22-000773F Sweetwater Pointe Homeowners Association, Inc. vs. Samuel Arnold, Tammy Arnold, Steven Crowley, Sherry Crowley, Bonnie Cowen And Timothy Cowen Status: Closed DOAH Final Order on Thursday, April 21, 2022.

Summary: Sweetwater Pointe's motion for attorney's fees and costs, pursuant to section 720.305(1) Florida Statutes, as the prevailing party in DOAH Case No. 21-1241, is denied.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

S WEETWATER P OINTE H OMEOWNERS

A SSOCIATION , I NC . ,

Petitioner ,

vs. Case No. 22 - 0773F

S AMUEL A RNOLD , T AMMY A RNOLD ,

S TEVEN C ROWLEY , S HERRY C ROWLEY ,

B ONNIE C OWEN A ND T IMOTHY C OWEN ,

Respondents .

/

O RDER D ENYING S WEETWATER P OINTE H OMEOWNERS A SSOCIATION , I NC .Ô S

M OTION T O T AX A TTORNEY Ô S F EES A ND C OSTS

This cause came before the undersigned on: Petitioner Sweetwater Pointe

Hom eowners Association Inc.Ôs (Sweetwater Pointe) Motion for Summary

Final Order and to Tax AttorneyÔs Fees and Costs, filed July 23, 2021;

Sweetwater PointeÔ s Motion to Tax AttorneyÔs Fees and Costs, filed

January 24, 2022 ; and Respondent sÔ Response to Motion to Tax AttorneyÔs

Fees and Costs, filed February 8, 2022. On March 11, 2022, the undersigned

entered an Order that requested additional briefing on Sweetwater Pointe Ôs

request for attorneyÔs fees and costs pursuant to section 720.305(1), Florida

Sta tutes. On March 28, 2022, the parties both filed supplemental memoranda

in response to the Order, which the undersigned has considered.

Background

In the underlying proceeding, DOAH Case N o. 21 - 1241, Respondent s

challenged whether Sweetwater Pointe prope rly revived its expired

Declaration of Covenants and Restrictions pursuant to sections 720.403

through 720.407, Florida Statutes (2020). On July 23, 2021 Ð prior to the final

hearing Ð Sweetwater Pointe filed a Motion for Summary Final Order and to

Tax Attorne yÔs Fees and Costs. That same date, the undersigned issued an

Order Denying Summary Final Order, which also held that Ñ[t]he

undersigned defers ruling on [ Sweetwater Pointe Ôs ] motion, to the extent it

seeks attorneyÔs fees and costs pursuant to sections 12 0.595 and/or 720.305,

Florida Statutes.Ò

The undersigned conducted a final hearing on the merits of the underlying

matter on October 27, 2021, and issued a Recommended Order on January 5,

2022. On March 8, 2022, the Department of Economic Opportunity

(Dep artment) rendered a Final Order in this matter, which adopted the

undersignedÔs Recommended Order in full, affirmed the DepartmentÔs

Determination Number 20163, and approved Sweetwater Pointe Ôs request to

revitalize its declaration of covenants . In an Orde r dated March 11, 2022, the

undersigned denied Sweetwater PointeÔs Motion to Tax AttorneyÔs Fees and

Costs, to the extent it sought attorneyÔs fees and costs pursuant to section

120.595.

Arguments of Parties

Sweetwater Pointe seeks attorneyÔs fees and co sts, as the prevailing party

in the underlying proceeding, pursuant to section 720.305(1). Section

720.305(1) provides:

(1) Each member and the memberÔs tenants,

guests, and invitees, and each association, are

governed by, and must comply with, this chapt er,

the governing documents of the community, and

the rules of the association. Actions at law or in

equity, or both, to redress alleged failure or refusal

to comply with these provisions may be brought by

the association or by any member against:

(a) The association;

(b) A member;

(c) Any director or officer of an association who

willfully and knowingly fails to comply with these

provisions; and

(d) Any tenants, guests, or invitees occupying a

parcel or using the common areas.

The prevailing party in any such litigation is

entitled to recover reasonable attorney fees and

costs. A member prevailing in an action between

the association and the member under this section,

in addition to recovering his or her reasonable

attorney fees, may recover additiona l amounts as

determined by the court to be necessary to

reimburse the member for his or her share of

assessments levied by the association to fund its

expenses of the litigation. This relief does not

exclude other remedies provided by law. This

section doe s not deprive any person of any other

available right or remedy.

Sweetwater Pointe Ôs motions and pleadings point out that Respondent s

brought the underlying matter pursuant to chapter 720 , part III, which

alleged that Sweetwater PointeÔs efforts in revita lizing its expired

Declaration of Covenants and Restrictions failed to comply with sections

720.403 through 720.407. Sweetwater PointeÔs motions and pleadings, relying

on the plain language of section 720.305(1), argue that, as the prevailing

party, it is entitled to reasonable attorneyÔs fees and costs.

RespondentsÔ responses contend that its administrative challenge to

Sweetwater Pointe Ôs revitalization efforts were not an Ñ[a]ction[] at law or in

equity,Ò and w ere directed at the Department of Economic OpportunityÔs

approval of the revitalization, and not directly against Sweetwater Pointe.

Analysis

Generally, attorneyÔs fees and costs may only be awarded when authorized

by statute or by agreement between the parties. Dade C nt y . v. Pena, 664 So.

