Meyer v. Scutieri , 539 So. 2d 602 ( 1989 )

539 So.2d 602 (1989)

Mortimer MEYER, Rodney R. Young, Jr., George Jack, Doris S. Brown, Eleanor Bruce Milton Simon and Samuel Miller, Appellants,
v.
Philip J. SCUTIERI, Jr., Joan Adubato, Frank Adubato, Joan Warger, Albert Perez, Pan American Bank, N.A., As Trustee and Sunrise Point, Inc., Appellees.

No. 88-654.

District Court of Appeal of Florida, Third District.

March 14, 1989.

Friedman, Baur, Miller & Webner and Dale Webner, Miami, for appellants.

Hal S. Vogel, Miami, for appellees.

Before BARKDULL, HUBBART and NESBITT, JJ.

PER CURIAM.

This is an appeal by Mortimer Meyer and certain other condominium unit owners at Sunrise Point Condominium from an adverse trial court order which denied their motion to vacate, in part, an attorney's fees order insofar as it awarded attorney's fees not only against Sunrise Point Condominium Association, Inc., the losing plaintiff in a suit brought below against the appellees herein, but also against "each of the members of the class it represents, jointly and severally... ." Appellants sought to vacate the quoted portion of the attorney's fee order under Fla.R.Civ.P. 1.540. We reverse the order appealed from upon a holding that the trial court had no jurisdiction in this unsuccessful class action suit to enter an attorney's fee award against every member of the subject class, jointly and severally. This is so because (a) the final judgment was entered solely against Sunrise Point Condominium Association, Inc., which was sole plaintiff in the last operative complaint in this case, and (b) an attorney's fee award may only be entered, where appropriate, against the losing party to the lawsuit and cannot be entered, as here, against non-parties. See Johnson v. Schneegold, 419 So.2d 684, 685 (Fla. 2d DCA 1982); Dade County v. Grossman, 354 So.2d 131, 132 (Fla. 3d DCA 1978).

The order under review is reversed, and the cause is remanded to the trial court with directions (1) to grant the appellants' motion to vacate, and (2) to allow the plaintiff Sunrise Point Condominium Association, Inc. to assess each class member a pro rata share of the subject attorney's fee award in accordance with the Florida Condominium Statute. §§ 718.115(2), 718.119(1), Fla. Stat. (1987).

REVERSED AND REMANDED.