Florida/Georgia Personal Injury & Workers Compensation

...4th DCA 1997) (applying attorney's fee provision of mechanics' lien statute and recognizing that Stuart Plaza "stated the correct rule"); Lion Oil Co. v. Tamarac Lakes, Inc., 232 So.2d 20 (Fla. 4th DCA 1970) (applying mechanic's lien statute); Vidibor v. Adams, 509 So.2d 973 (Fla. 5th DCA 1987) (involving section 723.068, Florida Statutes (1985)); Century Constr....

...n any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.'" Munao, Munao, Munao & Munao v. Homeowners Ass'n of La Buona Vita Mobile Home Park, Inc., 740 So.2d 73, 78 (Fla. 4th DCA 1999) (construing § 723.068, Fla....

...In 1986, the court dismissed some of the tenants on the ground they failed to respond to discovery sought by Vidibor. After Vidibor filed a motion to tax costs, the rest of the tenants took a voluntary dismissal, without prejudice. We reverse. Pursuant to section 723.068, Florida Statutes (1985), attorney's fees are specifically available to "the prevailing party": Except as provided in s....

...Section 723.037(6) provides that upon proper request, a party shall not be entitled to attorney's fees if that party refuses to agree to mediate or arbitrate. But no contention is made in this case that anyone requested mediation or arbitration. We think the language in section 723.068 is mandatory, and that if there is a "prevailing party," the court must award attorney's fees....

...hasten to note there is nothing in this record to support appellees' contention that they dismissed for "strategic" reasons. We therefore reverse the appealed order and remand for a determination and award of a reasonable attorney's fee pursuant to section 723.068....

...Grondzik of Lutz, Bobo, Telfair, Eastman, Gabel & Lee, Tallahassee, for Appellant. G. Philip J. Zies and Christopher C. Martin of Zies Widerman & Malek, Melbourne, for Appellees. COHEN, J. We review the trial court's order granting prevailing party attorney's fees pursuant to section 723.068, Florida Statutes (2005), in favor of Appellees, the Homeowners' Association of Hollywood Estates and certain residents as class action plaintiffs....

...[1] The trial court reserved jurisdiction to determine entitlement to, and the amount of, attorney's fees and costs. Both parties filed motions for attorney's fees. The trial court found that Appellees prevailed on the substantial issues in the case and were entitled to attorney's fees under section 723.068 as the prevailing party....

...T & W also argued that because the trial court granted summary judgment in its favor on count III, Appellees were not the prevailing party and thus not entitled to fees. T & W instead asserted that it was the prevailing party and entitled to attorney's fees under section 723.068....

...Gould, Cooksey, Fennell, O'Neill, Marine, Carter & Hafner, P.A., 971 So.2d 955, 956 (Fla. 5th DCA 2007); Colonel v. Meyerson, 921 So.2d 690, 691 (Fla. 5th DCA 2006). However, when entitlement rests on the interpretation of a statute or contract, our review is de novo. Hinkley, 971 So.2d at 956. Section 723.068 states, "[e]xcept as provided in s.723.037, in any proceeding between private parties to enforce provisions of this chapter, the prevailing party is entitled to a reasonable attorney's fee." It is the requirement that the action "enfo...

...Appellees contend the trial court properly awarded them attorney's fees on count II because T & W's complaint alleged that this count, in part, arose under chapter 723, the deed of restrictions was amended in derogation of section 723.058, and the prevailing party was entitled to attorney's fees pursuant to section 723.068....

...they were entitled to attorney's fees as the prevailing party. The trial court's declaration that T & W could use the procedure in section 723.037 does not compel the conclusion that T & W is entitled to prevailing party attorney's fees, pursuant to section 723.068....

...On these grounds, Appellant's complaint sought to have the amendment declared invalid. Because Appellant was seeking "to enforce" this provision of chapter 723, the complaint alleged that Appellant would be entitled to an attorney's fee award if it prevailed. As noted by the majority, section 723.068 provides for the award of prevailing party attorney's fees in any proceeding "to enforce provisions of this chapter[.]" Because count II of the complaint sought to enforce section 723.058(1), and because Appellees prevailed on that count, fees were properly awarded....

