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 S.K. CONDOMINIUM II ASSOCIATION, ) INC., and SKBP LLC, ) ) Appellants, ) ) v. ) Case No. 2D18-4483 ) NS/CSE SIESTA KEY, LLC, and S.K. ) CONDOMINIUM ASSOCIATION, INC., ) ) Appellees. ) ___________________________________) Opinion filed February 5, 2020. Appeal from the Circuit Court for Sarasota County; Hunter W. Carroll, Judge. Mark A. Hanson and Daniel J. Lobeck of The Law Offices of Lobeck & Hanson, P.A., Sarasota, for Appellants. Brandon T. Crossland and P. Alexander Quimby of Baker & Hostetler, LLP, Orlando, for Appellee NS/CSE Siesta Key, LLC. No appearance for S.K. Condominium Association, Inc. KHOUZAM, Chief Judge. S.K. Condominium II Association, Inc., and condominium unit owner SKBP LLC (collectively, S.K. II) filed suit against their condominium developer, NS/CSE Siesta Key, LLC, and a sister condominium association, S.K. Condominium Association, Inc. (collectively, Siesta Key). S.K. II was dissatisfied with the distribution of rights and obligations amongst the parties under the Master Declaration of Condominium. It sought declaratory relief, injunctive relief, and judicial revision of the Declaration. The case was disposed of by summary judgment, and the trial court awarded attorney's fees to Siesta Key based on article IX of the Declaration and section 718.125, Florida Statutes (2016). S.K. II appeals from this award, and we reverse in part because neither the declaration nor the statute supports the award of fees. "Florida courts follow the 'American Rule' that attorney's fees may only be awarded pursuant to an entitling statute or agreement among the parties." Am. Family Mut. Ins. Co. v. Alvis, 72 So. 3d 314, 317 (Fla. 2d DCA 2011) (citing Dade County v. Pena, 664 So. 2d 959, 960 (Fla. 1995)). Without a contractual or statutory basis for fees, "each party, including the successful one, in litigation must ordinarily bear the burden of his own attorneys' fees." Gen. Motors LLC v. Bowie, 58 So. 3d 934, 936 (Fla. 4th DCA 2011) (quoting Gen. Motors Corp. v. Sanchez, 16 So. 3d 883, 884-85 (Fla. 3d DCA 2009)). We review the application of such provisions de novo. Wells Fargo Bank Nat'l Ass'n for Morgan Stanley ABS Capital, MSAC 2007-HE3 v. Bird, 234 So. 3d 833, 834 (Fla. 5th DCA 2018) (citing Hinkley v. Gould, Cooksey, Fennell, O'Neill, Marine, Carter & Hafner, P.A., 971 So. 2d 955, 956 (Fla. 5th DCA 2007)). The fee award to Siesta Key was based first on article IX(C) of the Master Declaration, which provides in pertinent part: Costs of Enforcement: Should Declarant, any Owner or any Association find it necessary to employ an attorney or institute legal action against any party to enforce any provisions of this Master Declaration, the non-complying -2- party shall pay all costs in connection with such action, including court costs and reasonable attorneys' fees and other professionals' fees for pretrial, trial, and appellate proceedings, whether or not judicial proceedings are involved and including those incurred in any bankruptcy or probate proceedings. Siesta Key contends that it was forced to hire an attorney to defend against S.K. II's attempt to destroy or otherwise circumvent the Master Declaration through a judicial reformation of that document. According to this characterization, Siesta Key's defense constituted "enforcement" of the Master Declaration, entitling it to attorney's fees. However, even assuming that Siesta Key's litigation constituted enforcement, it is insufficient to allow recovery of fees: by its own terms, article IX(C) only allows recovery from noncomplying parties. Siesta Key does not allege that S.K. II is or ever was in breach of any of the provisions of the Master Declaration. Rather, it argues that S.K. II breached the Declaration merely by filing this underlying lawsuit. This position is untenable, for "every unsuccessful action for breach of contract would itself become a breach of contract, a result totally unrecognized by our law." Dan Galasso Waste Serv., Inc. v. Hemery, 528 So. 2d 1356, 1357 (Fla. 3d DCA 1988). Indeed, "[s]imply by incorrectly perceiving its legal rights under the contract and bringing an action to enforce these rights as it perceived them, the plaintiff was not, as urged, in 'breach of this agreement.' " Id. The analysis may have been different if article IX(C) made no reference to "non-complying" parties and simply awarded fees to the party that prevails in litigation. However, we are not at liberty to rewrite the contract to include "prevailing party" language, as such judicial interference here is "strictly forbidden by well- established principles of contract law." Islander Beach Club Condo. v. Skylark Sports, -3- L.L.C., 975 So. 2d 1208, 1212 (Fla. 5th DCA 2008) (quoting Dan Galasso, 528 So. 2d at 1358)). In opposition to this outcome, Siesta Key alternatively contends that the term "non-complying party" in article IX(C) is "mere surplusage," devoid of any substantive meaning. But this position is contrary to the rules of contract construction, for "no word or part of an agreement is to be treated as a redundancy or surplusage if any meaning, reasonable and consistent with other parts, can be given to it." Roberts v. Sarros, 920 So. 2d 193, 196 (Fla. 2d DCA 2006) (quoting Singer v. Singer, 706 So. 2d 914, 915 (Fla. 4th DCA 1998)). And because we see nothing unreasonable or inconsistent with the contract in assigning attorney's fees only against parties in breach of the Master Declaration, we cannot simply ignore the term "non-complying party." We therefore must read article IX(C) to exclude awards of attorney's fees in the situation currently before us. The second basis for fees relied on by the trial court is statutory, contained in section 718.125. That provision states: If a contract or lease between a condominium unit owner or association and a developer contains a provision allowing attorney's fees to the developer, should any litigation arise under the provisions of the contract or lease, the court shall also allow reasonable attorney's fees to the unit owner or association when the unit owner or association prevails in any action by or against the unit owner or association with respect to the contract or lease. However, this reciprocity statute is inapplicable here. As previously discussed, article IX(C) of the Master Declaration does not award fees to any of the parties in the present situation. Therefore, fees cannot be granted based on this statute. -4- Finally, Siesta Key argues that it is entitled to attorney's fees under section 718.302(6), which awards prevailing party fees in actions to compel compliance with section 718.301. S.K. II alleged below that Siesta Key had violated section 718.301 in its initial pleadings and subsequent summary judgment filings. And Siesta Key argues that it can support affirmance under the tipsy coachman doctrine by presenting "any argument supported by the record even if not expressly asserted in the lower court." Cook v. Bay Area Renaissance Festival of Largo, Inc., 164 So. 3d 120, 123 (Fla. 2d DCA 2015) (quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 645 (Fla. 1999)). However, the record does not support the tipsy coachman claim. Section 718.302(6) was not merely left unpled; it was never discussed or litigated in the trial court at all. Since section 718.302(6) was never asserted as a basis for fees in Siesta Key's motion, S.K. II had no opportunity to argue or present pertinent facts. See Meyer v. Meyer, 25 So. 3d 39, 42-43 (Fla. 2d DCA 2009) ("[A]ffirming based on an alternate ground that was not at issue in the trial court was improper where it operated to deprive a party of the opportunity to present evidence and argument on the matter." (citing Robertson v. State, 829 So. 2d at 908-09)). We therefore deny Siesta Key's claim on this basis. In conclusion, we reverse the award of attorney's fees based on the Master Declaration and section 718.125. Reversed. MORRIS and BADALAMENTI, JJ., Concur. -5-