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

By March 28, 2013

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.

For example, the First, Second, Fourth and Fifth Districts follow “a bright line general rule to control the award of attorneys’ fees after a voluntary dismissal” and refuse to “look behind a voluntary dismissal to decide whether the dismissal represents an end or finality to the litigation on the merits.”  Alhambra Homeowners Ass’n, Inc. v. Asad, 943 So. 2d 316, 321 (Fla. 4th DCA 2006) (noting a conflict with the law in the Third District on this issue).  However, the Third District appears to be the only district that does not follow this “bright line general rule.”  Id.  
Rather, in the Third District “a defendant does not become a prevailing party on the merits where a plaintiff voluntarily dismisses the complaint without prejudice.”  Aristar, Inc. v. Armstrong, 497 So. 2d 1267, 1268 (Fla. 3d DCA 1986) (J. Ferguson specially concurring).  Instead, “there must be some end to the litigation on the merits so that the court can determine whether the party requesting fees has prevailed.”  Simmons v. Schimmel, 476 So. 2d 1342, 1345 (Fla. 3d DCA 1985)
Consequently, in stark contrast to the other districts, in the Third District the courts actually look behind the voluntary dismissal to determine whether it was related to the merits of the case, and whether the defendant has established that the case would have ultimately concluded with entry of judgment in its favor, in order to determine whether the defendant was the prevailing party for purposes of awarding attorney’s fees and costs. See Englander v. St. Francis Hospital, Inc., 506 So. 2d 423, 424 (Fla. 3d DCA 1987) (following a voluntary dismissal without prejudice a defendant is deemed the prevailing “if it showed that, had not the voluntary dismissal intervened, the case would have concluded with the entry of summary judgment in its favor”).  The Third District’s unique treatment of this issue is an important distinction that demonstrates the need to first obtain the defendant’s agreement to voluntarily dismiss an action without prejudice in the First, Second, Fourth and Fifth Districts, and may also be something to consider when deciding where to file an action in the first place.