Third DCA Affirms: A Voluntary Dismissal is not a Determination that an Injunction was Wrongfully Entered

By Jeffrey Berman

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.

Kluger, Kaplan, Silverman, Katzen & Levine Partners Named “Super Lawyers” 2014

 A dozen of our attorneys have been selected as top legal practitioners by Super Lawyers. Outstanding lawyers from more than 70 practice areas, who have attained a high-degree of peer recognition and professional achievement, are named Super Lawyers each year. Kluger Kaplan was also ranked in the “Top 100” law firms in Florida.  The selection process is competitive and includes independent research, peer nominations and peer evaluations.

Kudos to the following attorneys:

Rising Stars                                                 Super Lawyers

– Jeffrey Berman                                            – Deborah Chames
Casey Cusick                                              – Abbey Kaplan
– Jorge Delgado                                             – Bruce Katzen
– Lisa Jerles                                                   – Alan Kluger
Justin Kaplan                                               – Todd Levine
– Richard Segal                                              – Steve Silverman


Kluger Kaplan Attorneys Celebrate Summer With a Road Rally

Last week, Kluger Kaplan hosted a summer outing at Xtreme Indoor Karting.  Our competitive natures kicked into high gear as attorneys raced each other on the go-cart track for bragging rights.

Congratulations to Jeff Berman, Jorge Delgado and Justin Kaplan, who placed in the top 3.  A fun time was had by all!

Associates’ Corner: In the Third District A Voluntary Dismissal Without Prejudice Does Not Automatically Make the Defendant a Prevailing Party—The Outlier

By Jeffrey M. Berman

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.

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Associate’s Corner: Don’t Forget to Reply to Affirmative Defenses!

Associate’s Corner

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.

Don’t Forget to Reply to Affirmative Defenses!

By Jeffrey M. Berman

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