...the time this court specifically provided in an order relinquishing jurisdiction for that purpose. In the interest of judicial economy, however, we also reverse on the merits and hold that the trial court erred in taxing fees against the appellants. Section 723.068, Florida Statutes, provides that "in any proceeding between private parties to enforce provisions of this chapter, the prevailing party is entitled to a reasonable attorney's fee." The trial court apparently based its decision on the...

...il appellants satisfied each of the conditions listed in the May 23, 1997 order. On November 10, 1997, the trial court entered a final judgment awarding the Homeowners Association and Gaito attorney's fees and costs as prevailing parties pursuant to section 723.068, Florida Statutes....

...es in this case. Appellants also contend that the trial court erred in the amount of fees awarded and the application of a contingency risk multiplier to the fees awarded to the Homeowners Association and Homeowners Association/Guest Fee Plaintiffs. Section 723.068, Florida Statutes, provides that "in any proceeding between private parties to enforce provisions of this chapter, the prevailing party is entitled to a reasonable attorney's fee." The test for determining the prevailing party was set forth in Hensley v....

...Florida case law. We hold that the record supports the trial court's express findings and satisfies the requirements of Quanstrom. We also hold that the trial court properly awarded attorney's fees for Gaito. See Fla. R. Civ. P. 1.180(a); Fla. Stat. § 723.068....

...The legislature has actually preempted this subject. See § 723.004, Fla. Stat. (2003). When litigation results under chapter 723 between private parties, the prevailing party is typically entitled to receive an award of reasonable attorneys' fees. See § 723.068, Fla....

...Little Farm residents could be made. It further sought a declaration to invalidate the Settlement Agreement signed by the Village of El Portal, an injunction against the closing of Little Farm, as well as a statutory attorney’s fees award under section 723.068, Florida Statutes (2015). The four named defendants, the Village of El Portal, Fullview International Group, LLC, Wealthy Delight, LLC, and Biscayne Park Acquisition Group, LLC filed motions to dismiss....

...3 JORDAN, Circuit Judge. Florida law awards attorney’s fees to the “prevailing party” in “proceeding[s] to enforce the provisions” of the Florida Mobile Home Act. See Fla. Stat. § 723.068. As relevant here, the district court ruled that § 723.068 did not provide for an award of fees as to voluntarily-dismissed amended complaints that—though alleging violations of the FMHA—did not include claims for violations of the FMHA, request relief under the FMHA, or seek to enforce com- pliance with the FMHA....

...dismissal was self-executing. See Fed. R. Civ. P. 41(a)(1)(A)(i); 9 Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. § 2363 (4th ed. & Apr. 2022 update). Claiming victory, the owners sought attorneys’ fees under § 723.068, which entitles the “prevailing party” to such fees in “pro- ceeding[s] to enforce provisions” of the FMHA....

...City of Daytona Beach, 353 USCA11 Case: 21-13789 Document: 35-1 Date Filed: 01/12/2023 Page: 6 of 37 6 Opinion of the Court 21-13789 F.3d 901, 904 (11th Cir. 2003). But here entitlement to fees depends on the interpretation of § 723.068 of the FMHA....

...eys’ fees to the owners on the residents’ amended complaints for the reason articulated by the dis- trict court. As we explain, the amended complaints were not “pro- ceeding[s] to enforce provisions” of the FMHA under § 723.068. The common-law rule in Florida, as elsewhere, is that “each party pay[s] its own [attorneys’] fees.” Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So. 2d 276, 278 (Fla. 2003). As a fee-shifting statute in derogation of the common law, § 723.068 is “strictly con- strued.” Campbell v....

...erogation of the common law “will not be interpreted to displace the common law further than is clearly necessary.” Carlile v. Game & Fresh Water Fish Comm’n, 354 So. 2d 362, 364 (Fla. 1977). So any doubts about § 723.068 cut against an award of fees. Fees are awarded to a prevailing party under § 723.068 in “proceeding[s] to enforce provisions” of the FMHA....

