Robert M. Dance v. Ray Tatum

We have for review Green v. Sun Harbor Homeowners Association, Inc., 685 So. 2d 23 (Fla. 4th DCA 1996), which certified conflict with Bruce v. Barcomb, 675 So. 2d 219 (Fla. 2d DCA 1996), on the issue of whether a defendant must raise a claim for attorney fees prior to dismissal of the plaintiffs complaint when the time period to answer the complaint has not yet matured. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. In January 1994, the respondent, Sun Harbor Homeowners Association (Sun Harbor), filed a complaint against the petitioner, Allen Green (Green), a townhome owner in the Sun Harbor community, based on Greens alleged violation of Sun Harbors Declaration of Covenants. The complaint included a prayer for attorney fees, stating that "[p]ursuant to. .. the Declaration, the prevailing party is entitled to recover its costs and such reasonable attorneys fees as may be awarded by the Court." In February, Green filed a motion to strike and dismiss the complaint, and in March, he filed a motion to compel discovery. Neither of Greens motions mentioned attorney fees. The trial court granted Greens motion to compel discovery, but the motion to strike and dismiss remained pending. In August, the trial court allowed Sun Harbors counsel to withdraw from representation, and on October 31, 1994, Greens attorney wrote to Sun Harbor, which was then unrepresented, urging that the action be dismissed and providing that Green would be seeking attorney fees and costs if he were forced to continue his defense.