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Burton Family Partnership v. Luani Plaza, Inc.

Florida Court of Appeals, Third District

July 3, 2019

The Burton Family Partnership, et al., Appellants,
v.
Luani Plaza, Inc., etc., Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An appeal from the Circuit Court for Monroe County, Lower Tribunal No. 08-320-K Timothy J. Koenig, Judge.

          Rogers 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.

          Before EMAS, C.J., and HENDON, and MILLER, JJ.

          MILLER, J.

         Appellants, 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.

         Dr. 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 "By-Laws").

         Over a 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.

         After 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 ensued.

         STANDARD OF REVIEW

         Entitlement 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 omitted).

         LEGAL ANALYSIS

         Appellants 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. ...


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