Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT CARROLLWOOD COVE AT ) EMERALD GREENS CONDOMINIUM ) ASSOCIATION, INC., ) ) Appellant, ) ) v. ) Case No. 2D20-697 ) CARROLLWOOD COVE, LLC, ) ) Appellee. ) ) Opinion filed April 23, 2021. Appeal from the Circuit Court for Hillsborough County; Elizabeth G. Rice, Judge. David J. Lopez of James R. DeFurio, P.A., Tampa, for Appellant. Steven H. Mezer and Lilliana M. Farinas- Sabogal of Becker & Poliakoff, P.A., Tampa, for Appellee. SLEET, Judge. Carrollwood Cove at Emerald Greens Condominium Association, Inc. (the Association), appeals the trial court's Final Order on Competing Motions for Attorney’s Fees and Costs entered against it and in favor of Carrollwood Cove, LLC (the Developer). Because the Association was the prevailing party as to the claims raised in the Developer's second amended complaint, it is entitled to attorney fees pursuant to the provisions of the applicable declaration of condominium (the Declaration), and we must reverse. On December 6, 2016, the Developer filed its second amended complaint, seeking to recover a portion of the refund related to an overpayment of waste disposal fees and an alleged overpayment of the Developer's guarantee. In response, the Association filed an answer, in which it denied the allegations of the complaint, denied any liability to the Developer, and raised thirteen affirmative defenses. The Association previously had filed its third amended counterclaim against the Developer as well as a third-party complaint against Bruce Lamotte, Alan Pollack, David Connelly, Craig Knight, and Mark Stone, who were appointed to serve as the Association's board of directors (collectively the Directors). The Developer and the Directors raised fourteen affirmative defenses in response. All of these claims, counterclaims, and affirmative defenses were heard by the trial court at a nonjury trial in March 2018, following which the trial court entered its final judgment, concluding that the Developer had failed to satisfy its burden as to counts one, two, and three of the second amended complaint and that the Association had satisfied its burden with respect to five of its affirmative defenses. The trial court also entered a final judgment in favor of the Developer on the Association's counterclaims and in favor of the Directors on the third-party complaint. Following trial, the Association, the Developer, and the Directors all moved for attorney fees pursuant to provisions of the Declaration. The trial court held a hearing on the competing motions and subsequently entered a fee award against the Association in favor of the Directors but concluded that the Association and the -2- Developer were not entitled to attorney fees because neither met the definition of a prevailing party. It reasoned that because the Developer failed to satisfy its burden as to the counts in the second amended complaint and the Association failed to satisfy its burden as to the counts in the third amended counterclaim, the case essentially ended in a wash and therefore neither party could recover attorney fees as the prevailing party. The Association appeals this order, arguing that the trial court erred in finding that it was not the prevailing party and was not entitled to attorney fees. The prevailing party for purposes of attorney fees is a party that the trial court determines prevailed on significant issues in the litigation. See Moritz v. Hoyt Enters., Inc., 604 So. 2d 807, 810 (Fla. 1992). "[I]n the absence of a plaintiff's success on some theory of recovery, under Florida law, the lack of success by a defendant on a counterclaim does not disqualify a defendant from 'prevailing party' status in the litigation." Chow v. Chak Yam Chau, 640 F. App'x 834, 841 (11th Cir. 2015); see also Stout Jewelers, Inc. v. Corson, 639 So. 2d 82, 84 (Fla. 2d DCA 1994) (determining in a landlord-tenant action that where the case was dismissed because of the landlord's failure to prosecute, the tenant was "the prevailing party even though it did not succeed on its counter-claim"); Scutti v. Daniel E. Adache & Assocs. Architects, P.A., 515 So. 2d 1023, 1024 (Fla. 4th DCA 1987) (examining the stalemate that seemingly results when the plaintiff's claims and the defendant's counterclaims have both failed and holding that "[u]nder such circumstances the rule established by the cases seems to be that, where a plaintiff loses on his complaint, the defendant is the prevailing party whether he is a successful counterclaimant or not"); Winnie v. Buckhalter, 362 So. 2d 1014, 1015 (Fla 1st DCA 1978) (holding that the defendant who successfully resisted the mechanics' lien action but did not prevail on the counterclaim was entitled to an award of fees under -3- the mechanics' lien statute for services rendered incident to the mechanics' lien aspect of case). In its final judgment on the Developer's second amended complaint, the trial court ruled that the Developer had "failed to satisfy its burden" on all counts of its complaint and that the Association had successfully satisfied its burden on five of its affirmative defenses. However, in its Order on Competing Motions for Attorney's Fees, the trial court noted that because the Developer failed on its claims and the Association failed on its counterclaims, there was no prevailing party for the purposes of awarding attorney fees on those issues. This was incorrect. The Association prevailed on the significant issues in litigation by defeating the Developer's second amended complaint. Having established that the Association was the prevailing party on the Developer's second amended complaint, we now look to whether the Association was entitled to an award of attorney fees. We conclude that it was. "It is well-settled that attorneys' fees can derive only from either a statutory basis or an agreement between the parties." Trytek v. Gale Indus., Inc., 3 So. 3d 1194, 1198 (Fla. 2009). Here, the Association claims entitlement to attorney fees based on the Declaration. Paragraph 20.4 of the Declaration provides: 20.4 Costs and Attorney's Fees. In any proceeding arising because of an alleged failure of a Unit Owner or the Association to comply with the requirements of the Act, this Declaration, the Articles of incorporation, the By-laws and the Rule and Regulations adopted pursuant to said documents, as the same may be amended from time to time, the prevailing party shall be entitled to recover the costs of the proceeding and such reasonable attorney's fees (including appellate attorney's fees) incurred. The trial court held that Paragraph 20.4 addresses only failures by unit owners and the Association, not the Developer, and that therefore it provides no basis -4- for fees against the Developer. However, the second amended complaint was an action that arose from the alleged failure of the Association to comply with requirements of the Declaration. Thus, it falls within the confines of Paragraph 20.4. Accordingly, the trial court erred in holding that the Association was not the prevailing party and was not entitled to an award of attorney fees. We reverse and remand for entry of an attorney fee award in an amount to be determined by the trial court. Reversed and remanded. KHOUZAM, C.J., and LABRIT, J., Concur. -5-