Environ Towers I Condominium Association, Inc. v. Virginia Hokenstrom and Holly Hokenstrom

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

ENVIRON TOWERS I CONDOMINIUM ASSOCIATION, INC.,
Appellant,

v.

VIRGINIA HOKENSTROM and HOLLY HOKENSTROM,
Appellees.

No. 4D14-3376

[November 18, 2015]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael L. Gates, Judge; L.T. Case No. 10-44734 CACE
12.

Max R. Price of the Law Offices of Max R. Price, P.A., Miami, for
appellant.

Kraig S. Weiss of Silverberg & Weiss, P.A., Weston, for appellees.

PER CURIAM.

With its roots in 2010, this case is part of an ongoing battle between a
condominium association and unit owners. The Association obtained an
injunction to enforce a provision of its Declaration of Condominium; the
unit owners prevailed in a contempt proceeding brought by the Association
to enforce the injunction. We reverse an order awarding attorney’s fees to
the unit owners and hold that (1) both the Association and the unit owners
may recover attorney’s fees, having prevailed in separate, distinct aspects
of the case; (2) the Association is entitled to reinstatement of some fees
awarded by the trial court, but later revoked; and (3) the trial court must
make the specific findings required by Florida law in its award of attorney’s
fees.

The Original Complaint for Injunctive Relief

In November of 2010, Environ Towers I Condominium Association, Inc.
sued unit owners Virginia and Holly Hokenstrom for injunctive relief
pursuant to section 718.303, Florida Statutes (2010). The Association
proceeded against Holly because she did not meet the 55+ age requirement
contained in the Declaration of Condominium. The Association’s prayer
for relief sought an order directing Holly to vacate the unit. Also, the
Association sought attorney’s fees under Article 20 of the Declaration and
section 718.303. The Association prevailed, and on November 15, 2011,
the circuit court entered an injunction requiring Holly to “vacate Unit 2-
503 at the Environ Towers Condominium within thirty (30) days of the
date of this Order.”

The Hokenstroms appealed this final judgment, and this court affirmed
without a written opinion. See Hokenstrom v. Environ Towers I Condo.
Ass’n, 108 So. 3d 1105 (Fla. 4th DCA 2013) (“Hokenstrom I”). Using the
language in our standard order, we also granted the Association’s motion
for appellate attorney’s fees, conditioned on the trial court’s determination
that the Association was the prevailing party.

The Association Files a Motion for Contempt to Enforce the Injunction

While the injunction appeal was pending, the Association moved to hold
Holly in contempt for willfully failing to “vacate” the property pursuant to
the injunction. After a hearing, the trial court found Holly in contempt of
court for failing to “vacate” the unit and “continuing to spend several hours
nearly every day at the premises . . . and staying overnight on several
occasions.” Hokenstrom v. Environ Towers I Condo. Ass’n, 127 So. 3d 798,
799 (Fla. 4th DCA 2013) (“Hokenstrom II”).

Holly appealed the contempt order and we reversed. Id. We held that,
as it applied to the facts of the case, the language of the injunction was
too “imprecise and ambiguous” to support a contempt finding. Id. at 800.
We pointed out that the term “vacate” could be interpreted in ways that
might “impair” Holly’s ability to properly fulfill her responsibilities as a co-
owner of the unit. Id. We noted that, after the final judgment, “the
daughter had taken actions which included entering into a new lease
agreement and moving to an apartment in another city where she
receive[d] her mail.” Id.

Finally, this court granted Holly’s motion for prevailing party attorney’s
fees, conditioned on the trial court’s determination that she was the
prevailing party.

Motions for Attorney’s Fees
The Association’s First Motion for Fees

While the injunction appeal in Hokenstrom I was pending, the
Association moved for attorney’s fees through December 2011. By agreed

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order, the Hokenstroms deposited $17,500 into the court registry, to be
released to the “prevailing party on appeal.” After the mandate issued in
Hokenstrom I, the trial court ordered the release of the $17,500 to the
Association.

The Association’s Second Motion for Fees

After the conclusion of the appeal in Hokenstrom I, while the appeal of
the contempt order in Hokenstrom II was pending, the Association moved
for attorney’s fees incurred between December 2011 and March 2013, at
both the trial and appellate levels. In July of 2013, the trial court awarded
the Association a total of $36,000 in fees; of this amount, $24,390 was
attributable to the appeal in Hokenstrom I, $9,306.10 was attributable to
the contempt proceeding, and $2,304.40 was unspecified.

The Hokenstroms’ Motion for Fees

After prevailing in the contempt appeal in Hokenstrom II, the
Hokenstroms moved for trial and appellate fees incurred in defending
against the motion for contempt and sought to vacate the July 2013 fee
order to the extent that it awarded the Association fees related to the
contempt proceeding.

The Association took the position that it was the overall prevailing party
in the case and that the Hokenstroms were not entitled either to attorney’s
fees or to have the July 2013 order vacated.

The trial court found that the Hokenstroms were the prevailing party
“on the issue of contempt” and vacated the July 2013 fee order in its
entirety. After a hearing, the trial court awarded the Hokenstroms
$41,529.50 in attorney’s fees from the Association.

