preclude a determination that he was “the prevailing
party” in an action brought by an association against a unit owner “for
damages or for injunctive relief . . . for failure to comply with” the
provisions of “[Chapter 718], the declaration, the documents creating the
association, and the association bylaws,” thereby entitling him to an award
of “reasonable attorney’s fees” under the plain language of section
718.303(1), Florida Statutes.

   The Association’s reliance upon Garcia v. Stewart, 961 So. 2d 1025 (Fla.
4th DCA 2007), is misplaced. There, we held that a former condominium
unit owner, whose interest in the unit had been foreclosed upon, did not
have any statutory or contractual basis to obtain fees from the association
in proceedings involving the proper disbursement of funds after the
foreclosure sale. Id. at 1027. Thus, in Garcia, unlike in this case, the
former unit owner’s claim to the disputed funds accrued after the
foreclosure sale had already terminated his legal relationship with the
association.

    In short, because Tison was a unit owner at the time the Association’s
alleged cause of action accrued, he had a vested right to attorney’s fees
under the Declaration and under section 718.303(1) upon prevailing in the
litigation. Tison’s substantive legal rights, including his status as a unit
owner for purposes of the statutory and contractual fee provisions at issue
here, were fixed when the cause of action accrued.

   Finally, we conclude that none of the Association’s alternative
arguments for affirmance have merit.

    Based on the foregoing, we reverse the order on appeal and remand
with instructions for the trial court to award Tison a reasonable amount
for attorney’s fees and costs.

   Reversed and Remanded.

MAY and FORST, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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