THE BANK OF NEW YORK, ACTING SOLELY IN ITS CAPACITY AS TRUSTEE FOR EQUICREDIT CORPORATION TRUST 2001-2, APPELLANT,
v.
PAULETTE WILLIAMS, ET AL., APPELLEES
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The Bank of New York appealed an award of attorney's fees and costs to defendant Paulette Williams following dismissal with prejudice of the Bank's foreclosure complaint. The court affirmed, holding that Williams was the prevailing party entitled to fees under Florida law, and that the trial court did not abuse its discretion in applying a 2.5 multiplier to the fee calculation.
Williams was the prevailing party entitled to attorney's fees because the complaint was dismissed with prejudice, which operates as an adjudication on the merits. The trial court did not abuse its discretion in applying a 2.5 multiplier, as it fully analyzed the applicable factors and made detailed findings supported by competent substantial evidence.
[1] A defendant is entitled to recover attorney's fees as the prevailing party after a plaintiff voluntarily dismisses a lawsuit without prejudice, even if the plaintiff refi…
[2] An involuntary dismissal operates as an adjudication on the merits unless the court specifies otherwise, or the dismissal is for lack of jurisdiction, improper venue, or…
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Join FLexlaw to unlock all legal intelligence“We hold that a defendant is entitled to recover attorney's fees under section 68.086(3), which awards fees to the prevailing party, after the plaintiff takes a voluntary dismissal without prejudice. The refiling of the same suit after the voluntary dismissal does not alter the appellees' right to recover prevailing party attorney's fees incurred in defense of the first suit.”
Establishes that a defendant remains entitled to prevailing party attorney's fees even when the plaintiff subsequently refiles the same suit
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Join FLexlaw to unlock all legal intelligenceThe Bank filed a residential mortgage foreclosure complaint against Williams that was dismissed without prejudice because the Bank failed to demonstra…
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PER CURIAM.
The Bank of New York, acting solely in its capacity as trustee for Equieredit Corporation Trust 2001-2, appeals an order awarding Paulette Williams, appellee, attorney’s fees and costs following the dismissal with prejudice of the Bank’s residential mortgage foreclosure complaint against Williams and others. The Bank argues that Williams was not entitled to an award of attorney’s fees because she was not a prevailing party under section 57.105(7), Florida Statutes (2006); and that, even if Williams was entitled to attorney’s fees, the trial court erred in using a multiplier in setting the fee award. We affirm.
The Bank’s complaint and amended complaint were dismissed without prejudice on the ground that, because the Bank failed to show that it owned the mortgage and associated promissory note, the Bank lacked standing to institute the foreclosure action. When the Bank declined to file a second amended complaint, the trial court dismissed the amended complaint with prejudice. The Bank did not appeal this order, but instituted a new foreclosure action against Williams. The Bank argues that because the same factual and legal issues raised in the dismissed action are also the subject of the new litigation, Williams cannot be the prevailing party under section ST.IOSÍT).1 We have expressly rejected the Bank’s argument in the context of a plaintiffs voluntary dismissal without prejudice. State ex rel. Marsh v. Doran, 958 So. 2d 1082 (Fla. 1st DCA 2007). There we explained:
We hold that a defendant is entitled to recover attorney’s fees under section 68.086(3), which awards fees to the prevailing party, after the plaintiff takes a voluntary dismissal without prejudice. The refiling of the same suit after the voluntary dismissal does not alter the appellees’ right to recover prevailing party attorney’s fees incurred in defense of the first suit. Canfield v. Cantele, 837 So. 2d 371 (Fla.2002); Alhambra Homeowners Ass’n, Inc. v. Asad, 943 So. 2d 316 (Fla. 4th DCA 2006).
Id. Here, since the complaint was dismissed with prejudice, it is clear that Williams was the prevailing party. Rule 1.420(b), Florida Rule of Civil Procedure, provides that, in the case of an involuntary dismissal:
Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, operates as an adjudication on the merits.
Further, we find no abuse of discretion in the trial court’s use of a multiplier of 2.5 in establishing the attorney’s fees. In its order setting the attorney’s fees, the trial court fully analyzed the factors under rule 4-1.5, Florida Rules of Professional Conduct, Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.1985), and Standard Guaranty Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla.1990); and made detailed findings of fact which are supported by competent substantial evidence in the unrebutted testimony of both Williams’ counsel and her expert witness.
AFFIRMED.
WOLF, KAHN, and VAN NORTWICK, JJ., concur. . Section 57.105(7), Florida Statutes (2006) provides in pertinent part:
(7) If 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.
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Tatyana Nudel v. Flagstar Bank, FSB, 60 So. 3d 1163 (Fla. 4th DCA 2011)…ng a “prevailing party” under section 57.105(7), we see no reason to distinguish between a voluntary dismissal without prejudice and a court’s involuntary dismissal without prejudice. This same conclusion was reached in Bank of New York v. Williams, 979 So. 2d 347 (Fla. 1st DCA 2008), where the first district affirmed an award of prevailing party attorney’s fees on facts similar to those in this case. There, the bank sued the defendant to foreclose a mortgage. Id. at 347. The defendant moved to dismiss becaus…
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Country Place Cmty. Ass'n, Inc. v. J.P. Morgan Mortg. Acquisition Corp., 51 So. 3d 1176 (Fla. 2d DCA 2010)…al. Geisler v. Geisler, 397 So. 2d 1216, 1217 n. 1 (Fla. 2d DCA 1981). Because J.P. Morgan did not own or possess the note and mortgage when it filed its lawsuit, it lacked standing to maintain the foreclosure action. See Bank of N.Y. v. Williams, 979 So. 2d 347, 347 (Fla. 1st DCA 2008); Jeff-Ray Corp. v. Jacobson, 566 So. 2d 885, 886 (Fla. 4th DCA 1990). It follows that when J.P. Morgan filed its mortgage foreclosure action, it knew or should have known that its action was unsupported by the material facts…
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Ghanzanfar Raza v. Deutsche Bank Nat'l Tr. Co. in Tr. for the Benefit of the Certificateholders for Argent Sec. Tr. 2005-W4, 100 So. 3d 121 (Fla. 2d DCA 2012)…. Valley Oak Homeowners’ Ass’n at the Vineyards, Inc., 891 So. 2d 1063, 1064-65 (Fla. 2d DCA 2004) (holding that the homeowners’ association was entitled to fees following an involuntary dismissal for failure to prosecute); Bank of N.Y. v. Williams, 979 So. 2d 347, 347-48 (Fla. 1st DCA 2008) (holding that a mortgagor was the prevailing party after the court involuntarily dismissed the bank’s foreclosure action for lack of standing). This discussion demonstrates that Mr. Raza is the prevailing party. See Bara…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fla. Patient's Comp. Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985)
- Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990)
- Caufield v. Gino Cantele, 837 So. 2d 371 (Fla. 2002)
- 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)