Third District Court of Appeal
State of Florida
Opinion filed January 12, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-369
Lower Tribunal Nos. 19-SC-131 & 20-10 AP
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Catamaran B.Y., Inc.,
Appellant,
vs.
Deren Giordano,
Appellee.
An Appeal from the County Court for Monroe County, Sharon I.
Hamilton, Judge.
Robert E. Turffs, P.A., and Robert E. Turffs (Sarasota), for appellant.
Ovadia Law Group, P.A., and Chris Kasper (Boca Raton); Michael A.
Stewart (West Palm Beach), for appellee.
Before EMAS, LOGUE, and GORDO, JJ.
LOGUE, J.
Catamaran B.Y., Inc. appeals the trial court’s order denying its motion
for attorney’s fees as the prevailing party after Deren Giordano voluntarily
dismissed the case below. Because a voluntary dismissal, while not an
adjudication on the merits, generally entitles a defendant to attorney’s fees
as the prevailing party, we reverse and remand for the trial court to determine
a reasonable fee award.
Factual and Procedural Background
The underlying dispute is not particularly relevant to this appeal.
Suffice it to say, a dispute arose over fees charged for the storage and repair
of Giordano’s boat at the Catamaran Boat Yard in Key Largo. The dispute
seemingly turned violent, and police were called. The owner of Catamaran
then banned Giordano from the property, forcing Giordano, who lived on his
boat, to obtain accommodations at a hotel. Because Giordano was unable
to enter the property to retrieve his boat, the boat remained on the property
and accrued additional overnight storage fees. After four days, Giordano
hired a boat captain to enter the property and retrieve the vessel. Giordano
then sued Catamaran to recover damages related to his hotel stay and
extended overnight storage fees. Seven months after filing his complaint,
Giordano filed a notice of voluntary dismissal without prejudice. The trial
court dismissed the case.
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After the complaint was voluntarily dismissed, Catamaran moved for
its reasonable attorney’s fees as the prevailing party pursuant to a valid
contractual provision. Giordano opposed the motion for fees arguing that
Catamaran was not the prevailing party because the voluntary dismissal did
not act as an adjudication on the merits. Giordano claimed that he had
dismissed the case because of irreconcilable differences with his attorney,
and therefore, the dismissal was unrelated to the merits of the case. The trial
court denied the motion for fees finding that Catamaran was not the
prevailing party and the voluntary dismissal did not operate as an
adjudication on the merits. Catamaran timely appealed.
Analysis
The standard of review on the issue of entitlement to prevailing party
attorney’s fees is abuse of discretion. Shands Teaching Hosp. & Clinics, Inc.
v. Mercury Ins. Co. of Fla.,
97 So. 3d 204, 213 (Fla. 2012).
In Moritz v. Hoyt Enterprises, Inc.,
604 So. 2d 807, 810 (Fla. 1992), the
Florida Supreme Court declared that “the party prevailing on the significant
issues in the litigation is the party that should be considered the prevailing
party for attorney’s fees.” The Court explained that “the fairest test to
determine who is the prevailing party is to allow the trial judge to determine
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from the record which party has in fact prevailed on the significant issues
tried before the court.”
Id.
The general rule in Florida is that “when a plaintiff voluntarily dismisses
an action, the defendant is the prevailing party.” Thornber v. City of Fort
Walton Beach,
568 So. 2d 914, 919 (Fla. 1990). “It is not necessary for there
to be an adjudication on the merits in order to be entitled to fees as a
prevailing party.” Valcarcel v. Chase Bank USA NA,
54 So. 3d 989, 990 (Fla.
4th DCA 2010). Therefore, in basing its determination that Catamaran was
not the prevailing party on its failure to achieve an adjudication on the merits,
the trial court erred by applying the wrong legal test. The proper test is
whether Catamaran “in fact prevailed on the significant issues tried before
the court.” Moritz,
604 So. 2d at 810. Giordano sued Catamaran for damages
and failed to recover, therefore, Catamaran is the prevailing party.
Giordano asserts that Florida courts routinely acknowledge that the
Thornber “rule does not apply without exception and that a court may look
behind a voluntary dismissal at the facts of the litigation to determine if a
party has prevailed.” Residents for a Better Cmty. v. WCI Cmtys., Inc.,
291
So. 3d 632, 634 (Fla. 2d DCA 2020); see also Kelly v. BankUnited, FSB,
159
So. 3d 403, 406 (Fla. 4th DCA 2015) (recognizing that “strictly apply[ing] the
general rule [of Thornber] . . . would elevate form over substance and lead
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to a result contrary to the purpose of” fee-shifting provisions). In other words,
“courts must look to the substance of litigation outcomes—not just
procedural maneuvers—in determining the issue of which party has
prevailed in an action.” Residents, 291 So. 3d at 634 (quoting Tubbs v.
Mechanik Nuccio Hearne & Wester, P.A.,
125 So. 3d 1034, 1040 (Fla. 2d
DCA 2013)).
In Residents, a group of community homeowners voluntarily dismissed
its suit when the homeowner’s association became involved in the litigation
asserting the same claims as the group.
Id. This essentially mooted the
group’s claims, however, as the Second District noted, it did not result in the
defendant “achiev[ing] its objective of making the litigation go away as a
result of the dismissal—the same claims remained pending against [the
defendant].” Id.; see also Tubbs,
125 So. 3d at 1041–42 (holding that
defendant was not the prevailing party in a foreclosure case where the
plaintiff voluntarily dismissed its claims after a third party successfully
foreclosed on its superior mortgage lien); Kelly, 159 So. 3d at 407 (holding
that “in a situation where both [parties] compromised in effectively agreeing
to a settlement to end their litigation, we will not hold [one party] responsible
for payment of [the other party]’s attorneys’ fees”). Giordano does not assert
either that his claims against Catamaran became moot or that the parties
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stipulated to a dismissal pursuant to a settlement, therefore these exceptions
to the general rule do not apply. 1
Applying the general Thornber rule—with those limited exceptions
discussed in the Residents/Tubbs/Kelly line of cases—we therefore
conclude that Catamaran is the prevailing party and is entitled to its
reasonable attorney’s fees.
Reversed and remanded with instructions.
1
We distinguish on their facts the cases of Simmons v. Schimmel,
476 So.
2d 1342 (Fla. 3d DCA 1985), and Englander v. St. Francis Hospital, Inc.,
506
So. 2d 423 (Fla. 3d DCA 1987) (en banc). Without reaching the issue,
because it is unnecessary for us to do so, we note that our sister courts have
rejected attempts to extend the holdings in these cases beyond the medical
malpractice statute discussed in each case. See Alhambra Homeowners
Ass’n v. Asad,
943 So. 2d 316, 320–21 (Fla. 4th DCA 2006); Dam v. Heart
of Fla. Hosp., Inc.,
536 So. 2d 1177, 1178 (Fla. 2d DCA 1989); Vidibor v.
Adams,
509 So. 2d 973, 974 (Fla. 5th DCA 1987).
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