[RPPTL LandTen] Requirement for 3-day Notice

[Shane Weaver]

Adding to Leonard's comment, attorneys fees are not ordinarily included as "costs" for Rule 1.420(d) purposes except when the authorizing statute allows it. Fla. Stat. 83.48 does just that by stating a party may recover "reasonable court costs, including attorney's fees." There's case law on that, as well.

The mandatory abatement under Rule 1.420(d) is for actions "based upon or including the same claim," so it may not apply if, for example, the first action was for unpaid rent but the second is an unconditional termination.

Shane Weaver, Esq.
Legal Aid Society of Palm Beach County
423 Fern Street, Suite 200
West Palm Beach, FL 33401
Tel. (561) 822-9785
Fax (561) 822-9885
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From: landten-bounces at lists.flabarrpptl.org [landten-bounces at lists.flabarrpptl.org] On Behalf Of Leonard Cabral [dungsorter at gmail.com]
Sent: Saturday, August 27, 2011 4:26 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice

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)


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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
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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.

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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
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