CHARLES REINEKE, APPELLANT,
v.
JOHN E. MCKINSTRY AND CYNTHIA JOAN MCKINSTRY, APPELLEES
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Reineke appealed the award of attorney's fees to the McKinstrys following his voluntary dismissal of a mechanic's lien foreclosure action. The court affirmed the attorney's fee award, holding that fees may be recovered after voluntary dismissal when authorized by statute or contract.
Attorney's fees may be recovered following voluntary dismissal in those cases where such fees are authorized by statute or by agreement of the parties. Section 713.29, Florida Statutes provides statutory authorization for such an award in this mechanic's lien case.
[1] Attorney's fees may be recovered following a voluntary dismissal when authorized by statute or by agreement of the parties.
[2] A statute providing for attorney's fees in a mechanic's lien foreclosure action permits recovery of such fees even after a voluntary dismissal.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It has long been the law of Florida that except where attorney's fees may be allowed in equity from a specific fund or property which may be lawfully charged with their payment, attorney's fees may not be recovered except when specifically authorized by statute or by agreement of the parties.”
Establishes the foundational rule that attorney's fees are recoverable only when authorized by statute or agreement
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Join FLexlaw to unlock all legal intelligenceReineke brought an action to foreclose on a mechanic's lien against the McKinstrys. Reineke subsequently entered a voluntary dismissal of the action. …
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PER CURIAM.
This was an action to foreclose on a mechanic’s lien. Appellant entered a vol untary dismissal. Thereafter, attorney’s fees were awarded to appellee under the provisions of Section 713.29, Florida Statutes (1975). Appellant appeals relying upon Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So. 2d 68 (Fla.1978).
We affirm upon authority of Gordon v. Warren Heating & Air Conditioning, Inc., 340 So. 2d 1234 (Fla. 4th DCA 1976); Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So. 2d 769 (Fla. 3d DCA 1975); Jackson v. Hatch, 288 So. 2d 564 (Fla. 2d DCA 1974); Lion Oil Co. v. Tamarac Lakes, Inc., 232 So. 2d 20 (Fla. 4th DCA 1970). See also In re Estate of Lewis, 442 So. 2d 290, (Fla. 4th DCA 1983); McKelvey v. Kismet, Inc., 430 So. 2d 919 (Fla. 3d DCA 1983); State, Department of Health and Rehabilitative Services v. Hall, 409 So. 2d 193 (Fla. 3d DCA 1982); Knott v. Knott, 395 So. 2d 1196 (Fla. 3d DCA 1981); Dolphin Towers Condominium Association v. Del Bene, 388 So. 2d 1268 (Fla. 2d DCA 1980); MacBain v. Bowling, 374 So. 2d 75 (Fla.3d DCA 1979).
We distinguish Randle-Eastern Ambulance Service, Inc. v. Vasta, supra. While its peripheral sentiments would seem at first blush to militate against an award of attorney’s fees following voluntary dismissal, a closer analysis reveals that this is not true as concerns cases where a statute or contract provides for such an award. The cause of action in Randle-Eastern was for wrongful death and there was no statute or mentioned contract mandating attorney’s fees. In the instant case there is such a statute, Section 713.29, Florida Statutes (1975).
We are of the opinion that Randle-East-ern must be read in light of and in reconciliation with Campbell v. Maze, 339 So. 2d 202, 203 (Fla.1976), where the Supreme Court specifically held in the case of a voluntary dismissal of a personal injury action:
“It has long been the law of Florida that except where attorney’s fees may be allowed in equity from a specific fund or property which may be lawfully charged with their payment, attorney’s fees may not be recovered except when specifically authorized by statute or by agreement of the parties....” (Emphasis added) (citations omitted.)
See also, In re Estate of Lewis, 442 So. 2d 290 (Fla. 4th DCA 1983), Order on Rehearing filed January 11, 1984.
We hold that attorney’s fees may be recovered following voluntary dismissal in those cases where such fees are authorized by statute or by agreement of the parties.
AFFIRMED.
ANSTEAD, C.J., and GLICKSTEIN and WALDEN, JJ., concur.
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Stuart Plaza, Ltd. v. Atl. Coast Dev. Corp. OF Martin Cnty., 493 So. 2d 1136 (Fla. 4th DCA 1986)…a voluntary dismissal by plaintiff the trial court does have jurisdiction to award attorney’s fees where the fees are authorized by statute or a contract between the parties. Hatch v. Dance, 464 So. 2d 713 (Fla. 4th DCA 1985); Reineke v. McKinstry, 445 So. 2d 361 (Fla. 4th DCA 1984); Giachetti v. Johnson, 308 So. 2d 143 (Fla. 2d DCA 1975). Accordingly, the order appealed from is reversed and the cause is remanded to the trial court with directions to determine reasonable attorney’s fees to be awarded to ap…
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Century Constr. Corp. v. Koss, 559 So. 2d 611 (Fla. 1st DCA 1990)…le 1.420(d) refers only to “costs”); Hatch v. Dance, 464 So. 2d 713 (Fla. 4th DCA 1985) (statutory or contractual provisions for award of attorney’s fees to prevailing party encompass defendants in suits voluntarily dismissed); Reineke v. McKinstry, 445 So. 2d 361 (Fla. 4th DCA 1984) (attorney’s fees recoverable following voluntary dismissal where authorized by statute or contract); Wiggins v. Wiggins, 446 So. 2d 1078 (Fla.1984) (where dissolution of marriage action is voluntarily dismissed by petitioner, tri…
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Hatch v. Dance, 464 So. 2d 713 (Fla. 4th DCA 1985)…llate court has the authority to award attorney’s fees following a voluntary dismissal in those cases where such fees are authorized either by statute or by agreement of the parties. Campbell v. Maze, 339 So. 2d 202 (Fla.1976); Reineke v. McKinstry, 445 So. 2d 361 (Fla. 4th DCA 1984). See also, Wiggins v. Wiggins, 446 So. 2d 1078 (Fla.1984). The trial court refused to award attorney’s fees on the grounds that the voluntary dismissal precluded the possibility of there being any successful party. However, it i…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (15 total)
- Randle-Eastern Ambulance Serv., Inc. v. Vasta, 360 So. 2d 68 (Fla. 1978)
- Kessler v. Medow, 374 So. 2d 75 (Fla. 3d DCA 1979)
- Ronald Jackson and Joanne v. Jackson, 288 So. 2d 564 (Fla. 2d DCA 1974)
- State v. Sagre, 430 So. 2d 919 (Fla. 3d DCA 1983)
- Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So. 2d 769 (Fla. 3d DCA 1975)
- Allie William Campbell v. Maze, 339 So. 2d 202 (Fla. 1976)
- Gordon v. Warren Heating & AIR Conditioning, Inc., 340 So. 2d 1234 (Fla. 4th DCA 1976)
- Dolphin Towers Condo. Ass'n, Inc. v. DEL Bene, 388 So. 2d 1268 (Fla. 2d DCA 1980)
- Knott v. Knott, 395 So. 2d 1196 (Fla. 3d DCA 1981)
- Press v. Press, 340 So. 2d 1234 (Fla. 4th DCA 1976)