CVP COMMUNITY CENTER, INC. v. MCCORMICK 105, LLC

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
C.V.P. COMMUNITY CENTER, INC.,
Appellant,
v.
MCCORMICK 105, LLC,
Appellee.
No. 4D19-1515
[August 5, 2020]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carol-Lisa Phillips, Judge; L.T. Case No.
CACE16005134.
Kristen M. Fiore and Diane G. DeWolf of Akerman LLP, Tallahassee,
and Christine B. Gardner of Akerman LLP, West Palm Beach, for appellant.
Manuel Farach of McGlinchey Stafford, Fort Lauderdale, for appellee.
WARNER, J.
C.V.P. Community Center, Inc. appeals from an award of attorney’s fees
to McCormick 105, LLC, an institutional mortgagee and condominium unit
owner. The trial court awarded fees based upon an attorney’s fees
provision in a long-term lease and declaration of condominium and the
application of section 57.105(7), Florida Statutes (2014). While the lease
and condominium documents allowed fees only to the lessee, the court
found that the statute authorized a reciprocal award to McCormick when
it was the prevailing party. That section, however, applies to contracts
which were entered into on or after October 1, 1988. As the contracts in
this case were entered into before that date, section 57.105(7) did not
apply. We thus reverse the award of attorney’s fees to McCormick. C.V.P.
also appeals the denial of an award of fees to it. However, we dismiss its
appeal as untimely.
Century Village of Pembroke Pines, a condominium, was developed in
1984. Its recreational facilities are the subject of a long-term lease (LTL)
from C.V.P. Community Center, Inc. The provisions of the lease and
condominium documents require each individual unit owner to pay rent
to C.V.P. for the use of the facilities. The Master Management Agreement
of the condominium provides that C.V.P. holds a first lien on the units,
paramount to all others. The documents also provide that where an
institutional mortgagee acquires title as a result of a foreclosure, it is not
liable for rental sums coming due prior to the acquisition of title.
McCormick became an owner of a condominium unit in Century Village
through purchase of a unit in a foreclosure sale. When McCormick sought
to sell its unit, a dispute arose with C.V.P. as to whether it owed the prior
owner’s past due rental payments. McCormick filed suit for declaratory
judgment and breach of contract as to these past due amounts and also
sought an abatement of rents for as long as it held title. Ultimately, the
court held that McCormick was an institutional mortgagee and not liable
for the past due assessments. It entered judgment in McCormick’s favor.
Thereafter, McCormick and C.V.P. both filed motions for attorney’s fees
and costs. McCormick sought fees as the prevailing party based upon the
lease provisions and other documents in which C.V.P., as lessor, was
entitled to fees if it prevailed. By application of section 57.105(7),
McCormick claimed entitlement to fees. C.V.P. also sought fees based
upon provisions in the lease and documents.
The trial court found that McCormick prevailed and granted fees to it,
setting a hearing regarding the amount of its fees. Later, after a second
hearing on C.V.P.’s motion for attorney’s fees, the court denied C.V.P. its
attorney’s fees, referencing its previous order determining that McCormick
was the prevailing party. C.V.P. did not appeal this ruling.
Subsequently, the court held an evidentiary hearing on McCormick’s
motion for fees and costs and awarded McCormick $141,475.15 in
attorney’s fees, costs and expert witness fees. C.V.P. timely appealed the
court’s order granting fees to McCormick. It also appealed the prior order
denying its fees.
Where an attorney’s fee award depends upon a trial court’s
interpretation of a contract and statute, the issue is a matter of law subject
to a de novo standard of review. US Acquisition, LLC v. Tabas, Freedman,
Soloff, Miller & Brown, P.A., 87 So. 3d 1229, 1234 (Fla. 4th DCA 2012);
Deutsche Bank v. Quintela, 268 So. 3d 156 (Fla. 4th DCA 2019).
C.V.P. argues that only it (and not McCormick) can recover attorney’s
fees and costs under articles 11.5 and 13 of the Long Term Lease and
article 21.3 of the Declaration of Condominium. Articles 11.5 and 13 of
the LTL provide that only a “Lessor” can recover attorney’s fees and costs.
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And article 21.2 limits recovery of fees and costs to “Management Firms,
Lessors, or the Sponsor if it prevails.” We need not set forth the extensive
provisions of the documents here, because McCormick does not contest
these provisions limit attorney’s fees to C.V.P.. Instead, it argues that the
amendments to section 57.105(7) which made attorney’s fees reciprocal
applied because there was a novation.
Section 57.105(7), enacted in 1988, provides:
(7) If a contract contains a provision allowing attorney’s fees
to a party when he or she is required to take any action to
enforce the contract, the court may also allow reasonable
attorney’s fees to the other party when that party prevails in
any action, whether as plaintiff or defendant, with respect to
the contract. This subsection applies to any contract
entered into on or after October 1, 1988.
