SAL'S ABATEMENT CORPORATION, PETITIONER,
v.
SID HARVEY INDUSTRIES, INC., RESPONDENT
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Sal's Abatement Corporation sought attorney's fees under a contract provision entitling the 'prevailing party' to recover reasonable attorney's fees. The trial court denied the award after the opposing party took a voluntary dismissal, and the appellate court affirmed, holding that a voluntary dismissal without prejudice does not result in a judgment or its functional equivalent required to trigger the attorney's fees provision.
A purchaser cannot recover attorney's fees under a 'prevailing party' contract provision when the opposing party takes a voluntary dismissal without prejudice, because a voluntary dismissal does not result in a judgment or its functional equivalent against the defendant.
[1] A party is not entitled to attorney's fees under a contract provision awarding fees to the prevailing party when the opposing party voluntarily dismisses the action witho…
[2] A voluntary dismissal without prejudice does not constitute a judgment in favor of a party for the purpose of awarding attorney's fees.
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Join FLexlaw to unlock all legal intelligence“The prevailing party in any litigation between the parties shall be entitled to recover, as part of its judgment, reasonable attorney's fees and costs.”
The contractual provision at issue that the trial court interpreted to require a judgment or functional equivalent before attorney's fees could be awarded.
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Join FLexlaw to unlock all legal intelligenceSal's Abatement Corporation purchased real estate from Sid Harvey Industries, Inc. The contract contained a provision awarding attorney's fees and cos…
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PER CURIAM.
The petitioner purchaser of real estate seeks review of an order denying it an award of attorney’s fees under a contract provision which provides, “The prevailing party in any litigation between the parties shall be entitled to recover, as part of its judgment, reasonable attorney’s fees and costs.” (Emphasis added). The respondent seller had filed suit against buyer, but took a voluntary dismissal. Buyer’s previously-pled claim for attorney’s fees was denied, and buyer challenges that ruling here.
In denying attorney’s fees, the trial court reasoned by analogy to this court’s decision in O.A.G. Corp. v. Britamco Underwriters, Inc., 707 So. 2d 785 (Fla. 3d DCA 1998). In that case, this court held that after a voluntary dismissal by an insurance company in a declaratory judgment action, the insured could not obtain an attorney’s fee award under a statute pi’oviding that “[u]pon the rendition of a judgment or decree .by any of the courts of this state against an insurer and in favor of any named ... insured ... the trial court ... shall adjudge ... against the insurer ... a reasonable sum as fees ... for the insured’s ... attorney prosecuting the suit in which the recovery is had.” § 627.428(1), Fla. Stat. (1997); see O.A.G., 707 So. 2d at 786. This court reasoned that since there was a voluntary dismissal without prejudice, there was neither a judgment in favor of the insured nor the functional equivalent. See O.A.G., 707 So. 2d at 787. Because of the similarity of the contract language in this case and the operative statutory language in O.AG., the trial court applied O.AG. by analogy and denied attorney’s fees. We agree with Judge Levine and deny certiorari.
Certiorari denied.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Ajax Paving Indus., Inc. v. The Hardaway Co., 824 So. 2d 1026 (Fla. 2d DCA 2002)…t 1995 subcontract applicable to Ajax. It argues, however, that Ajax is not entitled to prevailing party fees because a judgment on the merits was not entered in favor of Ajax. Hardaway relies on Sal’s Abatement Corp. v. Sid Harvey Industries, Inc., 718 So. 2d 885 (Fla. 3d DCA 1998), and O.A.G. Corp. v. Britamco Undowriters, Inc., 707 So. 2d 785 (Fla. 3d DCA 1998), in support of its argument. Those cases, however, are distinguishable from the instant case. The contractual fee provision in Sal’s and the statut…
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Magdalena v. Toyota Motor Corp., 253 So. 3d 24 (Fla. 3d DCA 2017)…ther a party was entitled to an award of attorney's fees under section 627.428, Florida Statutes, which requires the "rendition of a judgment" for entitlement to attorney's fees. Additionally, in Sal's Abatement Corp. v. Sid Harvey Industries, Inc., 718 So. 2d 885 (Fla. 3d DCA 1998), and O.A.G. Corp. v. Britamco Underwriters, Inc., 707 So. 2d 785, 786 n.1 (Fla. 3d DCA 1998), abrogated on other grounds by Caufield v. Cantele, 837 So. 2d 371 (Fla. 2002), this Court held that a voluntary dismissal is not an adju…
Authorities Cited
- O.A.G. Corp. v. Britamco Underwriters, Inc., 707 So. 2d 785 (Fla. 3d DCA 1998)