MARCIO SOPENA, APPELLANT,
v.
ROWLAND COFFEE ROASTERS, INC., AND Q & P COFFEE, INC., A FLORIDA CORPORATION, APPELLEES
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Marcio Sopeña appeals an order denying his motion for attorney's fees and costs following Rowland Coffee Roasters' voluntary dismissal of an employment contract dispute. The court holds that Sopeña, as the prevailing party, is entitled to attorney's fees under the employment contract, and that Rowland waived any objection to the failure to plead the claim.
Sopeña is entitled to attorney's fees and costs as the prevailing party under the employment contract. Rowland waived any objection to the failure to plead attorney's fees by recognizing or acquiescing to the claim and failing to object. The voluntary dismissal did not bar Sopeña's recovery because Sopeña was the prevailing party and the dismissal was related to the merits of the case.
[1] An order denying or awarding attorney's fees and costs after a voluntary dismissal is properly reviewed by petition for writ of certiorari.
[2] A party may waive an objection to a claim for attorney's fees if the opposing party recognized or acquiesced to the claim, or otherwise failed to object to the failure to…
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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 general rule regarding prevailing party status in voluntary dismissals
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Join FLexlaw to unlock all legal intelligenceSopeña brought an action against Rowland Coffee Roasters and Q & P Coffee, Inc. Rowland voluntarily dismissed the case. The record showed that none of…
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PER CURIAM.
Marcio Sopeña (“Sopeña”) appeals an order denying Sopena’s motion for attorney’s fees and costs following a voluntary dismissal by Rowland Coffee Roasters (“Rowland”).
Initially, we note that an order denying or awarding attorney’s fees and costs after a voluntary dismissal is properly reviewed by petition for writ of certiorari. See Chatlos v. City of Hallandale, 220 So. 2d 353, 354 (Fla.1968); O.A.G. Corp. v. Britamco Underwriters, Inc., 707 So. 2d 785, 786 (Fla. 3d DCA 1998). We therefore treat this appeal as a petition for writ of certiorari, grant the petition, and quash the order of the trial court.
Rowland first argues that Sopeña lost the right to attorney’s fees by virtue of his failure to plead same. We disagree. The exception noted in Stockman v. Downs, 573 So. 2d 835, 838 (Fla.1991), is applicable in this case, as Rowland by its conduct recognized or acquiesced to that claim, or otherwise failed to object to the failure to plead entitlement, and thus waived any objection to the failure to plead a claim for attorney’s fees. Id.; see also, Laguna Palms Properties, Ltd. v. Long, 622 So. 2d 556, 557 (Fla. 3d DCA 1993).
Moreover, Sopeña is entitled to attorney’s fees as the prevailing party under the employment contract. “In general, when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party.” Thornber v. City of Ft. Walton Beach, 568 So. 2d 914, 919 (Fla.1990); see also, Stuart Plaza, Ltd. v. Atlantic Coast Development Corp., 493 So. 2d 1136, 1137 (Fla. 4th DCA 1986); McKelvey v. Kismet, Inc., 430 So. 2d 919, 922 (Fla. 3d DCA 1983).
The litigation had concluded in this case, and Sopeña was the prevailing party. The dismissal by Rowland was not a strategic determination. See Wilson v. Rose Printing Co., 624 So. 2d 257, 258 (Fla.1993); Simmons v. Schimmel, 476 So. 2d 1342, 1345 (Fla. 3d DCA 1985).
It is apparent from the record that it was related to the merits of the case, as none of the witnesses listed by Rowland displayed any knowledge of any of the allegations of the complaint in their depositions.
Accordingly, we hold that Sopeña was the prevailing party after the voluntary dismissal by Rowland. We therefore grant the petition for writ of certiorari, quash the or der of the trial court, and remand for further proceedings.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Green Tree Vendor Servs. Corp. v. Lisi, 732 So. 2d 422 (Fla. 1st DCA 1999)…following a voluntary dismissal of the case without prejudice, as a petition for writ of certiorari to review a non-final order. See Rose Printing Co., Inc. v. Wilson, 602 So. 2d 600, 601 (Fla. 1st DCA 1992); Sopena v. Rowland Coffee Roasters, Inc., 716 So. 2d 799, 800 (Fla. 3d DCA 1998). We nevertheless dismiss the [*423] petition for lack of jurisdiction, because the motion for rehearing directed to the order under review did not toll the time for filing the petition, and the petition was not filed within t…
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Rosa M. Roldan & Edwin Castro v. Citibank, N.A., 149 So. 3d 711 (Fla. 3d DCA 2014)…PER CURIAM. Affirmed. Sopena v. Rowland Coffee Roasters, Inc., 716 So. 2d 799, 800 (Fla. 3d DCA 1998); Englander v. St. Francis Hosp., Inc., 506 So. 2d 423, 424 (Fla. 3d DCA 1987) (en banc); Simmons v. Schimmel, 476 So. 2d 1342, 1346 (Fla. 3d DCA 1985).…
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Aderwel Holdings, Ltd. v. Aqua Trees, LLC (Fla. 3d DCA 2026)…outcomes—not just procedural maneuvers—in determining the issue of which party has prevailed in an action.") (citing Padow, M.D., P.A. v. Knollwood Club Ass’n, Inc., 839 So. 2d 744, 746 (Fla. 4th DCA 2003)); Sopena v. Rowland Coffee Roasters, Inc., 716 So. 2d 799, 800–01 (Fla. 3d DCA 1998) (holding that the defendant was the prevailing party after the plaintiff's voluntary dismissal). Reversed and remanded.…
Authorities Cited
- Stockman v. Downs, 573 So. 2d 835 (Fla. 1991)
- Thornber v. City OF Fort Walton Beach, 568 So. 2d 914 (Fla. 1990)
- Wilson v. Rose Printing Co., Inc., 624 So. 2d 257 (Fla. 1993)
- 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)
- State v. Sagre, 430 So. 2d 919 (Fla. 3d DCA 1983)
- Chatlos v. City OF Hallandale, 220 So. 2d 353 (Fla. 1968)
- O.A.G. Corp. v. Britamco Underwriters, Inc., 707 So. 2d 785 (Fla. 3d DCA 1998)
- Laguna Palms Props. Ltd. v. Jolene Long, 622 So. 2d 556 (Fla. 3d DCA 1993)