Don’t Create an Attorney’s Fees Waiver Argument
Here’s a situation you’d like to avoid because it creates an unnecessary waiver argument with respect to attorney’s fees.
In a dispute between a condominium association and unit owner, the unit owner sued his association for injunctive relief, negligence, and breach of contract. The parties entered an agreed order on the unit owner’s injunctive relief claim against the association, and identified the unit owner as the prevailing party. The parties then entered an agreed order that granted the unit owner entitlement to fees and an evidentiary was held on the fees. The trial court entered a judgment as to the attorney’s fees in favor of the unit owner. Meanwhile, the unit owner’s breach of contract claim and negligence remained pending. In other words, a judgment on fees was entered against the association even though the unit owner’s entire case against the association was not decided. See Whitehall at Bar Harbour Condominium Association, Inc. v. Raviv, 51 Fla.L.Weekly D147a (Fla. 3d DCA 2026).
Subsequently, the association moved to vacate the final judgment of attorney’s fees entered against it. The reason being because all of the unit owner’s claims against the association had not been disposed of. The trial court denied the motion and, on appeal, the appellate court had no sympathy for the association:
[The association’s] conduct throughout the proceedings presents a significant waiver issue. Agreeing to the prevailing party and entitlement to fees is not necessarily an agreement to entry of a final judgment on fees. However, [the association] fully participated in the fee proceedings without procedural objection, including participating in the five-hour evidentiary hearing and negotiating the amount of fees. It was not until the motion for rehearing that [the association] objected for the first time to entry of a final order. “By the appellant’s failure to timely object to the procedure she now contends to be irregular, she is deemed to have waived the objection by acquiescence.” Portales v. Another Beautiful Corp., 121 So. 3d 562, 563 (Fla. 3d DCA 2012).
Whitehall at Bar Harbour Condominium Association, supra.
Could this waiver issue been avoided? Of course, which is why the appellate court had no sympathy for the association. The association appealed what it agreed to and did not object to even though there were pending claims against it by the unit owner. The moral: don’t create an attorney’s fees waiver argument against you!
Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.
