Last week, Kluger, Kaplan, Katzen and Levine, P.L. obtained a victory for a client when the Third DCA affirmed a ruling from Judge Sarah Zabel denying a motion to seek damages against an injunction bond. Read opinion here.
We obtained an injunction on behalf of our client, Aventura Tennis, LLC after the appellants opened up a competing business in violation of their non-compete agreements. After the injunction expired on its own terms, we voluntarily dismissed the action. The Defendants then sought to recover damages against the injunction bond, claiming that the voluntary dismissal operated as determination that they had been wrongfully enjoined.
Both the trial court and the appellate court agreed that based upon the facts of our case and the fact that we only dismissed the action after the injunction expired, the dismissal did not support a finding that the injunction was wrongfully entered and as a result, the Defendants were not entitled to proceed against the bond.
Although there are instances where a voluntary dismissal could result in a finding that a defendant was wrongfully enjoined, it is not automatic. The courts must look to the facts of the case to determine whether a defendant is allowed to proceed on the bond.
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Recently, I dealt with an interesting issue regarding a defendant’s request for prevailing party costs under Fla. R. Civ. P. 1.420 following a voluntary dismissal without prejudice. The issue was whether the plaintiff’s voluntary dismissal without prejudice operated as an adjudication on the merits such that the defendant was automatically deemed the prevailing party for purposes of obtaining costs under Rule 1.420. Although the answer to this issue seems to be a clear cut “yes,” I was surprised to learn that in the Third District it is not. This is because unlike every other district in Florida, the Third District has repeatedly held that by itself a voluntary dismissal without prejudice is not tantamount to a finding that the defendant was the prevailing party for purposes of awarding attorney’s fees and costs.
Each month, Kluger Kaplan‘s associates will take to the blog to talk about topics relevant to their practice areas. This month, Jeffrey Berman reminds us of the consequences for failing to reply to affirmative defenses.
In a recent case, I encountered an issue that is often overlooked in litigation—replying to affirmative defenses. Under the Florida Rules of Civil Procedure, a party is not required to reply to the opposing party’s affirmative defenses merely to deny them. In fact, under Rule 1.110(e) affirmative defense are automatically deemed as denied in the absence of a reply. Fla. R. Civ. P. 1.110(e). However, where a party knows of facts that are outside the pleadings that avoid or negate the opposing party’s affirmative defenses (and not merely denies them), that party isrequired to file a reply setting forth those facts. In other words, a party must file a reply and plead its affirmative defense to the opposing party’s affirmative defense. Continue reading →