2d 959 (Fla. 1995). Sweetwater Pointe , as the prevailing party below, seeks

attorneyÔs fees and costs pursuant to section 720.305(1). Because a statute

that awards attorneyÔs fees is in derogation of the common law rule that

parties are responsible for their own attorneyÔs fees, section 720.305(1) must

be strictly construed. See Campbell v. Goldman, 959 So. 2d 223, 226 (Fla.

2007).

Section 720.305(1) provides for prevailing party attorneyÔs fees and costs

for Ñ[a]ctions at law or in equityÒ brought by the Ñassoc iationÒ or ÑmemberÒ to

redress a failure or refusal to comply with chapter 720, the Ñgoverning

documents of the association, and the rules of the community.Ò Thus, for

section 720.305(1) to apply, the underlying action must have been brought by,

or against , an ÑassociationÒ or Ñmember.Ò

Section 720.301(9) defines ÑassociationÒ as follows:

ÑHomeownersÔ associationÒ or Ñassociation Ò means a

Florida corporation responsible for the operation of

a community or a mobile home subdivision in which

the voting mem bership is made up of parcel owners

or their agents, or a combination thereof, and in

which membership is a mandatory condition of

parcel ownership, and which is authorized to

impose assessments that, if unpaid, may become a

lien upon the parcel. The term ÑhomeownersÔ

associationÒ does not include a community

development district or other similar special taxing

district created pursuant to statute.

Section 720.301(10) defines ÑmemberÒ as follows:

ÑMemberÒ means a member of an association, and

may include, but is not limited to, a parcel owner or

an association representing parcel owners or a

combination thereof, and includes any person or

entity obligated by the governing documents to pay

an assessment or amenity fee.

In the underlying matter, the Declara tion of Covenants and Restrictions

for the Sweetwater Pointe Homeowners Association, Inc., had expired , as a

result of the Marketable Record Title Act (MRTA). Under MRTA, restrictive

covenants cease to be effective as to land parcels governed by the restri ctive

covenants 30 years after the restrictive covenants have been referenced in a

deed that burdens each lot. § 712.02, Fla. Stat. Sweetwater Pointe conceded

below that its Declaration of Covenants and Restrictions expired by operation

of MRTA.

Because t he Declaration of Covenants and Restrictions for Sweetwater

Pointe Homeowners Association, Inc. , had expired, Sweetwater Pointe sought

to revive these governing documents so that, inter alia , its covenants and

restrictions would again apply to its parcel o wners. However, at the time

Respondents Ð who alleged in their Amended Petition that they were Ñparcel

owners,Ò as opposed to ÑmembersÒ of an association Ð brought t his action,

they were not governed by the Declaration of Covenants and Restrictions,

and were n ot Ñobligated by the governing documents to pay an assessment or

amenity fee[]Ò because there were no valid, governing documents. Further, at

the time Respondents brought this action, Sweetwater Pointe could not

require membership as a mandatory condition of parcel ownership, and could

not impose assessments that, if unpaid, could become a lien on the parcel,

because the Declaration of Covenants and Restrictions had expired.

The undersigned, who must strictly construe section 720.305(1), concludes

that the underlying matter was not brought by a Ñmember,Ò as that term is

defined in section 720.301(1), against an Ñassociation,Ò as that term is defined

in section 720.301(9). Therefore, section 720.305(1) does not provide a basis

for Sweetwater Pointe to recove r attorneyÔs fees and costs in the underlying

matter.

Based on the foregoing, Sweetwater PointeÔs Motion for Summary Final

Order and to Tax AttorneyÔs Fees and Costs, and it s Motion to Tax AttorneyÔs

Fees and Costs, are hereby D ENIED .

D ONE A ND O RDERED th is 21st day of April , 2022 , in Tallahassee, Leon

County, Florida.

S

R OBERT J. T ELFER III

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with th e Clerk of the

Division of Administrative Hearings

this 21st day of April , 2022 .

C OPIES F URNISHED :

Frank A. Ruggieri, Esquire Jaiden Foss, Agency Clerk

The Ruggieri Law Firm, PA Department of Economic Opportunity

111 North Orange Avenue , Suite 725 107 East Madison Street , MSC 110

Orlando, Florida 32801 Tallahassee, Florida 32399

Brandon J. Stewart, Esquire Justin Clark, Esquire

Attorneys Just in Clark & Associates, PLLC Attorneys Justin Clark & Associat es, PLLC

500 Winderley Place , Suite 100 500 Winderley Place, Suite 100

Maitland, Florida 32751 Maitland, Florida 32751

Tomika Spires - Hanssen Dane Eagle, Executive Director

Sweetwater Pointe Homeowners Department of Economic Opportunity

Association, Inc. Caldwell Building

Post Office Box 636 107 East Madison Street

Inverness, Florida 34451 Tallahassee, Florida 32399 - 4128

Karen Gates, General Counsel

Department of Economic Opportunity

107 East Madison Street , MSC 110

Tallahassee, Florida 32399 - 4128

N OTICE O F R IGHT T O J UDICIAL R EVIEW

A party who is adversely affected by this Final Order is entitled to judicial

review pursuant to section 120.68, Florida Statutes. Review proceedings are

governed by the Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing the original notice of administrative appeal with the

agency clerk of the Division of Administrative Hearings within 30 days of

rendition of the order to be reviewed, and a copy of the notice, accompanied

by any filing fees prescribed by law, with the clerk of the d istrict c ourt of

a ppeal in the appellate district where the agency maintains its headquarters

or where a party resides or as otherwise provided by law.