Appeals court reverses order that denied fees to two South Florida attorneys in condo association dispute

By Gabriel Neves | Feb 4, 2019

WEST PALM BEACH – Florida's Fourth District Court of Appeal recently said the Palm Beach County Circuit Court erred when it denied a petition filed by two South Florida attorneys for fees regarding a condominium association dispute.

In a Jan. 30 ruling, Judge Burton Conner reversed the lower court's decision in the lawsuit filed by Harvey Lee Davis and Eric McCabe against Kenneth Bailynson, Stephen Cohen, and the Law Offices of Stephen M. Cohen. The riling said the circuit court erred in denying Davis and McCabe the attorneys' fees, based on the section 57.105(1) of Florida's statutes.

Davis and McCabe sued Bailynson seeking an injunction against their actions in the board of a condominium complex in which they all owned units.

"In the injunction action, appellants sought an injunction to: (1) prohibit the association from spending, using, lending, committing or otherwise disposing of the proceeds of a $1.5 million loan that the association took out from a company managed and indirectly owned by Bailynson; (2) prohibit the association from making any material alterations or substantial additions to the property or common area of the condominium without proper approval; and (3) invalidate a special assessment and roll monthly assessments back to the 2014 level," court documents said.

Bailynson also sued the appellants, claiming they committed breach of fiduciary duty. At this action, he was represented by Cohen and his firm.

Bailynson's attorneys alleged that " appellants brought the injunction suit as a derivative action on behalf of the condominium association, and as the derivative plaintiffs, they 'are representatives of the Association . . . and must act in the Association’s best interest,'” the rulings said.

McCabe and Davis sent a safe harbor notice to Cohen with a motion for fees attached.

Cohen moved to strike the motion for fees and the lower agreed.

In his ruling, Conner said the lower court "erred by ignoring the application of section 57.105(3)(c) to section 57.105(1)(b)," adding that "the record establishes that appellants are entitled to a fee award."

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