BARRY YAMPOL, APPELLANT,
v.
SCHINDLER ELEVATOR CORPORATION, ET AL., APPELLEES
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The Third District Court of Appeal affirmed the trial court's award of attorney's fees to defendants as prevailing parties following the plaintiff's voluntary dismissal without prejudice. The court held that under Florida law, a defendant becomes the prevailing party entitled to attorney's fees when a plaintiff voluntarily dismisses an action, regardless of whether the dismissal is with or without prejudice.
The court held that defendants are prevailing parties entitled to attorney's fees when a plaintiff voluntarily dismisses an action, as established by the general rule in Thornber v. City of Fort Walton Beach. This rule applies regardless of whether the dismissal is with or without prejudice, and no exceptional circumstances existed in this case to overcome the general rule.
[1] When a plaintiff voluntarily dismisses an action, the defendant is generally considered the prevailing party for the purpose of awarding attorney's fees.
[2] The general rule that a defendant is the prevailing party upon a plaintiff's voluntary dismissal applies even when the dismissal is without prejudice.
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Establishes the general rule from Thornber that defendants become prevailing parties entitled to attorney's fees upon voluntary dismissal
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Join FLexlaw to unlock all legal intelligenceBarry Yampol filed an action against Schindler Elevator Corporation and other defendants under section 718.308(1), Florida Statutes, which governs con…
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We affirm the trial court’s final judgment awarding attorney’s fees to appellees as “prevailing parties” pursuant to section 718.308(1),1 Florida Statutes (2008), follow*617ing appellant’s voluntary dismissal without prejudice. The trial court properly followed Thornber v. City of Fort Walton Beach, 568 So.2d 914 (Fla.1990), which established, as a general rule, that “when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party.” id. at 919 (citing Stuart Plaza, Ltd. v. Atlantic Coast Dev. Corp., 493 So.2d 1136 (Fla. 4th DCA 1986)).
In announcing the general rule,.the Thomber Court did not exempt from its scope voluntary dismissals without prejudice. The general rule of Thomber has properly been applied to confer prevailing party status where the voluntary dismissal was without prejudice, even if the plaintiff later refiles the same suit. See, e.g., State ex rel. Marsh v. Doran, 958 So.2d 1082 (Fla. 1st DCA 2007); Alhambra Homeowners Ass’n v. Asad, 943 So.2d 316 (Fla. 4th DCA 2006). There are undoubtedly cases in which the general rule may be inapplicable to a particular set of circumstances, and one might logically argue those circumstances are more likely to be found where the voluntary dismissal was without prejudice rather than with prejudice. However, there is nothing in the record below to support the position, urged by appellant, that the general rule of Thomber was inapplicable to the particular circumstances of the instant case. To the contrary, the facts of the instant case are, in relevant respect, nearly .identical to those in Asad, in which the Fourth District held that a voluntary dismissal without prejudice “[i]n the face of a likely adverse ruling on [defendants’] motion for summary judgment” conferred prevailing party status upon defendants in the context of a similar statutory prevailing party fee provision. Asad, 943 So.2d at 319.
Moreover, although appellant urges us to reverse and remand because the trial court failed to conduct an evidentiary hearing before ruling, appellant took a contrary position in the trial court, urging the trial court that such a hearing was not necessary. A party cannot invite certain action by the trial court only to assert on appeal that the trial court’s action was erroneous. Gupton v. Village Key & Saw Shop, Inc., 656 So.2d 475 (Fla.1995); Pope v. State, 441 So.2d 1073 (Fla.1983). “One who has contributed to alleged error will not be heard to complain on appeal.” Behar v. Southeast Banks Trust Co., N.A., 374 So.2d 572, 575 (Fla. 3d DCA 1979). In doing so, appellant has waived this issue on appeal and we therefore do not reach the merits of that claim.
Affirmed.
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Mack v. Universal Prop. & Cas. Ins. Co., 321 So. 3d 901 (Fla. 2d DCA 2021)…Appellants are the prevailing parties for purposes of attorney's fees because UPCIC voluntarily dismissed the action and, before the voluntary dismissal, the arbitrator had rendered a decision in their favor. See Yampol v. Schindler Elevator Corp., 186 So. 3d 616, 616– 17 (Fla. 3d DCA 2016). Thus, the Appellants would be entitled to attorney's fees if UPCIC brought an action against them for "failure to comply with" the provisions of the Condominium Act. See § 718.303(1). UPCIC's amended complaint alleged…
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Valencia Golf & Country Club Homeowners' Ass'n, Inc. v. Cmty. Res. Servs., Inc., 272 So. 3d 850 (Fla. 2d DCA 2019)
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Jockey Club III Ass'n, Inc. v. Jockey Club Maint. Ass'n, Inc., 306 So. 3d 185 (Fla. 3d DCA 2020)…nting summary judgment on that basis. We decline to entertain this argument because “[a] party cannot invite certain action by the trial court only to assert on appeal that the trial court’s action was erroneous.” Yampol v. Schindler Elevator Corp., 186 So. 3d 616, 617 (Fla. 3d DCA 2016) (citing 7 This determination on standing has not been challenged on appeal. Gupton v. Village Key & Saw Shop, Inc., 656 So. 2d 475 (Fla.1995); Pope v. State, 441 So. 2d 1073 (Fla.1983)). Simply put, at the time the trial…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pope v. State, 441 So. 2d 1073 (Fla. 1983)
- Thornber v. City OF Fort Walton Beach, 568 So. 2d 914 (Fla. 1990)
- Gupton v. Vill. KEY & SAW Shop, Inc., 656 So. 2d 475 (Fla. 1995)
- Behar v. Se. Banks Tr. Co., 374 So. 2d 572 (Fla. 3d DCA 1979)
- Stuart Plaza, Ltd. v. Atl. Coast Dev. Corp. OF Martin Cnty., 493 So. 2d 1136 (Fla. 4th DCA 1986)
- Alhambra Homeowners Ass'n, Inc. v. Adnan Asad, 943 So. 2d 316 (Fla. 4th DCA 2006)
- State v. Doran, 958 So. 2d 1082 (Fla. 1st DCA 2007)