...2d USCA11 Case: 21-13789 Document: 35-1 Date Filed: 01/12/2023 Page: 7 of 37 21-13789 Opinion of the Court 7 DCA 2007); Vidibor v. Adams, 509 So. 2d 973, 974 (Fla. 5th DCA 1987). The key statutory phrase in § 723.068 is “to enforce.” As di- rected by the Florida Supreme Court, see Advisory Opinion to Governor re Implementation of Amendment 4, 288 So. 3d 1070, 1078 (Fla. 2020), we look to dictionaries at the time of enactment to determine the phrase’s meaning. When § 723.068 became law in 1984, the word “enforce” meant “[t]o compel observance of or obedience to: enforce a regulation” or “[t]o compel.” The Ameri- can Heritage Dictionary Second College Edition 454 (1985)....

...tory relief arising out of the association’s amendment of the deed of restrictions. The defendants prevailed on the developer’s claim with respect to the amendment of the deed, and the trial court awarded them fees under § 723.068....

...FMHA—cited by the residents in support of their other legal claims—did not make the amended complaints “proceeding[s] to enforce provisions” of the FMHA. The district court correctly de- nied fees to the owners as to those complaints under § 723.068. B In his well-written concurrence, Judge Newsom opts to de- cide the case on the ground that under Florida law a plaintiff’s vol- untary dismissal without prejudice does not make the defendant a prevailing party....

...to the result.” Fahs v. Martin, 224 F.2d 387, 398 (5th Cir. 1955). 1 See generally 36 Fla. Jur. 2d, Mobile Homes and Recreational Vehicles § 74 (Nov. 2022 Update) (using T & W Developers as an illustration of how § 723.068 operates). USCA11 Case: 21-13789 Document: 35-1 Date Filed: 01/12/2023 Page: 10 of 37 10 Opinion of the Court 21-13789 Our decision today is based on, and limited to, the FMHA’s “to enforce” language in § 723.068....

...Gibbs, 383 U.S. 715, 726 (1966) (“Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the par- ties, by procuring for them a surer-footed reading of applicable law.”). Second, our holding is consistent with the text of § 723.068 and with the one Florida appellate decision to have addressed the FMHA’s “to enforce” language....

...��s judgment. I write sep- arately to describe my misgivings about the rationale underlying the majority opinion and to explain my own reasoning. All here agree that this case turns on the meaning of Fla. Stat. § 723.068....

...In pertinent part, that statute says that “in any proceed- ing between private parties to enforce the provisions of [the Florida Mobile Homes Act], the prevailing party is entitled to a reasonable attorney’s fee.” As relevant here, § 723.068 embodies two neces- sary conditions to a fee award....

...And second, the fee-seeker must have been the “prevailing party” in that proceeding. The majority affirms the district court’s denial of the own- ers’ fee request based on their failure to satisfy the first of § 723.068’s two conditions....

...ate Filed: 01/12/2023 Page: 15 of 37 21-13789 NEWSOM, J., Concurring. 3 notion that ‘simply invoking’ the FMHA is ‘sufficient to confer en- titlement to . . . fees’” under § 723.068 and explained, instead, that a reviewing court “had to ‘look at the true nature of the relief re- quested and argued’ by” the plaintiff in the underlying suit....

...there was no RICO violation—and thus no possibility of winning their lawsuit. None of that, to be clear, is necessarily to say that the resi- dents’ suit here was a “proceeding . . . to enforce” the FMHA within the meaning of § 723.068....

...Filed: 01/12/2023 Page: 19 of 37 21-13789 NEWSOM, J., Concurring. 7 statute and ask whether the owners here were “prevailing part[ies]” within the meaning of § 723.068—and in particular, whether they obtained prevailing-party status when the residents voluntarily dismissed their second amended complaint without prejudice. It is to that question that I now turn....

...prevailing-party status. I turn next to those indications. 2 I find in its precedent three indications that the Florida Su- preme Court would define the term “prevailing party” in Fla. Stat. § 723.068 not to include beneficiaries of voluntary dismissals with- out prejudice....

...1990))). In practice, this strict-construction rule requires Florida courts to apply the American-rule norm unless a statute clearly says otherwise. Accordingly, I start from the premise that if a statute like § 723.068 doesn’t clearly make a litigant a prevailing party, then that litigant doesn’t qualify. USCA11 Case: 21-13789 Document: 35-1 Date Filed: 01/12/2023 Page: 29 of 37 21-13789 NEWSOM, J., Concurring....

