Appellate Update – Is the Defendant the Prevailing Party if the Plaintiff Dismisses Their Case without Prejudice?

March 24, 2016 by on News

In Yampol v. Schindler Elevator Corp., No. 3D14-2338, 2016 WL 822062, at *1 (Fla. 3d DCA Mar. 2, 2016), the plaintiff voluntarily dismissed the action without prejudice. As a result, the defendants moved for prevailing party attorney’s fees under Florida Statute § 718.303(1). Section 718.303(1) provides:

Each unit owner, each tenant and other invitee, and each association is governed by, and must comply with the provisions of, this chapter, the declaration, the documents creating the association, and the association bylaws which shall be deemed expressly incorporated into any lease of a unit. Actions for damages or for injunctive relief, or both, for failure to comply with these provisions may be brought by the association or by a unit owner against:

(a) The association.

(b) A unit owner.

(c) Directors designated by the developer, for actions taken by them before control of the association is assumed by unit owners other than the developer.

(d) Any director who willfully and knowingly fails to comply with these provisions.

(e) Any tenant leasing a unit, and any other invitee occupying a unit.

The prevailing party in any such action or in any action in which the purchaser claims a right of voidability based upon contractual provisions as required in s. 718.503(1)(a) is entitled to recover reasonable attorney’s fees.

Fla. Stat. § 718.303.

The trial court awarded the defendants attorney’s fees as the prevailing party. On appeal, the Third District explained that the trial court properly followed the rule established in Thornber v. City of Fort Walton Beach, 568 So. 2d 914 (Fla. 1990). In Thornber, the Florida Supreme Court held that “when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party.” Dismissals without prejudice are not exempt from this rule. Further, courts have conferred prevailing party status under similar attorney fee provisions where an adverse ruling on a defendant’s motion for summary judgment was likely. These were nearly identical facts to the instant case. As a result, the Third District affirmed the trial court’s award.

We anticipate that this case may be used in other contexts outside of condo litigation. However, it will likely not apply to attorney’s fees resulting from an offer of judgment or proposal for settlement as the Florida Supreme Court held that the Florida Statute 768.79 “does not provide a basis for the award of attorney fees and costs unless a dismissal is with prejudice.” MX Investments, Inc. v. Crawford, 700 So. 2d 640, 642 (Fla. 1997).

If you have any questions about this case or would like to refer an appellate matter, please contact our appellate attorneys.


Kansas R. Gooden
Board Certified Appellate Attorney
Appellate Practice Group Leader
Direct: 904.493.3755
Fax: 904.493.5658
Associate, Loreyn P. Raab, thumbnail
Loreyn P. Raab
Direct: 904.309.6786
Fax: 904.520.7597


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