November 19, 2018

Bresky Law Successfully Obtains Entitlement to Attorney’s Fees for Landowner in Suit Against Community

November 16, 2018*

Bresky Law recently assisted a landowner in obtaining entitlement to attorney’s fees in a lawsuit brought against him by his community regarding termination of his membership in the community and nuisance.

The community sued the landowner for declaratory judgment and nuisance, seeking a ruling that certain actions taken by the landowner in the particular aviation-oriented community violated the community’s governing documents, including the Declaration of Covenants (“Declaration”). The community’s complaint included a count for a declaration that its suspension and termination of the landowner’s membership was authorized; a count for nuisance based on the landowner’s alleged actions; and a count for injunctive relief. The landowner answered and counterclaimed, challenging his expulsion and arguing that the governing documents did not authorize the termination of his membership.

The case proceeded to trial. The court rendered a Final Judgment in which it construed the community’s By-Laws and the Declaration to determine whether the Board was authorized to terminate the landowner’s membership. The court ruled in favor of the landowner, finding that the community’s governing documents did not set forth a procedure for suspending or terminating membership. The court also construed the Declaration and determined that the community failed to establish a prima facie case that the landowner’s activities constituted a nuisance under the governing documents or the law of private nuisance.

The landowner filed a motion for his attorney’s fees based on the language of the Declaration and the reciprocal fee provision in section 57.105(7), Fla. Stat. The community opposed the motion. The community argued that the Declaration authorized a fee award only for suits to enforce the Declaration, and that the landowner’s suit was not such an action.

We represented the landowner in the fee proceedings following trial. We filed a Memorandum of Law in support of the landowner’s Motion for Attorney’s Fees and Costs. We argued that the court should grant the landowner his attorney’s fees because the lawsuit involved the parties enforcing their competing interpretations of the Declaration. We also argued that the court’s Final Judgment enforced the terms of the Declaration because it rejected the community’s improper attempt to terminate the landowner’s membership for actions not prohibited by the Declaration and in a manner not authorized by the governing documents.

We presented the landowner’s arguments at the hearing on entitlement to attorney’s fees. At the end of the hearing, the trial court issued an oral ruling granting our client entitlement to attorney’s fees. The trial court entered a written order consistent with its oral ruling the same day. This favorable result for our client should allow him to obtain an award of attorney’s fees incurred in the litigation.

* Not final until the disposition of any timely motions for rehearing or appeals.