(Emphasis added.) The LTL and condominium declarations were executed
in 1984 and contained a provision that the agreement “is to be construed
in accordance with the laws of the State of Florida as they exist on
February 1, 1984.” There is no provision in any of the documents which
incorporates future statutory amendments into the documents. Therefore,
based upon the plain reading of the statute and the LTL, section 57.105(7)
would not apply.
McCormick argues, however, that a novation occurred to the original
condominium documents and LTL by the transfer of the certificate of title
after foreclosure such that the obligations of the old unit owner were
cancelled and new obligations arose, thus engrafting section 57.105(7) into
the provisions of the documents. It relies on Jakobi v. Kings Creek Village
Townhouse Assoc., Inc., 665 So. 2d 325 (Fla. 3d DCA 1995). While we
disagree with Jakobi, we conclude it is inapplicable.
In that case, Jakobi bought a townhouse in 1992 and wanted to install
screening on the front of his home, which the homeowner’s association
disapproved. After litigation, the association stipulated that he could build
his screened enclosure. Jakobi then moved for attorney’s fees because the
association bylaws contained a provision which allowed fees to the
association in any litigation with the owner. The bylaws predated the
enactment of section 57.105(7), and Jakobi argued that under the
reciprocity provisions, he was entitled to fees as the prevailing party, as he
claimed that the statute became part of the contract when he purchased
in 1992.
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On appeal from the denial of his motion, the appellate court reversed,
concluding that the deed transferring the unit to Jakobi resulted in a
novation of the bylaws and declarations such that the owner could claim
the benefits of the statute. The court explained the elements of a novation:
There are four essential elements necessary to form a
substitute contract or novation: (1) the existence of a
previously valid contract; (2) the agreement of the parties to
cancel and extinguish the first contract; (3) the agreement of
the parties that the second contract takes the place of the first;
and (4) the validity of the new contract. Because the
declaration and bylaws are contractual, the first and fourth
elements are plainly met in this case. Further, the second and
third elements—agreement by all parties to cancel the first
contract and replace it with a new contract—are established
by the specific provisions of the declaration and bylaws
themselves.
Id. at 327 (citations omitted). The court cited Sans Souci v. Division of
Florida Land Sales & Condominiums, 448 So. 2d 1116, 1121 (Fla. 1st DCA
1984), for the concept that a statute in effect at the time of a novation will
determine the rights and obligations of the parties to the novation, even if
the statute was not in effect at the inception of the original contract. In
Sans Souci, however, the court emphasized the element of consent to
cancel the old agreement and for the new agreement to take its place. It
then determined that consent had not been shown.
In Jakobi the court concluded that consent had been shown by the fact
that the declaration of covenants and by-laws required a new owner to be
responsible for any unpaid assessments. When Jakobi took title, he took
over the obligation of unpaid assessments, which, according to the court,
amounted to mutual consent to a valid new contract.
We disagree with the reasoning of Jakobi that taking over the obligation
of unpaid assessments amounts to a novation of the contract between the
parties. In our view, there is no mutual assent to a new contract; instead,
the owner agreed to be bound by the terms of the old contract.
Nevertheless, the facts of this case are considerably different.
McCormick did not agree to be responsible for any unpaid assessments.
The gist of the litigation was McCormick’s insistence that it was not
required to pay any unpaid assessments pursuant to the terms of lease
and condominium documents as they were originally drafted. It assumed
no obligation of a prior owner.
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Furthermore, the condominium documents contain provisions which
would show no consent to establish a new contract incorporating post
1984 law. The documents expressly provide that 1984 law applies. They
also provide that “no amendments to the declaration or other
condominium documents or a change in the Florida Statutes shall serve
to amend this Lease.” Given those direct statements in the documents,
we do not find in the documents any mutual consent to establish a valid
new contract.
There was no novation of the contract which would make section
57.105(7) applicable. McCormick was not entitled to fees pursuant to any
provision of the LTL or condominium documents. The court erred in
granting fees to it.
As to C.V.P.’s appeal of the order denying its motion for attorney’s fees,
we dismiss it as untimely. Post-judgment orders denying motions for
attorney’s fees are appealable final orders. Fla. Peninsula Ins. Co. v.
Deporter, 275 So. 3d 628, 629 (Fla. 4th DCA 2019); BDO Seidman, LLP v.
British Car Auctions, Inc., 789 So. 2d 1019, 1020 (Fla. 4th DCA 2001). As
such, an appeal must be filed within thirty days. The order denying
C.V.P.’s motion for attorney’s fees did not require any further judicial
labor, thus making it final, and it was not appealed when rendered. The
mere fact that the order of denial referenced a prior order granting fees to
McCormick did not make it non-final. The obvious purpose for reference
to the earlier order was to reiterate its finding that McCormick was the
prevailing party. That reference did not make the order non-final. Because
the appeal of the order is untimely, we do not have jurisdiction to address
the issue.
For the foregoing reasons, we reverse the order granting attorney’s fees
to McCormick. We dismiss the appeal of the order denying attorney’s fees
to C.V.P..
GROSS and GERBER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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