BOCA AIRPORT, INC., D/B/A BOCA AVIATION, APPELLANT,
v.
ROLL-N-ROASTER OF BOCA, INC., APPELLEE
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The Fourth District Court of Appeal affirmed an award of prevailing party attorney's fees to a defendant after the plaintiff voluntarily dismissed the case, clarifying that a voluntary dismissal automatically makes the opposing defendant the prevailing party for purposes of attorney's fees without requiring proof the defendant would have prevailed on the merits.
A voluntary dismissal by a plaintiff automatically makes the opposing defendant the prevailing party for purposes of attorney's fees statutes, without requiring proof that the defendant would have won on the merits. The court rejected the Englander test requiring such proof.
[1] A defendant is entitled to recover attorney's fees under a statute awarding fees to the prevailing party when the plaintiff takes a voluntary dismissal without prejudice,…
[2] When a plaintiff voluntarily dismisses an action, the defendant is generally considered the "prevailing party" for the purposes of statutory or contractual provisions awa…
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Join FLexlaw to unlock all legal intelligence“In general, when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party.”
Establishes the core rule that voluntary dismissal makes defendant the prevailing party for attorney's fees purposes
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Join FLexlaw to unlock all legal intelligenceBoca Airport, Inc. filed an action against Roll-N-Roaster of Boca, Inc. The plaintiff subsequently took a voluntary dismissal of the case. The defenda…
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FARMER, Judge.
In affirming the award of prevailing party attorney’s fees, after a voluntary dismissal, in favor of defendant, we write only to make clear the current state of the law on the subject.
In Stuart Plaza, Ltd. v. Atlantic Coast Dev. Corp. of Martin County, 493 So. 2d 1136 (Fla. 4th DCA 1986) and Gordon v. Warren Heating & Air Conditioning, Inc., 340 So. 2d 1234 (Fla. 4th DCA 1976), we held that “when a plaintiff takes a voluntary dismissal the defendant is the prevailing party.” In Goldstein v. Richter, 538 So. 2d 473 (Fla. 4th DCA 1989), however, we followed the decision of the Third District in Englander v. St. Francis Hospital, Inc., 506 So. 2d 423 (Fla. 3d DCA 1987), to determine whether a defendant was a prevailing party for purposes of prevailing party attorney’s fees after a voluntary dismissal. The Englander test involves an analysis as to whether the defendant has conclusively shown that he would not have been found liable on plaintiffs dismissed claim had the case been actually determined on its merits.
In Thomber v. City of Ft. Walton Beach, 568 So. 2d 914 (Fla.1990), the supreme court held:
“In general, when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party. Stuart Plaza, Ltd. v. Atlantic Coast Development Corp., 493 So. 2d 1136 (Fla. 4th DCA 1986). A determination on the merits is not a prerequisite to an award of attorney’s fees where the statute provides that they will inure to the prevailing party. Metropolitan Dade County v. Evans, 474 So. 2d 392 (Fla. 3d DCA 1985); State Department of Health & Rehabilitative Services v. Hall, 409 So. 2d 193 (Fla. 3d DCA 1982). There must be some end to the litigation on the merits so that the court can determine whether the party requesting fees has prevailed. Simmons v. Schimmel, 476 So. 2d 1342 (Fla. 3d DCA 1985), review denied, 486 So. 2d 597 (Fla.1986).”
568 So. 2d at 919. Under this holding, for purposes of a prevailing party attorney’s fees statute, a voluntary dismissal by the claimant makes the opposing party a “prevailing party” as to the issue of entitlement to fees. We apparently followed this logic in Griffin v. Berkley South Condo. Ass’n, 661 So. 2d 135 (Fla. 4th DCA 1995), citing Stuart Plaza, but not mentioning Goldstein.
It is clear since Thomber that Stuart Plaza and Gordon state the correct rule and that Goldstein has been tacitly disapproved by the supreme court. In affirming the award in this case, we are obliged to follow Thomber, Stuart Plaza and Gordon.
AFFIRMED.
GUNTHER, C.J., and POLEN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Walter D. Padow, M.D., P.A. v. Knollwood Club Ass'n, Inc., 839 So. 2d 744 (Fla. 4th DCA 2003)…ents prior to the voluntary dismissal. Padow relies on Oakwood Plaza, L.P. v. D.O.C. Optics Corp., 708 So. 2d 959 (Fla. 4th DCA 1998), abrogated on other grounds by Caufield, 837 So. 2d at 373-74; Boca Airport, Inc. v. Roll-N-Roaster of Boca, Inc., 690 So. 2d 640 (Fla. 4th DCA 1997), and Griffin v. Berkley South Condominium Ass’n, 661 So. 2d 135 (Fla. 4th DCA 1995). However, in none of these cases did the plaintiffs voluntary dismissal follow the defendant’s payment of substantially all of the plaintiffs cla…
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Alhambra Homeowners Ass'n, Inc. v. Adnan Asad, 943 So. 2d 316 (Fla. 4th DCA 2006)…en voluntarily dismissed”); Stuart Plaza, Ltd. v. Atl. Coast Dev. Corp. of Martin County, 493 So. 2d 1136, 1137 (Fla. 4th DCA 1986) (involving prevailing party attorney’s fee provision in a lease); Boca Airport, Inc. v. Roll-N-Roaster of Boca, Inc., 690 So. 2d 640, 641 (Fla. 4th DCA 1997) (applying attorney’s fee provision of mechanics’ lien statute and recognizing that Stuart Plaza “stated the correct rule”); Lion Oil Co. v. Tamarac Lakes, Inc., 232 So. 2d 20 (Fla. 4th DCA 1970) (applying mechanic’s lien sta…
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Dale R. Landry and wife v. Countrywide Home Loans, Inc., 731 So. 2d 137 (Fla. 1st DCA 1999)…e such award is provided for by statute or agreement of the parties.” See Century Construction Corp. v. Koss, 559 So. 2d 611, 612 (Fla. 1st DCA), revieio denied, 574 So. 2d 141 (Fla.1990). See also Boca Airport, Inc. v. Roll-N-Roaster of Boca, Inc., 690 So. 2d 640, 641 (Fla. 4th DCA), revieiv dism’d, 698 So. 2d 543 (Fla.1997)(“for purposes of a prevailing party attorney’s fees statute, a voluntary dis [*140] missal by the claimant makes the opposing party a ‘prevailing party’ as to the issue of entitlement to…
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 (12 total)
- Thornber v. City OF Fort Walton Beach, 568 So. 2d 914 (Fla. 1990)
- Stuart Plaza, Ltd. v. Atl. Coast Dev. Corp. OF Martin Cnty., 493 So. 2d 1136 (Fla. 4th DCA 1986)
- Simmons v. Lawrence Schimmel, M.D., 476 So. 2d 1342 (Fla. 3d DCA 1985)
- Gordon v. Warren Heating & AIR Conditioning, Inc., 340 So. 2d 1234 (Fla. 4th DCA 1976)
- Press v. Press, 340 So. 2d 1234 (Fla. 4th DCA 1976)
- Englander v. ST. Francis Hosp., Inc., 506 So. 2d 423 (Fla. 3d DCA 1987)
- State v. Hall, 409 So. 2d 193 (Fla. 3d DCA 1982)
- Brown v. State, 409 So. 2d 193 (Fla. 3d DCA 1982)
- Metro. Dade Cnty. v. Evans, 474 So. 2d 392 (Fla. 3d DCA 1985)
- Moses v. State, 538 So. 2d 473 (Fla. 5th DCA 1989)