Green v. Sun Harbor Homeowners’ Association, Inc.

Allen Green (plaintiff) owned a townhome in a community governed by the Sun Harbor Homeowners’ Association, Inc. (Sun Harbor) (defendant). Sun Harbor sued Green for breaching Sun Harbor’s Declaration of Covenants (DOC). Sun Harbor’s complaint included a claim for attorney’s fees, stating that, under the DOC, the prevailing party in a breach action was entitled to recover reasonable attorney’s fees. Green moved to strike Sun Harbor’s complaint; Green’s motion-to-strike did not include a claim for attorney’s fees. Several months later, Green’s attorney wrote to Sun Harbor stating that Green planned to claim attorney’s fees unless Sun Harbor agreed to dismiss its action. Approximately five months after Green’s letter was sent, Green filed a motion-to-dismiss based on Sun Harbor’s failure to prosecute the action. Green’s motion-to-dismiss did not include a claim for attorney’s fees. Sun Harbor ultimately agreed to dismiss the action. Two weeks after entry of the dismissal, Green filed a motion for attorney’s fees, arguing that he was entitled to fees under the DOC as the prevailing party. The trial court denied Green’s motion, holding that Green was not entitled to fees because he failed to raise a claim for attorney’s fees in his motion-to-dismiss. On appeal, the appellate court affirmed, holding that (1) Green waived his right to attorney’s fees by failing to raise the issue until after the dismissal was entered; and (2) Green’s pre-dismissal letter to Sun Harbor about attorney’s fees was insufficient to raise the issue because it was not a record filing. Green appealed to the Florida Supreme Court.