final until disposition of timely filed motion for rehearing.
appeal from the Circuit Court for Monroe County, Lower
Tribunal No. 08-320-K Timothy J. Koenig, Judge.
Towers, P.A., and E. Carson Lange and P. Brandon Perkins
(Jacksonville), for appellants.
Mitchell J. Cook, P.A., and Mitchell J. Cook, for appellee.
EMAS, C.J., and HENDON, and MILLER, JJ.
the Burton Family Partnership and Dr. Michael Burton,
challenge an amended final judgment awarding attorney's
fees and prejudgment interest to appellee, Luani Plaza, Inc.
For the reasons set forth below, we affirm in all respects,
save for the award of prejudgment interest granted in
conjunction with fees incurred litigating the amount of fees.
Burton owns two units within Luani Plaza, a commercial plaza
consisting of businesses and professional offices.
"Though not a condominium, the ownership [of units]
constitutes 'a common interest community,' as
generally described in the Restatement (Third) of Property:
Servitudes-'a real-estate development or neighborhood in
which individually owned lots or units are burdened by a
servitude that imposes an obligation that cannot be avoided
by nonuse or withdrawal.'" Luani Plaza, Inc. v.
Burton, 149 So.3d 712, 714 (Fla. 3d DCA 2014) (quoting
Restatement (Third) of Prop.: Servitudes § 6.2 (2000)).
The community is governed by documents, including the
recorded Declaration of Covenants, Conditions, and
Restrictions (the "Declaration"), and the Amendment
to the By-Laws of Luani Plaza, Inc. (the
decade ago, Dr. Burton filed a declaratory action seeking a
determination that he was within his rights to convert his
two commercial units into affordable housing units. Luani
Plaza filed a separate action to foreclose a lien arising out
of unpaid common interest community assessments. The cases
were consolidated, and in 2011, following a bench trial, the
trial court entered a final judgment of foreclosure in favor
of Luani Plaza, finding fee entitlement under the terms of
the Declaration. Dr. Burton appealed the final judgment of
foreclosure and this Court affirmed. Burton, 149
So.3d at 716. It was further determined that the propriety of
awarding attorney's fees was "not ripe for
review," as no fees had yet been awarded. Id.
at 713 n.1.
the mandate issued, the trial court conducted an evidentiary
hearing and entered an amended final judgment awarding
attorney's fees. The court awarded fees incurred in the
underlying litigation, and, relying upon an expansive fee
provision set forth within the By-Laws, further awarded fees
incurred in litigating the amount of fees, otherwise known as
"fees on fees." See, e.g., Geary v.
Butzel Long, P.C., 13 So.3d 149, 153 (Fla. 4th DCA 2009)
(characterizing fees incurred in litigating the amount of
fees as "fees on fees"). The court also awarded
prejudgment interest on the total merged fee amount back to
2011, the date fee entitlement under the Declaration was
initially determined by court order. The instant appeal
to attorney's fees based on the interpretation of a
statute or contract is subject to de novo review. State
Farm Fla. Ins. Co. v. Silber, 72 So.3d 286, 288 (Fla.
4th DCA 2011) (citation omitted). "The standard of
review for an award of attorney's fees, whether based on
contract or statute, is abuse of discretion."
Universal Beverages Holdings, Inc. v. Merkin, 902
So.2d 288, 290 (Fla. 3d DCA 2005) (citing Thomas v.
Perkins, 723 So.2d 293, 294 (Fla. 3d DCA 1998)).
Finally, "[a] trial court's decision concerning a
plaintiff's entitlement to prejudgment interest is
reviewed de novo." Berloni S.p.A. v. Della Casa,
LLC, 972 So.2d 1007, 1011 (Fla. 4th DCA 2008) (citation
challenge the trial court's award of fees incurred in
litigating the amount of fees. Generally, "[i]t is
settled that in litigating over attorney'[s] fees, a
litigant may claim fees where entitlement is the issue, but
may not claim attorney's fees incurred in litigating the
amount of attorney's fees." N. Dade Church of
God, Inc. v. JM Statewide, Inc., 851 So.2d 194, 196
(Fla. 3d DCA 2003) (citations omitted). Nonetheless, certain
contractual fee provisions are sufficiently broad to warrant
an exception. See Waverly at Las Olas Condo. Ass'n,
Inc. v. Waverly Las Olas, LLC, 88 So.3d 386, 389 (Fla.