Waverly at Las Olas Condominium Ass'n v. Waverly Las Olas, LLC
2012 Fla. App. LEXIS 7848
| Fla. Dist. Ct. App. | 2012Background
- Developer sought prevailing party attorney’s fees under unit owners’ purchase agreements and FDUTPA after association’s third-party suits failed.
- Trial court dismissed initial and amended third-party complaints; later second amended complaint lacked breach claim but still sought fees under paragraph 16.
- Paragraph 16 of the agreements provides: prevailing party entitled to reasonable attorneys’ fees and costs in any litigation under the Agreement.
- Trial court held all third-party claims shared a common core of facts and awarded fees for the entire litigation, including fees on the fee determination, totaling $105,841.29.
- Association argued claims were separate with different theories; developer argued claims shared a common core and the fee provision was broad enough to cover all litigation.
- On appeal, court affirmed entitlement to fees and concluded the fee award was proper and the amount-related fees were permissible under the contract.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are multiple intertwined claims entitle to full fees? | Association: claims not separable; different theories; no separable damages. | Developer: claims share common core facts; fee provision broad enough for all litigation. | Yes; fees awarded for entire litigation proper. |
| May fees be awarded for litigating the amount of fees? | Association: only entitlement, not amount, is covered. | Contract allows fees for any litigation between the parties, including amount. | Yes; fees for litigating the fee amount affirmed. |
| Does paragraph 16 extend to second amended complaint lacking breach claim? | Association relied on paragraph 16 despite no breach claim. | Fees may extend to all related litigation under the agreement. | Yes; broad language supports fees beyond breach claims. |
Key Cases Cited
- Chodorow v. Moore, 947 So.2d 577 (Fla. 4th DCA 2007) (allocation required when multiple claims share core facts)
- Anglia Jacs & Co. v. Dubin, 830 So.2d 169 (Fla. 4th DCA 2002) (separate-and-distinct analysis for feeable claims)
- Lubkey v. Compuvac Sys., Inc., 857 So.2d 966 (Fla. 2d DCA 2003) (burden on party seeking fees to allocate or show intertwinement)
- State Farm Fire & Casualty Co. v. Palma, 629 So.2d 880 (Fla.1993) (fees limited to entitlement in Palma; distinguished here)
- State Farm Fla. Ins. Co. v. Silber, 72 So.3d 286 (Fla. 4th DCA 2011) (entitlement to fees under contract reviewed de novo)
- Bennett v. Berges, 50 So.3d 1154 (Fla. 4th DCA 2010) (fees on fees within sanction context)
- Schneider v. Schneider, 32 So.3d 151 (Fla. 4th DCA 2010) (no ban on fees for litigating fees; Palma not controlling here)
- Trytek v. Gale Indus., Inc., 3 So.3d 1194 (Fla.2009) (fee awards under contract or statute may include fee litigation)