DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DANIA BEACH BOAT CLUB CONDOMINIUM ASSOCIATION, INC.,
a Florida not for profit corporation, DANIA BEACH MARINA CORP., a
Florida profit corporation, and MICHAEL LALLY, an individual,
Appellants,
v.
PIERRE FORCIER,
Appellee.
No. 4D18-3511
[February 12, 2020]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; William W. Haury, Jr., Judge; L.T. Case No. CACE16-
020450.
Joseph P. Klock, Jr. of Rasco Klock Perez Nieto, Coral Gables, for
appellants.
David A. Wallace and Morgan R. Bentley of Bentley & Bruning, P.A.,
Sarasota, and Albert A. Sanchez of Sanchez Law, PLLC, Sarasota, for
appellee.
KUNTZ, J.
Dania Beach Boat Club Condominium Association, Inc. appeals the
circuit court’s declaratory judgment for Pierre Forcier, a unit owner. The
association also appeals the circuit court’s award of attorney’s fees in the
unit owner’s favor as the prevailing party. We affirm the court’s
judgment on the merits. But we dismiss for lack of jurisdiction the
association’s appeal of the court’s finding of entitlement to attorney’s
fees.
Background
The association is a “commercial dry stack boat condominium
comprised of 210 boat racks.” The unit owner owned one of the units.
After the association sought to terminate the condominium form of
ownership, the unit owner filed a five-count amended complaint against
the association alleging the termination violated the controlling
declaration of condominium.
The main dispute at trial centered on the percentage of unit owners
required to approve the termination of the condominium. The relevant
part of the declaration provides:
13.1 TERMINATION OF CONDOMINIUM:
A. If all Unit Owners and the holders of all liens and
mortgages upon all of the Condominium Parcels execute and
duly record an instrument terminating the Condominium
Property, or if “major damage” occurs as defined herein and
subject to Section 9.1. C, the Condominium Property shall
be removed from the provisions of the Condominium Act and
thereafter owned in common by the Unit Owners. The
undivided interest in the Condominium Property owned in
common by each Unit Owner shall be 1/210.
B. If the Condominium is terminated, the Owners of the
Units shall continue to be responsible for their share of the
Common Expenses attributable to the Condominium
Property and all other Association expenses, as set forth in
this Declaration and the Bylaws, in proportion to their
ownership interest as set forth in Section 13.1A above.
C. If the Owners of at least seventy-five (75%) percent of the
Common elements elect to terminate, they shall have the
option to buy the Units of the other Unit Owners (who desire
to sell) for a period of sixty (60) days from the date of the
meeting wherein the election to terminate was taken. The
purchase price shall be the fair market value of the Common
Elements purchased as determined in the following manner:
[The terms of the appraisal process are omitted.]
The unit owner argued that paragraph 13.1.A. required the approval
of “all” unit owners to terminate the condominium. The association
argued it was operating under paragraph 13.1.C, which allowed for
termination with the approval of 75% of the unit owners.
After a bench trial, the circuit court entered judgment for the unit
owner, found the association’s termination plan invalid, and found that
the unit owner had “all rights, title and interest” in his specific unit. The
2
court also found the unit owner is entitled to attorney’s fees as the
prevailing party. The association appeals.
Analysis
i. The Court’s Judgment on the Merits
The association argues the court applied the incorrect version of
section 718.117, Florida Statutes. It argues the court incorrectly applied
section 718.117, Florida Statutes (2005), even though a 2007
amendment to section 718.117 was incorporated into the declaration.
But the association’s argument ignores the fact that it stipulated before
and at trial that the 2005 version of the statute controls this dispute.
In fact, the association specifically argued to the circuit court that the
statutory amendment could not be applied retroactively because of the
declaration’s specific language. For example, in a motion for summary
judgment, the association argued that “[a]lthough the Florida Legislature
amended section 718.117 to facilitate the termination of condominiums,
the Florida Legislature’s intent was that absent Kaufman[1] language, an
amendment to the Condominium Act will not have retroactive application
to a condominium’s declaration.”
A pretrial stipulation is binding on the parties and the court. Palm
Beach Polo Holdings, Inc. v. Broward Marine, Inc., 174 So. 3d 1037, 1039
(Fla. 4th DCA 2015) (quoting Broche v. Cohn, 987 So. 2d 124, 127 (Fla.
4th DCA 2008)). The association stipulated that the prior version of the
statute applied and even argued it would be an unconstitutional
impairment of contract to retroactively apply the statutory amendment.
As a result, the association waived this argument. 2
1 Kaufman v. Shere, 347 So. 2d 627, 628 (Fla. 3d DCA 1977) (holding
the association’s declaration incorporated the statutory amendments to the
Condominium Act because the declaration expressly adopted provisions of the
Act “as it may be amended from time to time”).
2 We note that the result would not be different without the stipulation. The
declaration in this case did not unambiguously provide that amendments to
chapter 718 would be incorporated into the declaration. See Dimitri v.
Commercial Ctr. of Miami Master Ass’n, 253 So. 3d 715, 718 n.2 (Fla. 3d DCA
2018) (“As the trial court correctly noted, later amendments to chapter 718 may
alter the rights and duties of the parties to an existing declaration if the
declaration specifically incorporates these amendments.” (citing Kaufman, 347
So. 2d at 628)).
3
The association also argues paragraph 13.1.C. allowed dissolution
even without the approval of all the unit owners. The plain language of
that provision applied to unit owners “who desire to sell,” and it set forth
an appraisal process for those owners. But because the record indicates
that the unit owner here did not “desire to sell,” paragraph 13.1.C. did
not apply. 3
ii. The Court’s Finding of Entitlement to Attorney’s Fees
The association also appeals the circuit court’s finding that the owner
is entitled to attorney’s fees as the prevailing party. A finding of
entitlement to attorney’s fees without a determination of the amount of
fees is not appealable. See, e.g., Alexopoulos v. Gordon Hargrove &
James, P.A., 109 So. 3d 248, 250 (Fla. 4th DCA 2013) (citing Winkelman
v. Toll, 632 So. 2d 130, 131 (Fla. 4th DCA 1994)).
The association’s appeal of the court’s finding of entitlement to
attorney’s fees is premature. As a result, that portion of the appeal is
dismissed.
Conclusion
The circuit court’s judgment for the owner is affirmed. The appeal of
the finding of entitlement to attorney’s fees is dismissed for lack of
jurisdiction.
Affirmed in part; dismissed in part.
CIKLIN and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
3 The record shows the association did not follow the appraisal process outlined
in paragraph 13.1.C. So even if paragraph 13.1.C. permitted dissolution absent
unanimous consent, the dissolution still violated the rest of paragraph 13.1.C.
4