Recovering Attorney’s Fees and Importance of Time Requirements

Recovering Attorney’s Fees and Importance of Time Requirements

By Michael J. Gelfand, Esq. / Published September 2022

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etting into the Weeds: Association Cannot Obtain Attorney’s Fees against Prior Owner after Compliance 

Appearances may not be everything, but appearances motivate many to buy into a community. Thus, it is not uncommon for a Florida homeowners association to sue an owner who fails to properly maintain a yard and landscaping. What happens when the property is sold before the lawsuit is completed and the new owner cures the violations? Can the association recover its attorney’s fees from the prior owner? Maybe not.

     In a recent decision, a Florida appellate court ruled that an association that achieved its goal of a better landscaped yard could not recover its attorney’s fees. The facts in Mauriello v. The Property Owners Association of Lake Parker Estates, Inc., 47 Fla. L. Weekly D 843 (Fla. 2nd DCA, April 13, 2022), indicate that the association sued the homeowners seeking a mandatory injunction order to require the owners to remove weeds and thereafter continually maintain the lawn and landscaping in a “neat condition.”

     The litigation continued for years until the property was sold. The association named the new owner as a defendant in the litigation and continued to seek an injunction against the prior owners. After the new owners fixed the lawn and landscaping, the association dismissed the lawsuit but sought attorney’s fees against the prior owner. The trial court determined that the association was entitled to prevailing attorney’s fees because the prior owners’ “volitional act” in selling their home rendered the case moot or not having a practical need to proceed.

     The Florida appellate court disagreed and reversed the decision of the trial court. The appellate court noted that generally the defendant is considered the prevailing party when a plaintiff voluntarily dismisses a case. How-ever, when a case is dismissed because the claim has become moot, the court can examine the results to determine which party prevailed.

     Here, the association did not dismiss the lawsuit when the property was sold. Instead, the association added the new owner to the litigation and continued to seek a mandatory injunction against the prior owner. The association only dismissed the case when the new owner cured the violations. “[T]he association may have obtained the relief it sought, but it came from the new owner, not the Mauriellos,” the court determined. “Therefore, it was not a prevailing party.”

     Associations should be aware with any litigation that recovering attorney’s fees in litigation is not guaranteed. While it is unlikely that many owners will sell their property to spite an association’s attorney’s fee claim, owners under neighborhood pressure sometimes do strange things. Thus, before running headlong into court, consider whether there are alternatives, especially if an owner is in the process of selling!

Negligence Lawsuit against Hospital Tossed Where Plaintiff Ignored Time Requirements

     What happens when you have a claim against someone for damages? Before you file a lawsuit, you may be required to first send notice of your claim to the other side. When notice of a claim must be provided, usually there are limited timeframes.

     A reoccurring issue is, when does the time clock start? When you put the notice in the mailbox? Or, is it when the notice is received?

     Recently, a Florida appellate court in a case involving an alleged attack ruled that the time clock for presenting notice of a claim begins when the person receives the claim in his or her hands, not when mailed. In Simmons v. Public Health Trust of Miami-Dade County, 47 Fla. L. Weekly D 977 (Fla. 3rd DCA, May 4, 2022), the following dates of events and their relationship to each other are important:

  • October 11, 2013. Date of claimed attack by another patient in the bathroom inside his hospital bedroom causing injury.
  • October 9, 2015. Plaintiff filed a lawsuit against Jackson Memorial Hospital and the resident who attacked him.
  • October 11, 2016. Plaintiff sent written notice of his claim against Jackson to the Florida Department of Financial Services (DFS).
  • October 13, 2016. DFS receives the Plaintiff’s notice.
  • October 17, 2016. Plaintiff sent written notice to Jackson, which received the written notice.

     The trial court found that the plaintiff failed to provide written notice of his claim in a timely manner and granted summary judgment for Jackson Memorial Hospital.

     The Florida appellate court agreed with the decision of the trial court. The court pointed out that §768.28(6), Fla. Stat. (2013), requires a plaintiff to “present” his claim in writing to the defendant within three years of the claim before filing a lawsuit. The court interpreted that the term “presentation” requires receipt of the item being presented; it is not the date that the plaintiff mails the notice of claim. The important date is the date that the defendant receives, in hand, the notice of the claim.

     This decision highlights the necessity for community associations to carefully read their insurance policies when faced with a claim. All too often, in addition, notice of claims are not provided in a timely fashion. This may result in a lawsuit being barred. When you have questions regarding claims, contact your association’s counsel so that time requirements are not missed!

Michael J. Gelfand, Esq.

Senior Partner, Gelfand & Arpe, P.A.

     Michael J. Gelfand, Esq., the senior partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and effectively achieve those goals. Gelfand is a dual Florida Bar board certified lawyer in condominium and planned development law and in real estate law, a certified circuit and county civil court mediator, a homeowners association mediator, an arbitrator, and parliamentarian. He is a past chair of the Real Property Division of the Florida Bar’s Real Property, Probate & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at or (561) 655-6224.