Abbey Adams Logo

Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982

  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

  • Bloglovin
  • Facebook
  • LinkedIn
  • Phone
  • Home
  • Locations
    • Where We Practice in Florida
    • Where We Practice In Illinois
  • Practices
  • Attorneys
    • David J. Abbey
    • Jeffrey M. Adams
    • Bruce D. Burk
    • Robert P. Byelick
    • Jaime Eagan
    • Jennifer J. Kennedy
    • John D. Kiernan (1947-2016)
    • V. Joseph Mueller
    • Steven A. Ochsner
    • Alexis C. Upton
  • Blog
  • Links
  • Contact Us

January 3, 2021 by Jennifer Kennedy

Attorney’s fees — Proposal for settlement — Defendants not entitled to award of attorney’s fees under section 768.79 and rule 1.442 following plaintiff’s voluntary dismissal of action against them where dismissal was without prejudice, even though dismissal was filed after expiration of statute of limitations period and expiration of period allowed for acceptance of proposal for settlement — Dismissal without prejudice after expiration of statute of limitations period and expiration of period for acceptance of proposal for settlement is not an adjudication on the merits

46 Fla. L. Weekly D10d

JAMES M. HERRELL and JOAN M. RUDICK, Appellants, v. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY a/s/o SELMA SHIRLEY ZETZER, Appellees. 2nd District. Case No. 2D19-1911. December 23, 2020. Appeal from the Circuit Court for Lee County; Alane C. Laboda, Judge. Counsel: Scot E. Samis and Christopher Shand of Traub Lieberman Straus & Shrewsberry LLP, St. Petersburg, for Appellants. Nancy W. Gregoire of Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale; and Mary E. Cantwell of Markcity, Rothman, Cantwell & Breitner, P.A., Plantation, for Appellees.

(SMITH, Judge.) In this subrogation action, Universal Property and Casualty Company sued James Herrell and Joan Rudick for negligence, only to dismiss the action by the filing of a notice of voluntary dismissal under Florida Rule of Civil Procedure 1.420(a)(1) almost two years later and on the eve of trial but after the statute of limitations period expired and after Herrell and Rudick served Universal Property with separate proposals for settlement under Florida rule of Civil Procedure 1.442 and section 768.79, Florida Statutes (2018). Herrell and Rudick appeal the denial of their motion for attorney’s fees, arguing that even though the dismissal was without prejudice, the dismissal has the same preclusive effect as a dismissal with prejudice because the statute of limitations had expired — facts which, according to Herrell and Rudick, distinguish this case from MX Investments, Inc. v. Crawford, 700 So. 2d 640 (Fla. 1997). We disagree.

In MX Investments, the supreme court held that a party is not entitled to an award of attorney’s fees and costs pursuant to a proposal for settlement under section 768.79 unless the dismissal is with prejudice. Id. at 642. In so holding the court reasoned:

We construe the terms “voluntary dismissal” and “involuntary dismissal” in section 768.79(6), Florida Statutes (1991), to mean a dismissal with prejudice so that the dismissal is the basis for a judgment of no liability as contemplated in section 768.79(1), Florida Statutes (1991). Thus, only when a plaintiff’s voluntarily dismissal is with prejudice or is a second voluntary dismissal is the defendant entitled to attorney fees in accord with section 768.79, Florida Statutes (1991).

Id. (emphasis added); see also Commonwealth Prop. Assocs. v. SunTrust Bank, Sw. Fla., 835 So. 2d 1175, 1177 (Fla. 2d DCA 2002). There is no question that the dismissal here was Universal Property’s first voluntary dismissal under rule 1.420(a)(1) and was without prejudice at the time it was filed. The fact that Universal Property dismissed the lawsuit after the expiration of the statute of limitation period and the time period to accept the offer of judgment does not change the nature of the dismissal.

Herrell and Rudick’s argument that the dismissal without prejudice has the same preclusive effect as a dismissal with prejudice because the statute of limitations had expired for purposes of an award of attorney’s fees under a proposal for settlement has already been rejected by the Third District. See Gammie v. State Farm Mut. Auto. Ins. Co., 720 So. 2d 1163, 1163-64 (Fla. 3d DCA 1998) (rejecting argument that a voluntary dismissal after the statute of limitations period is the equivalent of an adjudication on the merits). We too decline to accept the argument that a dismissal after the expiration of the statute of limitations equates to a dismissal with prejudice and as such falls outside of the Florida Supreme Court’s holding in MX Investments. 700 So. 2d at 642. In essence, Herrell and Rudick advance a fairness and equity argument, which we deem more appropriate for the legislature or the supreme court or the Civil Procedure Rules Committee to address. Because to hold otherwise — choosing equity over the rule — would deny a plaintiff the benefit of exercising its right under rule 1.420(a)(1) to dismiss its lawsuit anytime “after a motion for summary judgment is denied, but before retirement of the jury, or before submission of a nonjury case to the court for decision.” See Aero Toy Store, Inc. v. Sherwin Williams Co., 725 So. 2d 1267, 1268 (Fla. 4th DCA 1999) (holding that the trial court is divested of jurisdiction to enter a dismissal with prejudice where a party voluntarily dismisses the case under rule 1.420(a)(1) and thus an award of attorney’s fees under section 768.79 is improper). Accordingly, we hold that a dismissal without prejudice after the expiration of the statute of limitations period and the expiration of the period allowed to accept a proposal for judgment is not an adjudication on the merits. Gammie, 720 So. 2d at 1163-64; see also Tucker v. Ohren, 739 So. 2d 684, 686 (Fla. 4th DCA 1999) (reversing award of attorney’s fees under section 768.79 where involuntary dismissal based on the failure to join an indispensable party did not result in an adjudication on the merits).

Affirmed. (KHOUZAM, C.J., and MORRIS, J., Concur.)* * *

Filed Under: Uncategorized

Primary Sidebar

Blog Archives

  • April 2021
  • March 2021
  • February 2021
  • January 2021
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • October 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013

Footer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. opens in a new windowAbbey, Adams, Byelick, & Mueller XML Sitemap Index

Copyright © 2021 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982