KENNETH R. HATCH, APPELLANT,
v.
JOHN F. DANCE, APPELLEE
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A voluntary dismissal of a lawsuit does not preclude a defendant from recovering attorney's fees if the parties' agreement or a statute provides for fees to the prevailing party.
The parties had an agreement for property transfer that included a clause for attorney's fees in any resulting litigation. The plaintiff sued but then…
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PER CURIAM.
Defendant appeals the trial court’s refusal to award attorney’s fees. We reverse.
The parties entered into an agreement concerning the transfer of certain property. The agreement contained a clause which provided that, in the event any litigation should result from the transfer, the successful party would be entitled to attorney’s fees.
Plaintiff did m fact sue defendant in connection with the transfer, but then voluntarily dismissed the complaint after limited pre-trial activity. Defendant then moved for attorney’s fees pursuant to the agreement. The trial court denied the motion.
Preliminarily, we find incorrect plaintiffs contention that this court does not have jurisdiction over this appeal. An appellate 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 is well-established that statutory or contractual provisions providing for an award of attorney’s fees to the prevailing party in a litigation encompass defendants in suits which have been voluntarily dismissed. See Galbraith v. Inglese, 402 So. 2d 574 (Fla. 4th DCA 1981); Dolphin Towers Condominium Association v. Del Bene, 388 So. 2d 1268 (Fla. 2d DCA 1980).
Therefore, we reverse and remand with instructions that appellant be awarded attorney’s fees as provided by the parties’ agreement.
DOWNEY, HURLEY and DELL, 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)…So. 2d 1268 (Fla. 2d DCA 1980). Next, we hold that after 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 t…
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Alhambra Homeowners Ass'n, Inc. v. Adnan Asad, 943 So. 2d 316 (Fla. 4th DCA 2006)…torney’s fees to the “prevailing party” in litigation. See Griffin v. Berkley S. Condo. Ass’n, 661 So. 2d 135 (Fla. 4th DCA 1995) (applying prevailing party provision in condominium statute, section 718.303, Florida Statutes (1993)); Hatch v. Dance, 464 So. 2d 713, 714 (Fla. 4th DCA 1985) (in a case where plaintiff voluntarily dismissed “after limited pre-trial activity,” court held that “it is well-established that statutory or contractual provisions providing for an award of attorney’s fees to the prevailin…
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Vidibor v. Adams, 509 So. 2d 973 (Fla. 5th DCA 1987)…ent Corp. of Martin County, 493 So. 2d 1136 (Fla. 4th DCA 1986); Dolphin Towers Condo. Assoc. v. Del Bene, 388 So. 2d 1268 (Fla. 2d DCA 1980); Gordon v. Warren Heating & Air Conditioning, Inc., 340 So. 2d 1234 (Fla. 4th DCA 1976). . Hatch v. Dance, 464 So. 2d 713 (Fla. 4th DCA 1985); Gordon v. Warren Heating & Air Conditioning, Inc., 340 So. 2d 1234 (Fla. 4th DCA 1976); cf. Dolphin Tower Condo Ass’n, Inc. v. Del Bene, 388 So. 2d 1268 (Fla. 2d DCA 1980).…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Allie William Campbell v. Maze, 339 So. 2d 202 (Fla. 1976)
- Galbraith v. Inglese, 402 So. 2d 574 (Fla. 4th DCA 1981)
- Dolphin Towers Condo. Ass'n, Inc. v. DEL Bene, 388 So. 2d 1268 (Fla. 2d DCA 1980)
- J.J. Wiggins v. Wiggins, 446 So. 2d 1078 (Fla. 1984)
- Reineke v. McKINSTRY, 445 So. 2d 361 (Fla. 4th DCA 1984)