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Voluntary Dismissal entitles Defendant to Attorney's Fees as Prevailing Party
By Patrick Russell, Esq.
Jan 3, 2007 - 4:39:53 PM
Alhambra Homeowners Association Inc. v. Asad, 2006 WL 3613693 (Fla. 4DCA),opinion filed December 13, 2006
Homeowner's Association that voluntarily dismissed lawsuit against Homeowner for noncompliance with Association Rules was liable for Homeowner's attorney's fees. The general rule is that when a Plaintiff voluntarily dismisses an action, the Defendant is the prevailing party within the meaning of a statutory or contractual provision that awards attorney's fess to the prevailing party. This rule applies notwithstanding the fact that the Homeowner's Association refiled the lawsuit and ultimately prevailed under the same claims.
This decision conflicts with the Third District Court of Appeals decision of
Simmons v. Schimmel, 476 So.2d 1342 (Fla. 3DCA 1985), which holds that the voluntary dismissal of a complaint does not imply that the Defendant was the prevailing party as one must look beyond the dismissal to see if the dismissal represents an end or finality based on the merits.
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