CONCRETE & LUMBER ENTERPRISES CORP., ETC., APPELLANT,
v.
GUARANTY BUSINESS CREDIT CORP., APPELLEE
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C&L appeals the denial of attorney's fees after Guaranty voluntarily dismissed its collection action against C&L. The court affirms, holding that C&L failed to properly plead its entitlement to contractual attorney's fees under Florida Statute section 57.105(5) in its answer, and therefore could not raise such a claim for the first time in a post-dismissal motion.
C&L is not entitled to attorney's fees because it failed to plead its entitlement to contractual fees under section 57.105(5) in its answer. Although C&L became the prevailing party upon Guaranty's voluntary dismissal, parties cannot raise claims for attorney's fees for the first time in a post-dismissal motion.
[1] A defendant is generally considered the prevailing party when a plaintiff voluntarily dismisses an action.
[2] Attorney's fees may be awarded after a voluntary dismissal if the prevailing party has pleaded entitlement thereto.
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Join FLexlaw to unlock all legal intelligence“The general rule is that when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party.”
Establishes that C&L achieved prevailing party status upon Guaranty's voluntary dismissal
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Join FLexlaw to unlock all legal intelligenceC&L and Fairmont entered into a requirements contract containing a unilateral fee-shifting clause favoring Fairmont. After Fairmont's bankruptcy, Guar…
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FLETCHER, Judge.
Concrete & Lumber Enterprises, Corp. [C & L] seeks to reverse a final order granting them costs but denying attorney’s fees. We affirm.
C & L entered into a requirements contract with Fairmont Re-Bar Fabricators, Inc. [Fairmont]. The contract provided for the unilateral recovery of attorney’s fees by Fairmont if it was the prevailing party in any collection action. Fairmont subsequently went into bankruptcy and Guaranty Business Credit Corporation [Guaranty] took over collection of Fairmont’s accounts receivable. In so attempting, Guaranty filed a complaint against C & L for open account and account stated as to invoices connected with three ongoing construction projects. After nearly a year of pre-trial litigation and discovery, C & L filed a motion for summary judgment. Shortly thereafter, Guaranty filed a notice of voluntary dismissal with prejudice as to certain of the project invoices for which it sought payment, and without prejudice as to the remaining invoices. C & L then moved for attorney’s fees as the prevailing party, which motion was denied by the trial court.
The general rule is that when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party. Thornber v. City of Fort Walton Beach, 568 So. 2d 914, 919 (Fla.1990). Where attorneys’ fees are provided for by statute or contract, such fees are properly awarded after a voluntary dismissal, id., but only if the prevailing party has pleaded its entitlement thereto (subject to an exception inapplicable here). See Stockman v. Downs, 573 So. 2d 835 (Fla.1991). Both parties had pled their entitlement to attorney’s fees in the complaint and answer respectively but pursuant to Florida Statute section 57.105 only and not pursuant to the contract.1 The only subsections of section 57.105 which authorize the trial court to award non-contractual attorney’s fees are subsections (1) and (3), which require a finding that the suit was frivolously filed or was litigated for the purpose of unreasonable delay. The trial court made no such finding in this case.
After Guaranty voluntarily dismissed its claims, C & L moved to tax attorney’s fees and costs, for the first time raising subsection (5) of section 57.105. This subsection provides
“[i]f a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.”
§ 57.105(5), Fla. Stat. (2001). This section is not an independent fee authorization; rather it provides a means to treat contracting parties equally where one party’s fees are contractually provided. However, C & L had not alleged in its answer any reciprocal claim for contractual attorney’s fees, notwithstanding the contract’s unilateral fee provision favoring Fairmont. C & L’s post-dismissal attempt at contract fee reciprocity came too late as parties cannot raise claims for attorney’s fees for the first time in a post-dismissal motion. Stockman v. Downs2; Bowman v. Corbett, 556 So. 2d 477 (Fla. 5th DCA 1990). The trial court correctly denied C & L’s motion for attorney’s fees.
Affirmed.
GODERICH, J., concurs.
. No subsection of 57.105 was referenced in the complaint or answer. . Stockman disapproved this court's holding in Protean Investors, Inc. v. Travel Etc., Inc., 519 So. 2d 7 (Fla. 3d DCA 1987). Stockman at 838 ("We also disapprove of those district court of appeal opinions which hold that claims for attorney’s fees either pursuant to statute or contract need not be pled.").
SCHWARTZ, Chief Judge
(specially concurring).
Although I believe that Stockman v. Downs, 573 So. 2d 835 (Fla.1991), represents an unfortunate deviation from the salutary modern principle that miscues in pleading which have no practical impact upon substantive rights are not given that effect, I am compelled by Stockman and its progeny, as correctly analyzed by the court, to concur in affirmance.
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Fla. Cmty. Bank, N.A. v. RED Rd. Residential, LLC, 197 So. 3d 1112 (Fla. 3d DCA 2016)…ing party and movant seeking fees under the mortgage’s fee provision, had the, threshold burden to plead and establish that she was a party to the mortgage containing the fee provision. See Concrete & Lumber Enters. Corp. v. Guar. Bus. Credit Corp., 829 So. 2d 247 (Fla. 3d DCA 2002). Ada Rios’s status as the lawsuit’s prevailing party does not equate to Ada Rios being a mortgagor under the mortgage so as to trigger section 57.105(7)’s reciprocity provision. Only a mortgagor under the subject mortgage is due s…
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Martin Cnty. Conservation Alliance & 1000 Friends of Fla., Inc. v. Martin Cnty., 73 So. 3d 856 (Fla. 1st DCA 2011)…late attorney’s fees under section 57.105 because, although the appellant “was not victorious ... neither his action nor subsequent appeal, were totally without merit.” (Emphasis added; citing Concrete & Lumber Enters, v. Guaranty Bus. Credit Corp., 829 So. 2d 247 (Fla. 3d DCA 2002)). In De Vaux v. Westwood Baptist Church, 953 So. 2d 677, 683-685 (Fla. 1st DCA 2007), a case relied upon by the majority, we discussed the standards applicable to awarding fees under section 57.105(1). In De Vaux, we acknowledged…
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Sydney Goldfisher v. Ivax Corp., 827 So. 2d 1110 (Fla. 3d DCA 2002)…conclusion that IVAX is not entitled to section 57.105 fees. Dr. Goldfisher was not victorious, however neither his action nor subsequent appeal, were totally without merit. See Concrete & Lumber Enterprises Corp. V. Guaranty Business Credit Corp., 829 So. 2d 247 (Fla. 3d DCA 2002.) (“The only subsections of section 57.105 which authorize the trial court to award non-contractual attorney’s fees are subsections (1) and (3), which require a finding that the suit was frivolously filed or was litigated for the p…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Stockman v. Downs, 573 So. 2d 835 (Fla. 1991)
- Thornber v. City OF Fort Walton Beach, 568 So. 2d 914 (Fla. 1990)
- Protean Invs., Inc. v. Travel ETC., Inc., 519 So. 2d 7 (Fla. 3d DCA 1987)
- Bowman v. Corbett, 556 So. 2d 477 (Fla. 5th DCA 1990)