39 Fla. L. Weekly D2339a
defendant pursuant to proposal for settlement for count which had been
voluntarily dismissed before any determination of liability had been reached
THE SCOTT PARTNERSHIP ARCHITECTURE, INC., Appellee. 5th District. Case Nos.
5D13-1965 and 5D13-3641. Opinion filed November 7, 2014. Appeal from the Circuit
Court for Orange County, Lisa T. Munyon, Judge. Counsel: William J. McFarlane,
III, and Mark T. Babcock, of McFarlane & Dolan, Coral Springs, for
Appellant. Andrew P. Thompson, Stephen M. Bull, and Jason B. Vrbensky, of Bull
and Associates, P.A., Orlando, for Appellee.
Engineering of Central Florida, LLC (Scherer) appeals both the Final Judgment on
Fees and the separate Final Judgment on Costs. It argues (1) the trial court
erred in awarding attorney’s fees and costs pursuant to a proposal for
settlement filed by the third-party defendant below, appellee The Scott
Partnership Architecture, Inc. (TSPA); and (2) the trial court erred in awarding
TSPA costs as the prevailing party where Scherer had voluntarily dismissed one
of two counts before any determination of liability had been reached. Because
attorney’s fees for the defense of a claim voluntarily dismissed without
prejudice are not recoverable pursuant to section 768.79, Florida Statutes
(2013), we reverse that portion of the Final Judgment on Fees awarding fees
relative to the voluntarily dismissed indemnification count. We affirm the
remainder of the two judgments in all other respects.
alleging counts for contribution and indemnification.1 TSPA filed and served a proposal for settlement on
Scherer. The time expired for acceptance of the proposal for settlement.
Thereafter, the trial court granted a motion for summary judgment filed by TSPA,
concluding that the alleged cause of action for contribution was barred. Scherer
subsequently filed a Notice of Voluntary Dismissal that effectively dismissed
the remaining claim for indemnification. The dismissal was without prejudice.
Thereafter, the trial court rendered the judgments for fees and costs under
without prejudice, it was improper for the trial court to render judgment
awarding attorney’s fees in favor of TSPA for its defense of the dismissed count
for indemnification. As this court explained in Ormond Beach Associates Ltd.
v. Citation Mortgage, Ltd., 835 So. 2d 292, 296-97 (Fla. 5th DCA 2002),
review denied, 847 So. 2d 978 (Fla. 2003):
Our supreme court has ruled that, upon voluntary dismissal of an
action without prejudice, statutory offer of judgment attorney’s fees are not
recoverable. See MX Investments, Inc. v. Crawford, 700 So. 2d 640
(Fla. 1997) (holding that offer of judgment statute does not provide a basis for
an award of attorney fees and costs unless dismissal is with prejudice). Thus,
once the trial court recognized Citation Mortgage’s notice of voluntary
dismissal without prejudice, Ormond Beach lost its right to request recovery of
such fees. To hold otherwise would preclude the filing of a voluntary dismissal
in all cases in which a defendant had filed an offer of judgment.
1997) (“We conclude that section 768.79, Florida Statutes (1991), does not
provide a basis for the award of attorney fees and costs unless a dismissal is
with prejudice.”); Smith v. Loews Miami Beach Hotel Operating Co., Inc.,
35 So. 3d 101 (Fla. 3d DCA 2010) (holding defendant not entitled to fees under
offer of judgment statute because plaintiff had filed voluntary dismissal
without prejudice, which did not operate as an adjudication on the merits);
Commonwealth Prop. Assocs., Inc. v. SunTrust Bank, Sw. Fla., 835 So. 2d
1175 (Fla. 2d DCA 2002) (same); Ass’n Emp’rs Ins. Co. v. Am. Excavating &
PSI, Inc., 701 So. 2d 110, 110 (Fla. 5th DCA 1997) (“[N]o entitlement to
attorney’s fees arises under section 768.79 unless the case is dismissed with
prejudice.”), review denied, 717 So. 2d 536 (Fla. 1998).2 Although the cited case law discusses the impact of
the voluntary dismissal of an entire case, the analysis is equally applicable
where, as here, the voluntary dismissal was as to one of two claims.
fees against Scherer for TSPA’s defense of the voluntarily dismissed claim for
indemnification. We affirm that part of the judgment awarding fees for the
defense of the contribution count, and we affirm the judgment awarding costs.
contract between Scherer and TPSA that would support an award of fees.
claim deprived the court of jurisdiction to enter Final Judgment on the
indemnity claim. Randle-E. Ambulance Serv., Inc. v. Vasta, 360 So. 2d 68,
69 (Fla. 1978) (“The right to dismiss one’s own lawsuit during the course of
trial is guaranteed by Rule 1.420(a), endowing a plaintiff with unilateral
authority to block action favorable to a defendant which the trial judge might
be disposed to approve. The effect is to remove completely from the court’s
consideration the power to enter an order, equivalent in all respects to a
deprivation of ‘jurisdiction’.”). Accordingly, the entry of the Final Judgment,
insofar as it could be read as entry of judgment on the indemnity claim, was a
nullity and cannot be used to support any argument that TSPA prevailed on the
merits of the indemnity claim for purposes of section 768.79.
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