[RPPTL LandTen] Requirement for 3-day Notice

Sun Aug 28 13:20:17 PDT 2011

Anthony,
Voluntary dismissal, even without prejudice, typically makes the defendant the prevailing party and entitled to fees under contract or statute. The only exception is when it is a first dismissal without prejudice and the defendant seeks fees under a Proposal for Settlement/Offer of Judgment. That is F.S. 768.79 requires a "judgment" or other finality (e.g., dismissal with prejudice) in order for a party to be considered a "prevailing party." Here's a recent case from the Fourth DCA on the topic:

--- So.3d ----, 2011 WL 3687448 (Fla.App. 4 Dist.)

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NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

District Court of Appeal of Florida,
Fourth District.
Byron HENN, Appellant,
v.
ULTRASMITH RACING, LLC, a Florida limited liability company, Appellee.

No. 4D10-2674.

Aug. 24, 2011.

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Donald W. Hafele, Judge; L.T. Case No. 502007CA001349XXXXMB.
Daniel S. Weinger of Conrad & Scherer, LLP, Fort Lauderdale, for appellant.

Les Stracher of Kurkin Forehand Brandes, LLP, Weston, and R. Craig Spickard of Kurkin Forehand Brandes, LLP, Tallahassee, for appellee.

LEVINE, J.

*1 The issue presented in this appeal is whether the trial court erred in denying appellant's motion for attorney's fees after the trial court dismissed appellee's case without prejudice. We find that appellant was entitled to attorney's fees in this case, and we reverse.

Appellee sued appellant for a single count of breach of contract due to damage to a race car that appellant rented from appellee. After two years of litigation, appellee's attorney moved to withdraw from the case. The trial court granted counsel's motion to withdraw and set a mandatory status conference for October 15, 2009. The trial court required attendance and stated that "[f]ailure to attend (plaintiff must have counsel) shall result in dismissal/default & /or other sanctions." When appellee did not appear on October 15, the trial court reset the status conference for October 22, and the court restated its admonition that dismissal, default and/or other sanctions would result if appellee did not attend the conference with counsel. On October 22, appellee's "principal and managing agent" appeared at the hearing without counsel and attempted to file a notice of voluntary dismissal. The trial court dismissed the case without prejudice at the October 22 hearing, noting that the managing agent could not submit a notice of voluntary dismissal for the corporation without counsel, but recognizing the agent's oral request for dismissal.

Since the court reserved jurisdiction for attorney's fees, appellant subsequently filed a motion for attorney's fees and costs on the basis that the dismissal was voluntary, and as such, appellant was the prevailing party under the rental contract. Appellee responded, this time through counsel, by filing a motion to strike the request for attorney's fees and a motion for clarification regarding the reason for dismissal on October 22. After a hearing on the motion for clarification, the trial court held that it dismissed the case without prejudice as a sanction for appellee's failure to comply with the trial court's order to appear at the status conference with counsel. The trial court subsequently denied appellant's motion for attorney's fees without prejudice to refile the motion based on the clarification. Appellant refiled his motion, and the trial court denied the request for attorney's fees, concluding that since the dismissal was without prejudice, the litigation did not necessarily end with the trial court's order of dismissal. This appeal ensues.

We review de novo the trial court's rulings on entitlement to attorney's fees in this case as a question of law. See, e.g., Save on Cleaners of Pembroke II Inc. v. Verde Pines City Center Plaza LLC, 14 So.3d 295, 297 n. 4 (Fla. 4th DCA 2009).

We find that the trial court erred in not finding appellant the prevailing party. "The general rule is that when a plaintiff voluntarily dismisses an action, the defendant is the 'prevailing party' within the meaning of statutory or contractual provisions awarding attorney's fees to the 'prevailing party' in litigation." Alhambra Homeowners Ass'n v. Asad, 943 So.2d 316, 318 (Fla. 4th DCA 2006).

*2 Likewise, when the court dismisses an action without prejudice as a sanction, the defendant may be deemed a prevailing party. In Valcarcel v. Chase Bank USA NA, 54 So.3d 989 (Fla. 4th DCA 2010), the trial court dismissed without prejudice the plaintiff's foreclosure action as a sanction due to the plaintiff's counsel's misconduct. The defendants filed a motion for attorney's fees on the basis that the suit was involuntarily dismissed and that they were the prevailing parties. The trial court concluded that the order of dismissal without prejudice was not a final judgment and denied the motion for attorney's fees and costs. This court disagreed and determined that it was "not necessary for there to be an adjudication on the merits in order to be entitled to fees as a prevailing party." Id. at 990. This court also concluded that the defendants were entitled to attorney's fees as prevailing parties in the case. "Although the dismissal order was not an adjudication on the merits, the [defendants] can nonetheless be considered the prevailing party. They are entitled to an award of attorney's fees because the action against them was dismissed." Id. at 991.

In the present case, we do not reach the issue of whether the dismissal order was predicated on appellee's agent's notice or whether the dismissal was a sanction. Either way, appellant was entitled to attorney's fees as the prevailing party in the case under Alhambra or Valcarcel. Like Valcarcel, the dismissal in this case was not an adjudication on the merits, since it was a dismissal without prejudice. Under Valcarcel, however, a defendant may "prevail" even where the case is not dismissed on the merits. The fact that the trial court dismissed the case without prejudice was sufficient to trigger appellant's entitlement to attorney's fees as the prevailing party under the rental contract.

For the foregoing reasons, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

WARNER and POLEN, JJ., concur.

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> [mailto:landten-bounces at lists.flabarrpptl.org]<mailto:[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.

Richman Greer P.A.
Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar
Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401

Office:561.803.3500
Fax: 561.820.1608
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Email:MFarach at richmangreer.com

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From: landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org> [mailto:landten-bounces at lists.flabarrpptl.org]<mailto:[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> [mailto:landten-bounces at lists.flabarrpptl.org]<mailto:[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<mailto:sfrank at saflaw.com>>
To: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org<mailto: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<mailto:sfrank at saflaw.com>
www.saflaw.com<http://www.saflaw.com/>

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