[RPPTL LandTen] Requirement for 3-day Notice

Sat Aug 27 13:26:49 PDT 2011

Anthony:

>From one of my briefs:  Let me know if this helps clarify my statement. I
believe this is still good law.

Plaintiff, through his attorney, filed a Voluntary Dismissal. Pursuant to
Rule 1.420(d) of the Florida Rules of Civil Procedure, costs in any action
dismissed under this rule shall be assessed and judgment for costs entered
in that action. . . . and shall stay the proceeding in the action until the
party seeking affirmative relief has complied with the order.  (Emphasis
added)   Defendant requests to tax costs and stay any new action for Tenant
eviction for non-payment of rent until all costs and attorney fees awarded
are paid. 

Defendants is entitled to all costs including reasonable attorney fees, as a
voluntary dismissal requires a mandatory award of costs under Fla. R. Civ.
P. 1.420(d) which states in relevant part, "Costs in any action dismissed
under this Rule shall be assessed and judgment for costs entered in that
action." (Emphasis added) State ex rel Marsh v. Doran, 958 So. 2d 1082, 1082
(Fla. 1st DCA 2007); (prevailing party attorney fees due to Defendant upon
Plaintiff's voluntary dismissal without prejudice - "the refiling of the
same suit after voluntary dismissal does not alter the [prevailing party's]
right to recover prevailing party attorney's fees incurred in defense of the
first suit"); Alhambra Homeowner's Ass'n v. Asad, 943 So. 2d 316, 318-19
(Fla. 4th DCA 2006) (prevailing party attorney fees due to Defendant upon
Plaintiff's voluntary dismissal without prejudice); Stuart Plaza, LTD v.
Atlantic Coast Development Corp., 493 So. 2d 1136, 1137-37 (Fla. 4th DCA
1986) (prevailing party attorney fees due to Defendant upon Plaintiff's
voluntary dismissal of action without prejudice)

  _____  

From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Anthony Horky
Sent: Saturday, August 27, 2011 3:26 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice

Under what authority are attorneys' fees assessed on filing the first notice
of voluntary dismissal without prejudice?

Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

301 Yamato Road, Suite 1240

Boca Raton, Florida 33431

Telephone: (754) 224-6178

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From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Leonard Cabral
Sent: Friday, August 26, 2011 11:27 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice

Attorney's Fees are assessed under Rule 1.420(d) of the Florida Rules of
Civil Procedure if you voluntarily dismiss the case also and if you
voluntarily dismiss,  the case is stayed until you pay the costs and
attorney fees in the previous case.  

  _____  

From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Alberto M.
Cardet
Sent: Friday, August 26, 2011 9:51 AM
To: 'Cary Sabol'; 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice

I agree with Cary, Judges in Miami-Dade will also dismiss, but not always
award attorneys' fees as fees are not mandatory

From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Friday, August 26, 2011 8:17 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice

My opinion is that your 3 day notice becomes defective once any payment is
accepted.  Our Judges in PBC will not hesitate to dismiss an eviction on
those grounds and award atty fees to the tenant.  I would suggest you
voluntarily dismiss the case before the tenant incurs legal fees and
re-serve a new 3 day and start the process over again.  

Cary 

Cary P. Sabol, Esq.

P.O. Box 15981

West Palm Beach, Florida 33416 

Phone: (561) 281-2744

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From: Law Offices of Scott A. Frank <sfrank at saflaw.com>
To: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org>
Sent: Thursday, August 25, 2011 5:29 PM
Subject: [RPPTL LandTen] Requirement for 3-day Notice

Folks - quick residential question (from this commercial attorney) on the
need for a new 3-day notice to quit where there is a partial rent payment
accepted between the date of the original notice and the date the complaint
is filed.

Specifically - Tenant withheld part of July rent due to repairs and a demand
from the association (LL had been previously notified of need for repairs,
and tenant did in fact send invoices and itemization of deductions).
Landlord then sent a 3-day notice.  Then in August, tenant again withheld
part of rent and made a partial payment.  Next correspondence from the
landlord was the Complaint - no new 3-day notice.

So again the question is whether the lack of the new 3-day notice after
acceptance of partial rent precludes the eviction?

Any and all thoughts, ideas, etc. are most welcome.

Thanks.

Scott A. Frank

Attorney at Law

LAW OFFICES OF SCOTT A. FRANK, P.A.

7781 NW Beacon Square Boulevard, Suite 102

Boca Raton, FL 33487

p:  (561) 372-7860

f:  (561) 423-5721 

sfrank at saflaw.com

www.saflaw.com <http://www.saflaw.com/> 

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