Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-56 _____________________________ WALTON PLANTATION MASTER ASSOCIATION, INC., Appellant, v. OPO, LLC, Appellee. _____________________________ On appeal from the Circuit Court for Walton County. Jeffrey E. Lewis, Judge. April 21, 2021 ROWE, J. Walton Plantation Master Association, Inc. appeals a stipulated final judgment awarding attorney’s fees and costs to OPO, LLC after it prevailed on all issues in a declaratory judgment action. Walton reserved the right to challenge OPO’s entitlement to fees. Walton argues that the trial court erred when it found that OPO had a right to recover its attorney’s fees and costs as to all issues litigated in the action. Walton raises three issues on appeal. We affirm as to the second and third issues without further comment. But we reverse the trial court’s ruling as to the first issue—that OPO was entitled to recover attorneys’ fees for litigating the North Half claims. OPO owns several parcels of real property within the northern half and southern half of the Walton Plantation community. OPO filed a declaratory judgment action in circuit court to determine: 1) whether OPO was subject to the Master Declaration of Restrictive Covenants and Easements for Walton Plantation (the Declaration) on its North Half property; 2) whether OPO’s North Half property was subject to a recreational easement; and 3) whether Walton could impose assessments authorized under the Declaration on “parcels” against OPO’s “miscellaneous property” (in both the North and South Half). The trial court entered a final judgment ruling for OPO on all issues. The court determined that OPO’s North Half property was not subject to the Declaration, but that OPO’s South Half property was subject to the Declaration. The court then found that the North Half property was not subject to a recreational easement. Last, the trial court determined that none of OPO’s property was subject to assessments as “parcels.” After the court entered the final judgment, OPO moved for attorney’s fees and costs under the prevailing party provision of the Declaration. Meanwhile, Walton appealed the final judgment. The trial court held a hearing on OPO’s motion. OPO argued that it was entitled to attorney’s fees and costs as to all issues under the prevailing party provisions of the Declaration and its by- laws because OPO was a party to the Declaration on its South Half property. Walton countered that because OPO successfully obtained a judgment from the trial court that its North Half property was not subject to the Declaration, OPO could not then recover attorney’s fees as to the first two issues in the litigation that related only to the North Half property. Even so, the trial court ruled that OPO was entitled to fees on all issues because the issues related to enforcement of the Declaration and thus were inextricably intertwined. After the trial court ruled on OPO’s entitlement to fees, the parties entered into a stipulated judgment awarding OPO attorney’s fees and costs. But Walton reserved for appeal the entitlement issue. This timely appeal followed. While this appeal was pending, this Court decided the related appeal filed by Walton challenging the final judgment in the underlying action. We affirmed per curiam. See Walton Plantation 2 Master Ass’n, Inc. v. OPO, LLC, 291 So. 3d 555 (Fla. 1st DCA 2020), reh’g denied (Mar. 10, 2020). At the same time, this Court denied OPO’s motion for appellate attorney’s fees. This Court also denied OPO’s motion for rehearing seeking reconsideration of the order denying the fee motion. Walton argues that we should reverse the trial court’s judgment awarding attorney’s fees to OPO because OPO’s property in the North Half was not subject to the Declaration. And thus, OPO could not recover fees under the prevailing party provision of the Declaration for the first two issues litigated in the lawsuit. Because the stipulated judgment determining OPO’s entitlement to fees depends on the trial court’s interpretation of the Declaration, our review is de novo. See First Baptist Church of Cape Coral, Fla., Inc. v. Compass Constr., Inc., 115 So. 3d 978, 980 n.4 (Fla. 2011) (applying de novo standard of review to trial court’s interpretation of contract providing for fee recovery). Attorney’s fees incurred while prosecuting or defending a claim “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). The trial court found that OPO was entitled to attorney’s fees under the Declaration as to all issues raised in the litigation. But this was error as to the first two issues. The trial court found that OPO’s North Half property was not subject to the Declaration or to a recreational easement. For this reason, as to the North Half issues, OPO had no right to recover attorney’s fees based on a contract it successfully argued never existed. See David v. Richman, 568 So. 2d 922, 923 (Fla. 1990) (holding that “a party is precluded from claiming attorney’s fees under a contract which has been found to have never existed”); Sand Lake Hills Homeowners Ass’n, Inc. v. Busch, 210 So. 3d 706, 709 (Fla. 5th DCA 2017) (“[A] stranger to the contract cannot recover attorney’s fees based on the contract.”). Even so, the trial court found that because OPO owns properties in the South Half that are subject to the Declaration, OPO could recover attorney’s fees on all issues because the issues were inextricably intertwined. The trial court determined that all the issues required interpretation of the Declaration. But the trial 3 court erred in its determination because the issues are separate and distinct. Claims are separate and distinct, and not inextricably intertwined, when each claim could support an independent action and are not simply alternative theories of liability for the same wrong. Shelly L. Hall, M.D., P.A. v. White, 97 So. 3d 907, 909 (Fla. 1st DCA 2012) (citing Ocean Club Cmty. Ass’n, Inc. v. Curtis, 935 So. 2d 513, 516 (Fla. 3d DCA 2006)). There were three issues in the declaratory judgment action: (1) whether OPO’s North Half property was subject to the Declaration; (2) whether OPO’s North Half property was subject to a recreational easement; and (3) whether OPO’s miscellaneous property (whether located in the North Half or South Half) were “parcels” subject to assessment by the Association. Issues one and two dealt with whether a valid contract existed, while issue three dealt with contract interpretation and enforcement. The trial court’s rulings on the first two issues—that OPO’s North Half property was not subject to the Declaration or to a recreational easement—left unanswered whether Walton could assess OPO’s properties (in the North Half and South Half) as parcels. Because the issues in the litigation were not inextricably intertwined, the trial court erred in finding OPO was entitled to attorney’s fees and costs as to the first two issues raised in the litigation. OPO could not recover attorney’s fees and costs under the Declaration on those issues because it is a stranger to the contract. For these reasons, we reverse the portion of the judgment awarding attorney’s fees and costs to OPO based on the trial court’s determination that OPO was entitled to recover attorneys’ fees for litigating the North Half claims. We otherwise affirm the judgment. AFFIRMED in part; REVERSED in part. ROBERTS, J., concurs; KELSEY, J., dissents without opinion. 4 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Gary A. Shipman and Robert Lee Kaufman of Dunlap & Shipman, P.A., Santa Rosa Beach, for Appellant. T. A. Borowski, Jr. and Darryl Steve Traylor, Jr. of Borowski & Traylor, P.A., Pensacola, for Appellee. 5