Recently, the Florida Fourth District Court of Appeal reversed a trial court decision that denied attorney’s fees for a condominium association after it was successful in getting a suit against it dismissed. In Point East Four Condo. Corp., Inc. v. Zevuloni & Assoc., Inc., No. 4D09-3221, 2010 WL 4962853 (Fla. 4th DCA Dec. 8, 2010), a condominium association signed a contract with a public adjuster to handle its claim under an insurance policy. The contract provided that 10% of the amount recovered would be payable to the public adjuster. The contract also provided that the prevailing party in “any action” would be entitled to attorney’s fees, payable by the losing party.
Before the public adjuster recovered any money for the condominium association, the public adjuster sued the association for his fee. The trial court dismissed the lawsuit because it failed to properly allege breach of contract. The lawsuit was dismissed without prejudice, which would allow the public adjuster to re-file the lawsuit at a later time if its fee became due and the association refused to pay.
Pursuant to the attorney’s fee provision in the public adjusting contract, the association moved for attorney’s fees for prevailing in the lawsuit. The trial court declined to award attorney’s fees on the grounds that neither party was the prevailing party. The appellate court reviewed the case and held that, “[w]hen one party loses in an action for breach of contract, the adverse party is the prevailing party.” The court also held that the lawsuit filed by the public adjuster amounted to “any action” as was used in the contract, and therefore the trial court had no choice but to award attorney’s fees for the association.
The district court’s decision was short and to the point, but it illustrates important points for both condominium associations and public adjusters: condominium associations should read their public adjusting contracts carefully to know what they are entitled to under the contract, and public adjusters should avoid suing for their fees before they become due.
