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.

Lessons in Social Media from the Third DCA

By Steve Silverman

Last week, the Third DCA’s opinion in Gulliver Schools, Inc. v. Snay served as a lesson to the Facebook generation to once again think before posting.  The former Gulliver headmaster sued the school for wrongful termination and the parties reached a settlement whereby Snay was to receive $10,000 in back pay, an $80,000 lump sum payment and $60,000 to Snay’s attorney.  As a condition to settlement, Gulliver required a confidentiality provision as to the terms of the settlement.  But just four days after the parties inked the agreement, Gulliver notified Snay that he had breached the agreement based on his daughter’s Facebook post:

“Mama and Papa Snay won the case against Gulliver.  Gulliver is now officially paying for my vacation to Europe this summer.  SUCK IT.”

Gulliver notified Snay that it would pay the attorney’s fees but not Snay’s portion because he had breached the confidentiality provision.  The Third agreed with Gulliver, reversing the trial court and setting a precedent that should make social media users think twice before posting.  Those of us who rely on electronic discovery have been shouting from the rooftops about the dangers of social media use in litigation for many years.  But the result in Snay is one of the first where a litigant has suffered greatly as a result of social media use.  This should serve as a reminder to those who use social media to think before you post.

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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Third DCA Watch: University of Miami v. Great American Assurance Company, et. al.

By Michael S. Perse


Last week, the Third DCA issued an opinion in the case of University of Miami v. Great American Assurance Company.  In this case, MagiCamp, a swim camp that used the University of Miami pool, had a general liability policy that named UM as an additional insured.  A child was injured at the camp and the parents sued UM and MagiCamp.  Great American retained one law firm to represent both parties.  In its answer and affirmative defenses, MagiCamp sought indemnification from UM and also sought to shift liability to UM.  UM advised Great American that there was a conflict of interest in one firm representing both MagiCamp and UM and claimed that MagiCamp was responsible for the child’s injuries.  However the insurer refused to provide independent counsel.

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Third DCA Watch

This week, Michael S. Perse comments on the Third District Court of Appeals decision in Blue Star Palms, LLC v. LED Trust, LLC.

The 3rd DCA granted Blue Star Palms and Blue Star Briar, LLC’s writ of certiorari, quashing Judge Langer’s order denying a motion to dissolve a writ of lis pendens.  In granting the writ of certiorari, the Court reminds litigants (and circuit court judges!) that when a case is really just a dispute over monetary damages (in this instance related to a promised membership interest), unless the plaintiff can show a direct connection to specific real property, the plaintiff is not entitled to maintain a lis pendens on that property during the pendency of the suit.

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