RANDOLPH C. TUCKER, JR., APPELLANT,
v.
WILLARD AYRES ET AL., APPELLEES
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Trial court erred in awarding attorneys' fees to defendant partners where plaintiff voluntarily dismissed his partnership accounting suit without prejudice, as no fund was created and defendants did not prevail.
Attorneys' fees cannot be awarded to defendant partners in a partnership accounting suit dismissed without prejudice by the plaintiff, absent a fund brought into court or a prevailing party status.
[1] Attorneys' fees cannot be awarded to defendants in a partnership accounting action dismissed without prejudice by plaintiff absent creation of a fund for distribution or…
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Join FLexlaw to unlock all legal intelligenceTucker filed suit for partnership accounting against Ayres and other partners, then unilaterally dismissed it without prejudice by serving a notice of…
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SMITH, Judge.
Appellant Tucker filed this suit for a partnership accounting, then unilaterally dismissed it by serving a notice of dismissal without prejudice. Rule 1.420(a)(1), R.C.P. In taxing the defendant partners’ costs pursuant to motion filed by appellees after the dismissal, the trial court awarded $1,250 in attorneys fees. Rule 1.420(d). On Tucker’s appeal, that award is defended as an appropriate allowance incident to the disposition of a suit for partnership accounting. The principle allowing such awards is akin to that applicable when a claimant and his attorney have brought a fund into court for distribution. A. J. Richey Corp. v. Garvey, 132 Fla. 602, 182 So. 216 (1938); Cooper v. Fulton, 158 So. 2d 759 (Fla.App.3d, 1963), cert. discharged, 165 So. 2d 161 (Fla.1964). Here, however, the litigation was aborted and no fund was created. Even if an award of attorneys fees were appropriate for a prevailing party defendant in an action such as this, the appellees did not prevail by the voluntary dismissal of Tucker’s suit without prejudice.
The judgment awarding attorneys’ fees is REVERSED, appellees’ motion for an allowance of fees on appeal is DENIED, and the case is REMANDED for entry of a judgment awarding appellees’ costs at trial and appellant’s costs on appeal.
BOYER, C. J., and McCORD, J., concur.
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Englander v. ST. Francis Hosp., Inc., 506 So. 2d 423 (Fla. 3d DCA 1987)…tiff heretofore has divested the trial court of its authority to consider the merits of the case. [*425] Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So. 2d 68 (Fla.1978); Hayden v. Hayden, 373 So. 2d 436 (Fla. 3d DCA 1979); Tucker v. Ayres, 336 So. 2d 1224 (Fla. 1st DCA 1976). This court now gives the trial court the authority to decide, after the plaintiff has voluntarily dismissed the action, whether the defendant would have prevailed at a summary judgment hearing but for the dismissal. A public po…
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Alvin E. Tobin, M. A., P. A. v. Lefkowitz, 367 So. 2d 682 (Fla. 3d DCA 1979)…ther. However, that exception does not apply in this case be-, cause, while one count of the complaint sought a formal accounting, that count was in effect abandoned, and the case was tried' to a jury as an ordinary damage suit. See Tucker v. Ayres, 336 So. 2d 1224 (Fla.lst DCA 1976); Coffman v. Jordan, 305 So. 2d 227 (Fla.4th DCA 1974). The $5,000.00 award of attorney’s fees is therefore stricken from the judgment under review which is otherwise affirmed. Affirmed as modified.…
Authorities Cited
- A. J. Richey Corp. v. Garvey, 132 Fla. 602 (Fla. 1938)
- Cooper v. Fulton, 158 So. 2d 759 (Fla. 3d DCA 1963)
- Fulton v. Cooper, 165 So. 2d 161 (Fla. 1964)