SARA R. MACKENZIE AND RALPH MACKENZIE, Appellants/Cross Appellees,
CENTEX HOMES, A NEVADA GENERAL PARTNERSHIP, BY CENTEX REAL ESTATE CORPORATION, A NEVADA CORPORATION, SULLIVAN RANCH HOMEOWNERS ASSOCIATION, INC., A FLORIDA CORPORATION, ET AL., Appellees/Cross Appellants.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Lake County, William G. Law, Jr.,
R. MacKenzie, Mount Dora, Appellants/Cross Appellees.
D. Edwards, Jr., of Lowndes, Drosdick, Doster, Kantor &
Reed, P.A., Orlando, for Appellees/Cross Appellants, Centex
Homes, a Nevada General Partnership, by Centex Real Estate
Corporation, a Nevada Corporation.
Appearance for other Appellees/Cross Appellants.
R. MacKenzie and Ralph MacKenzie challenge the trial
court's final judgment and amended final judgment entered
on their three-count complaint against Centex Homes, a Nevada
General Partnership, by Centex Real Estate Corporation, a
Nevada Corporation ("Centex"), and Sullivan Ranch
Homeowners Association, Inc., a Florida Corporation
("the HOA"). Although the trial court granted the
MacKenzies' request for attorney's fees on count II,
they argue the trial court erred in reducing their requested
attorney's fees and costs and in failing to apply a
contingency fee multiplier on that count. Centex
cross-appeals the portion of the final judgment declining to
award it attorney's fees as the prevailing party on
counts I and III, for alleged discovery violations, and as
assignee of the HOA's entitlement to attorney's fees.
We reverse that portion of the final judgment declining to
award Centex prevailing party attorney's fees on count
III. In all other respects, we affirm without further
MacKenzies reside in the Sullivan Ranch residential
development, which was developed by Centex. In April 2015,
they filed a three-count, fifth amended complaint against
Centex and the HOA. Although each count sought a declaration
of the parties' rights under the Declaration of
Covenants, Conditions and Restrictions ("the
Declaration"),  each count requested distinct
July 2015, the trial court dismissed count III with
prejudice, reserving jurisdiction to award attorney's
fees and costs. Subsequently, the trial court rendered
summary final judgment against the MacKenzies on the
remaining two counts, again reserving jurisdiction to award
attorney's fees and costs. The MacKenzies appealed the
summary final judgment as to count II only. In MacKenzie
v. Centex Homes, 208 So.3d 790 (Fla. 5th DCA 2016), this
Court reversed the summary final judgment on count II and
remanded for further proceedings.
remand, the trial court held several hearings regarding the
parties' competing requests for attorney's fees
pursuant to the Declaration and relevant statutory fee
provisions. It determined that the MacKenzies were the
prevailing party on count II, which it determined was the
significant issue in the case, and that Centex and the HOA
were the prevailing parties on count III. Though it awarded
fees to the MacKenzies on count II, it declined to award fees
to Centex on count III, finding that count III was an
insignificant part of the case that was resolved early on. We
agree with Centex that the trial court erred in denying its
request for fees on count III.
court's determination of whether a party prevails on the
"significant issues" in litigation so as to
designate that party the prevailing party for the purpose of
awarding attorney's fees is reviewed for an abuse of
discretion. Olson v. Pickett Downs Unit IV
Homeowner's Ass'n, 205 So.3d 869, 872 (Fla. 5th
DCA 2016) (citing Moritz v. Hoyt Enters., Inc., 604
So.2d 807, 810 (Fla. 1992)). Conversely, "[t]he
determination of whether multiple claims within a lawsuit are
separate and distinct for purposes of attorney's fees is
a matter of law to be reviewed de novo." Leon F.
Cohn, M.D., P.A. v. Visual Health & Surgical Ctr.,
Inc., 125 So.3d 860, 863 (Fla. 4th DCA 2013) (quoting
Avatar Dev. Corp. v. DePani Constr., Inc., 883 So.2d
344, 345 (Fla. 4th DCA 2004)). Further, a de novo review
applies where a court's attorney's fee order rests on
the interpretation of a statute or contract. Moore v.
Estate of Albee, 239 So.3d 192, 194 (Fla. 5th DCA 2018)
(citing Infiniti Emp't Sols., Inc. v. MS Liquidators
of Ariz., LLC, 204 So.3d 550, 553 (Fla. 5th DCA 2016)).
law permits more than one prevailing party in a single
lawsuit where each of the claims that support a fee award is
'separate and distinct.'" Leon F. Cohn,
M.D., P.A., 125 So.3d at 863 (quoting Fid. Warranty
Servs., Inc. v. Firstate Ins. Holdings, Inc., 98 So.3d
672, 677 (Fla. 4th DCA 2012) (reversing denial of fees to
defendant that prevailed on one distinct claim)). Multiple
claims within a lawsuit are separate and distinct if they can
support an independent action and are not simply alternative
theories of liability for the same wrong. Id.
(citing Fid. Warranty Servs., 98 So.3d at 677).
initially recognized by the trial court, count III was
distinct from the MacKenzies' other two requests for
declaratory relief. Count III depended on unique allegations
of wrongdoing and elements of proof based on unique
provisions of the Declaration. Moreover, the trial court
dismissed count III with prejudice after adopting
Centex's argument that the plain language of the
Declaration precluded the relief sought in count III and that
count could not be amended to assert a viable cause of
its apparent recognition of the distinct nature of count III,
the trial court declined to award fees, noting the time
expended in the defense of the claim was not
"significant." The court erred in this regard. Both
the statutory and contractual attorney's fee provisions
applicable to the dispute contain mandatory fee language.
Specifically, section 720.305, Florida Statutes, states that
the prevailing party in an action to redress a failure or
refusal to comply with the governing documents of a
homeowners' association "is entitled" to
recover fees. § 720.305(1), Fla. Stat. (2018).
Similarly, the Declaration states that the prevailing party
in an action to enforce the governing documents "shall
be entitled" to recover attorney's fees. Neither
provision contains a de minimis exception. Accord Sanchez
v. State Farm Fla. Ins. Co., 997 So.2d 1209, 1210 (Fla.
3d DCA 2008) (Shepard, J., dissenting); see also First