Discussion

Both section 718.303 and Article 20 of the Declaration permit the
award of attorney’s fees to the different prevailing parties in the injunction
action and the contempt action. Section 718.303(1) states that the
“prevailing party” in an action “for injunctive relief” is “entitled to recover
reasonable attorney’s fees.” An injunction is typically enforced by
contempt. See, e.g., Fernandez v. Kellner, 55 So. 2d 793, 794 (Fla. 1952)
(stating “[t]hat the court had the power and authority to punish as for a
contempt the willful violation of its injunctive order cannot be
questioned”); see Fla. R. Civ. P. 1.570(c). We therefore read section
718.303’s reference to an action “for injunctive relief” as necessarily

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including contempt proceedings seeking to enforce an injunction. Had
Holly flouted the court’s order and camped out full-time in the unit after
the issuance of the injunction, the Association would likely have prevailed
in the contempt proceeding and been entitled to attorney’s fees under the
statute.

Similarly, Article 20 of the Declaration allows for prevailing party
attorney’s fees in “any proceeding arising because of an alleged failure of
a unit owner to comply with the terms of the declaration, by-laws, and
rules and regulations adopted pursuant thereto.” The contempt
proceeding in this case falls under the broad umbrella of “any proceeding.”

We reject the Association’s argument that there can be but one
prevailing party in enforcement litigation between a condominium
association and a unit owner. The Association contends that unit owner-
association disputes are essentially breach of contract cases subject to the
“one prevailing party” rule set forth in Hutchinson v. Hutchinson, 687 So.
2d 912 (Fla. 4th DCA 1997). For this argument, the Association relies
upon Khodam v. Escondido Homeowner’s Ass’n, 87 So. 3d 65 (Fla. 4th
DCA 2012), and Hawkins v. Condominium Owners Ass’n of Sand Cay, Inc.,
No. 8:10–cv–650–T–30TBM, 2012 WL 4761357 (M.D. Fla. Oct. 5, 2012).
However, both of these cases were initiated by unit owners as breach of
contract cases. Neither case involved an injunction action or multiple
claims arising from separate facts. More on point are cases holding that
each prevailing party on separate and distinct claims between a unit owner
and an association may be entitled to an award of attorney’s fees in
connection with that claim. See Welleby Condo. Ass’n One, Inc. v. Brown,
561 So. 2d 7 (Fla. 4th DCA 1990); Park Lane Condo. Ass’n v. DePadua,
558 So. 2d 85 (Fla. 1st DCA 1990).

The purpose of civil contempt is not to punish, but to obtain compliance
with a court order. See Bowen v. Bowen, 471 So. 2d 1274, 1277 (Fla.
1985). Proceedings for civil contempt are “‘instituted and tried as a part
of the main cause.’” Seaboard Air Line Ry. Co. v. Tampa S. R. Co., 134 So.
529, 532 (Fla. 1931) (quoting Gompers v. Buck’s Stove & Range Co., 221
U.S. 418, 444–45 (1911)).1

1InSouth Dade Farms, Inc. v. Peters, 88 So. 2d 891, 899 (Fla. 1956), the supreme
court described the nature of a civil contempt proceeding:

A civil contempt proceeding naturally involves in some measure a
transgression against the dignity of the court and the prestige of its
order, however, it is in actuality a proceeding between the parties
to the cause and is instituted and tried as a part of the main case.

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 When used to enforce compliance with an injunction, a civil contempt
arises from different facts than those that gave rise to the original final
decree, so it is separate and distinct from the proceedings giving rise to
the injunction. See Fid. Warranty Servs., Inc. v. Firstate Ins. Holdings, Inc.,
98 So. 3d 672, 678 (Fla. 4th DCA 2012); River Bridge Corp. v. Am. Somax
Ventures, 76 So. 3d 986 (Fla. 4th DCA 2011); Ares v. Cypress Park Garden
Homes I Condo. Ass’n, 696 So. 2d 885 (Fla. 2d DCA 1997). For this reason,
the Association was entitled to recover attorney’s fees for legal work
pertaining to the injunction, and the Hokenstroms were entitled to recover
fees for prevailing in the contempt action.

We agree with the Association that it is entitled to the reinstatement of
that portion of fees in the July 2013 order attributable to the original
appeal of the injunction action. Further, the award of attorney’s fees to
the Hokenstroms was infirm because the trial judge failed to make the
findings required by Florida Patient’s Compensation Fund v. Rowe, 472 So.
2d 1145, 1151 (Fla. 1985). See Levine v. Keaster, 862 So. 2d 876, 881
(Fla. 4th DCA 2003).

On remand, the trial court shall enter a new judgment that complies
with Rowe, awarding attorney’s fees to the Hokenstroms for prevailing in
the contempt action. Any amount awarded to the Hokenstroms should be
reduced by the amount of fees the court restores to the Association from
the July 2013 order.

Reversed and remanded.

GROSS, TAYLOR, JJ., and SHEPHERD, CAROLINE, Associate Judge, concur.

* * *

Not final until disposition of timely filed motion for rehearing.

It should be considered more nearly in the nature of a civil
proceeding between the parties, and to the extent appropriate rules
governing civil causes should apply. When a judgment or decree in
favor of one party is disregarded or violated by another party to the
injury of the former, it is then appropriate for the injured party to
call upon the court to exercise its contempt powers in the
enforcement of its decrees for the benefit of the party in whose favor
the decree has been entered.

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