HEATHER SHEPHEARD, APPELLANT,
v.
DEUTSCHE BANK TRUST COMPANY AMERICAS, F/K/A BANKERS TRUST COMPANY, AS TRUSTEE, APPELLEE
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In this second appeal of a foreclosure proceeding, the Fifth District Court of Appeal reversed the trial court's deferral of attorney's fees to the prevailing party (Shepheard) following the bank's voluntary dismissal under Rule 1.420(a). The court held that a party cannot strategically dismiss to prevent the other party from being designated prevailing party and that reasonable attorney's fees must be assessed immediately upon dismissal.
The trial court was without authority to defer assessment of costs under Rule 1.420(d), and a party cannot strategically dismiss to prevent another party from being determined the prevailing party. The court reversed and remanded for immediate determination and assessment of reasonable attorney's fees in Shepheard's favor, though if Deutsche Bank ultimately prevails in the refiled action, it may recoup the costs it paid for its voluntary dismissal.
[1] A trial court cannot defer the assessment of costs under Florida Rule of Civil Procedure 1.420(d).
[2] A party who voluntarily dismisses an action cannot prevent the opposing party from being determined the prevailing party.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“we reverse the trial court's order denying Appellant attorney's fees and remand for the trial court to assess a reasonable attorney's fee for the trial court proceeding and the earlier appeal”
The court's holding regarding the necessity of assessing fees immediately upon dismissal rather than deferring until final judgment on the merits.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceShepheard won the first appeal when this court reversed a final judgment against her due to non-service. Upon remand, Deutsche Bank filed a new forecl…
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This is the second appeal in this foreclosure proceeding. In the parties’ earlier appeal, Shepheard v. Deutsche Bank Trust Co. Americas, 922 So.2d 340 (Fla. 5th DCA 2006), this court reversed a final judgment in the bank’s favor as to Appellant due to non-service. Upon remand, Appellee filed a new foreclosure action against Appellant, who sought dismissal because the initial foreclosure case remained pending. Consequently, pursuant to Florida Rule of Civil Procedure 1.420(a), Deutsche Bank dismissed Appellant as a party and pursued the refiled foreclosure action.
Appellant moved for an award of prevailing party attorney’s fees and costs and to stay the second foreclosure proceedings pursuant to Florida Rule of Civil Procedure 1.420(d). She sought attorney’s fees for the trial court and appellate proceedings because this court granted her motion for attorney’s fees in the first appeal. After a hearing, the trial court denied Appellant’s motion for attorney’s fees until it rendered a determination on the merits, but awarded her costs and stayed the proceeding pending payment. Because the trial court was without authority to defer the assessment of costs1 under rule 1.420(d), we reverse the trial court’s order and remand for the determination and assessment of reasonable attorney’s fees in favor of Appellant. See Wilson v. Rose Printing Co., Inc., 624 So.2d 257, 258 (Fla.1993).
We have rejected the view that a party taking a voluntary dismissal can do so for strategic reasons and thereby prevent the other party from being determined the “prevailing party.” Vidibor v. Adams, 509 So.2d 973, 974 (Fla. 5th DCA 1987). If, however, Appellee ultimately prevails in the refiled action, then it may recoup from Appellant the costs it paid for its voluntary dismissal. See Muniz v. Samero, 534 So.2d 848, 849 (Fla. 5th DCA 1988).
Accordingly, we reverse the trial court’s order denying Appellant attorney’s fees and remand for the trial court to assess a reasonable attorney’s fee for the trial court proceeding and the earlier appeal.
REVERSED and REMANDED.
GRIFFIN and ORFINGER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Vives v. Wells Fargo Bank, N.A., 128 So. 3d 9 (Fla. 3d DCA 2012)…of the Florida Statutes affords attorney fees in a mortgage foreclosure action on the strength of a unilateral fee provision in a promissory note. See United States v. Wonders, 86 So. 3d 544 (Fla. 2d DCA 2012); Shepheard v. Deutsche Bank Trust Co., 38 So. 3d 825 (Fla. 5th DCA 2010); Landry v. Countrywide Home Loans, Inc., 731 So. 2d 137 (Fla. 1st DCA 1999). However, these cases are bereft of analysis and in one case, United States v. Wonders, dicta. Moreover, the above cases do not consider the unique chara…
Authorities Cited
- Wilson v. Rose Printing Co., Inc., 624 So. 2d 257 (Fla. 1993)
- Nigel Shepheard and Heather Shepheard v. Deutsche Bank Tr. Co. Americas, 922 So. 2d 340 (Fla. 5th DCA 2006)
- Vidibor v. Adams, 509 So. 2d 973 (Fla. 5th DCA 1987)
- Muniz v. Samero, 534 So. 2d 848 (Fla. 5th DCA 1988)