...State v. Poole, 297 So. 3d 487, 507 (Fla. 2020). Given the Florida Supreme Court’s recent “turn to textual- ism”—my term—I think it reasonably clear that it would hold that the term “prevailing parties” in § 723.068 does not include benefi- ciaries of voluntary dismissals without prejudice....

...Art, Black’s Law Dictionary (11th ed. 2019). In our particular “spe- cialty”—attorneys’-fees statutes—the term “prevailing party” car- ried three meanings in 1984, when the Florida Legislature enacted § 723.068....

...the term “prevailing party” and the well-accepted federal definition, the question is whether there is any reason to think that Florida courts had settled on some idiosyncratic, divergent understanding at the time § 723.068 was enacted....

...USCA11 Case: 21-13789 Document: 35-1 Date Filed: 01/12/2023 Page: 35 of 37 21-13789 NEWSOM, J., Concurring. 23 uncontroversial. In fact, just the year before § 723.068’s adoption, the Third District Court of Appeal—without any meaningful ex- planation and over a vigorous dissent—had seemingly upended a decade-old consensus defining the term more or less as federal courts did....

...2d at 922 (apparently reversing these cases); id. at 922–26 (Ferguson, J., dissenting).7 In short, there is very good reason (grounded in settled lin- guistic understandings and consistent federal precedent) to think that the Florida Supreme Court would interpret § 723.068 to ex- clude the beneficiaries of voluntary dismissals without prejudice, and that there is precious little evidence to support a contrary con- clusion. 7 See Steinhardt v....

...Date Filed: 01/12/2023 Page: 36 of 37 24 NEWSOM, J., Concurring. 21-13789 * * * To reiterate, I would hold for three reasons that Fla. Stat. § 723.068’s use of the term “prevailing party” is properly under- stood (and would be interpreted by the Florida Supreme Court) not to include the beneficiary of a voluntary dismissal without prej- udice....

...result. And finally, that court has recently underscored the im- portance of interpreting statutory words and phrases in accordance with their plain (and original) meaning, and the best evidence is that at the time of § 723.068’s enactment the term “prevailing party” didn’t—and thus doesn’t—include the beneficiary of a vol- untary dismissal without prejudice. III Our duty in a ca...

...21-13789 NEWSOM, J., Concurring. 25 Florida Supreme Court would hold that the beneficiary of a volun- tary dismissal without prejudice is not a “prevailing party” within the meaning of Fla. Stat. § 723.068—and, accordingly, that the owners here are not entitled to fees....

...opriate. Appellee initially filed an appeal of this order but later dismissed the appeal and simply refiled their class action under Florida Rule of Civil Procedure 1.220. Appellants sought recovery of attorney’s fees pursuant to the provisions of section 723.068, Florida Statutes, as the prevailing party....

...appellee had no cognizable Chapter 723 claim or had not attempted to plead a Chapter 723 claim. Appellants were successful in obtaining dismissal of the initial suit and, therefore, were the “prevailing party” entitled to fees under the terms of section 723.068, Florida Statutes....

...[and] NICA prevailed by any measure.” But this argument is not consistent with the language of the settlement agreement and statute. Section 766.31 does not address prevailing parties, but rather links liability for expenses with a final claim determination and award. Cf., § 723.068, *848 Fla....

...c., a Florida not-for-profit corporation (the Association). The Association brought the action under the provisions of the Florida Mobile Home Act, chapter 723, Florida Statutes (2003) (the Act). MMI and Mr. Mihevic requested attorney’s fees under section 723.068 of the Act. With an exception not material here, section 723.068 provides: “[I]n any proceeding between private parties to enforce provisions of this chapter, the prevailing party is entitled to a reasonable attorney’s fee.” “[T]he language in section 723.068 is mandatory, and ......

...Mihevic as appellants. On the redesignated cross-appeal, MMI does not challenge the denial of its request for attorney’s fees and costs. But Mr. Mihevic argues persuasively that “[b]y any measure he was the prevailing party vis-a-vis the Association under Section 723.068.” 1 After a careful review of the record and the trial court’s judgment, we agree....