DOWNEY v. SURF CLUB APARTMENTS INC (1997)

After The Surf Club Apartments, Inc. [Surf Club] filed its complaint, John E. Downey filed a counterclaim seeking, inter alia, attorney's fees if he prevailed.   Surf Club then amended its complaint to include a claim for attorney's fees if it prevailed.   However, neither party was entitled to attorney's fees as fees were not authorized by statute, provided for by contract, or awardable for services performed by an attorney in creating or bringing into court a fund or other property.  Leitman v. Boone, 439 So.2d 318 (Fla. 3d DCA 1983).   Nevertheless, the trial court awarded attorney's fees to Surf Club, the prevailing party, on the basis that Downey, because he sought attorney's fees, was estopped from denying that Surf Club was entitled to attorney's fees.   In Leitman, we rejected estoppel as the basis for an award of attorney's fees, with a thorough analysis thereof, including a dissenting opinion that, had it been the majority opinion, would possibly have required us to affirm the fee award to Surf Club.  Id. at 322.   As it was not the majority opinion, however, no matter how masterfully persuasive it might appear to be, we must, and do, reverse the order awarding attorney's fees to Surf Club.

Reversed.

PER CURIAM.