RAY GRIFFIN, APPELLANT,
v.
THE BERKLEY SOUTH CONDOMINIUM ASSOCIATION, APPELLEE
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When a plaintiff voluntarily dismisses a lawsuit, the defendant is considered the prevailing party for the purpose of awarding attorney's fees.
A condominium association sued a unit owner for delinquent assessments. The association later discovered it had improperly charged the owner late fees…
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KLEIN, Judge.
Appellant, a condominium unit owner, appeals an order denying his motion for prevailing party attorney fees under section 718.303, Florida Statutes (1993), after the association dismissed its lawsuit to foreclose a lien. We reverse.
Appellant owns a commercial condominium in a budding which contains both commercial and residential units. The association filed suit against Griffin to foreclose a lien for delinquent assessments in the amount of $3,135.65. The association realized after filing the suit that it had been improperly charging appellant late fees, because there was no authority to do so in the documents, and that appellant had also been improperly assessed with electricity charges. The association then acknowledged that appellant actually had a credit balance and voluntarily dismissed the case.
Appellant subsequently moved for prevailing party attorney’s fees. At the hearing the president of the association testified that appellant was erratic in paying his assessments and that the lawsuit was necessary to make appellant pay on a regular basis. The association also put on testimony that although it had mistakenly acknowledged that appellant had a credit balance at around the time it dismissed the lawsuit, in actuality appellant owed the association a small amount which would not have been enough to warrant the filing of the suit.
We conclude that this case is governed by the principle that where a plaintiff takes a voluntary dismissal, the defendant is the prevailing party for purposes of attorney’s fees. Stuart Plaza, Ltd. v. Atlantic Coast Dev. Corp. of Martin County, 493 So. 2d 1136 (Fla. 4th DCA 1986) and cases cited therein. We therefore reverse and remand for the trial court to award reasonable attorney’s fees to appellant.
DELL and STEVENSON, JJ., concur.
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Walter D. Padow, M.D., P.A. v. Knollwood Club Ass'n, Inc., 839 So. 2d 744 (Fla. 4th DCA 2003)…. Optics Corp., 708 So. 2d 959 (Fla. 4th DCA 1998), abrogated on other grounds by Caufield, 837 So. 2d at 373-74; Boca Airport, Inc. v. Roll-N-Roaster of Boca, Inc., 690 So. 2d 640 (Fla. 4th DCA 1997), and Griffin v. Berkley South Condominium Ass’n, 661 So. 2d 135 (Fla. 4th DCA 1995). However, in none of these cases did the plaintiffs voluntary dismissal follow the defendant’s payment of substantially all of the plaintiffs claim. For example, in Griffin, an association filed suit against a unit owner to fore…
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Alhambra Homeowners Ass'n, Inc. v. Adnan Asad, 943 So. 2d 316 (Fla. 4th DCA 2006)…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. See Griffin v. Berkley S. Condo. Ass’n, 661 So. 2d 135 (Fla. 4th DCA 1995) (applying prevailing party provision in condominium statute, section 718.303, Florida Statutes (1993)); Hatch v. Dance, 464 So. 2d 713, 714 (Fla. 4th DCA 1985) (in a case where plaintiff voluntarily dismissed “after limited pre-t…
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Boca Airport, Inc. v. Roll-N-Roaster OF Boca, Inc., 690 So. 2d 640 (Fla. 4th DCA 1997)…es of a prevailing party attorney’s fees statute, a voluntary dismissal by the claimant makes the opposing party a “prevailing party” as to the issue of entitlement to fees. We apparently followed this logic in Griffin v. Berkley South Condo. Ass’n, 661 So. 2d 135 (Fla. 4th DCA 1995), citing Stuart Plaza, but not mentioning Goldstein. It is clear since Thomber that Stuart Plaza and Gordon state the correct rule and that Goldstein has been tacitly disapproved by the supreme court. In affirming the award in th…
Authorities Cited
- Stuart Plaza, Ltd. v. Atl. Coast Dev. Corp. OF Martin Cnty., 493 So. 2d 1136 (Fla. 4th DCA 1986)