SARA WARD v. RIVKA LIEBER, as Personal Representative of the ESTATE OF LILLIAN K. WASSERMAN ( 2023 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
SARA WARD,
Appellant,
v.
RIVKA LIEBER, as Personal Representative of the
ESTATE OF LILLIAN K. WASSERMAN,
Appellee.
No. 4D22-5
[January 4, 2023]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Paige Gillman Kilbane, Judge; L.T. Case No.
502019CA003353.
Jennifer S. Carroll of Law Offices of Jennifer S. Carroll, P.A., Jupiter,
for appellant.
Ellen S. Morris of Cozen O’Connor, Boca Raton, for appellee.
MAY, J.
The defendant appeals an order on rehearing denying her motion for
attorney’s fees after her motion was granted at the original hearing. She
argues the trial court erred in granting the plaintiff’s motion for rehearing
and denying the defendant’s motion for attorney’s fees. We agree and
reverse.
The underlying case involved a dispute between siblings over the
administration of their late mother’s estate. The plaintiff filed a multi-
count complaint against the defendant seeking damages pursuant to
section 772.11, Florida Statutes (2019), entitled, “Civil remedy for theft or
exploitation.”
The defendant filed a motion to dismiss count three, which the trial
court granted without prejudice on July 31, 2019. The plaintiff ultimately
filed a notice of voluntary dismissal on July 2, 2021.
Within thirty days of the notice of voluntary dismissal, the defendant
moved for attorney’s fees. The court granted the defendant’s motion. The
plaintiff then moved for rehearing. Without holding a hearing, the trial
court reversed itself, granted the plaintiff’s motion for rehearing, and
entered an order denying the defendant’s motion for attorney’s fees.
The defendant filed a motion for rehearing, which the trial court denied.
From this order, the defendant now appeals.
The defendant claims the plaintiff’s notice of voluntary dismissal filed
on July 2, 2021, triggered the 30-day time limit for filing a motion for
attorney’s fees. The plaintiff responds the trial court properly denied
defendant’s motion for attorney’s fees because the July 31, 2019, order
dismissing count three without prejudice triggered the 30-day time limit
for filing a motion for attorney’s fees, not the subsequent notice of
voluntary dismissal of the entire action.
We have de novo review of this legal question. Evans v. State, 300 So.
3d 671, 677 (Fla. 4th DCA 2020). We agree with the defendant and
reverse.
Florida Rule of Civil Procedure 1.525 provides:
Any party seeking a judgment taxing costs, attorneys’ fees, or
both shall serve a motion no later than 30 days after filing of
the judgment, including a judgment of dismissal, or the
service of a notice of voluntary dismissal, which judgment or
notice concludes the action as to that party.
(Emphasis added).
An order is final if it “disposes of the cause on its merits leaving no
questions open for judicial determination except for the execution or
enforcement of the decree if necessary.” Nero v. Cont’l Country Club R.O.,
Inc., 979 So. 2d 263, 266 (Fla. 5th DCA 2007) (quoting Welch v. Resol. Tr.
Corp., 590 So. 2d 1098, 1099 (Fla. 5th DCA 1991)).
Here, the trial court dismissed count three of a multi-count complaint
on July 31, 2019, but that count related to the same common set of facts
as the remaining counts. And the trial court’s order dismissing count
three was without prejudice and with leave to amend.
When an order partially dismisses a complaint leaving claims related to
the same facts and parties, the order is non-final and not directly
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appealable. 4040 Ibis Circle, LLC v. JP Morgan Chase Bank, 193 So. 3d
957, 959 (Fla. 4th DCA 2016). Thus, the order disposing of count three
was neither final nor did it conclude the action as to either party. The
order therefore did not trigger the thirty-day time limit within which to file
a motion for attorney’s fees, pursuant to Florida Rule of Civil Procedure
1.525.
This case is similar to Arango v. Cainas, 666 So. 2d 970 (Fla. 3d DCA
1996). There, the trial court granted the defendant’s motion for partial
summary judgment on a complaint that contained multiple interrelated
counts. Id. at 971. The trial court awarded the defendant attorney’s fees
pursuant to the trial court’s partial summary judgment order despite the
remaining pending counts. Id.The Third District held the summary judgment order was not final
because interrelated claims remained pending. Id. The appellate court
also concluded the attorney’s fees award was premature until the trial
court disposed of all the counts in the complaint. Id. The appellate court
therefore reversed the attorney’s fees award.
Here, the defendant correctly waited to file her motion for attorney’s
fees until the notice of voluntary dismissal was filed because the earlier
order dismissing count three without prejudice was not final and did not
dispose of the entire action. Had the motion been filed after the dismissal
of count three, it would have been premature.
The plaintiff relies heavily on Landmark at Hillsboro Condominium
Ass’n, Inc. v. Candelora, 911 So. 2d 1272 (Fla. 4th DCA 2005). While at
first blush, Landmark would appear to warrant an affirmance, its facts
render its holding inapplicable to this case.
There, seven condominium unit owners brought a derivative claim
against Landmark and others. By agreed order on February 9, 2004, the
complaint was dismissed with leave to amend. In the amended complaint,
the plaintiffs dropped four of their claims against Landmark. Landmark
made several requests for fees under different statutes and at different
times. On March 23, 2004, Landmark filed a “Verified Motion for Attorneys’
Fees and Costs,” seeking fees as the prevailing party under sections
718.303(1) and 57.105, Florida Statutes (2004).
Landmark argued it became a prevailing party within the meaning of
section 718.303(1) when, following the dismissal of the original complaint
on February 9, 2004, the amended complaint dropped four counts. The
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trial court denied fees to Landmark without explanation. Landmark
appealed.
The issue argued on appeal was not whether the February 9th order
was final. Indeed, it was not. There was neither a judgment on the merits
nor a notice of voluntary dismissal to trigger Rule 1.525.
The issue was whether the trial court’s dismissal without prejudice
made the defendant the “prevailing party” under section 718.303 and
whether the defendant requested attorney’s fees in a timely manner
following that order. The parties never argued, nor did we discuss, the
finality, or lack thereof, of the February 9th Agreed Order of Dismissal
without Prejudice. For this reason, Landmark is not controlling.
Here, the trial court got it right the first time when it granted the
defendant’s motion for attorney’s fees. It erred the second time when it
granted plaintiff’s motion for rehearing, reversed itself, and denied the
defendant’s motion for fees. All the counts in the complaint involved the
same facts and the same parties. See Altair Maint. Servs., Inc. v. GBS
Excavating, Inc., 655 So. 2d 1281, 1281-82 (Fla. 4th DCA 1995). Thus,
the trial court’s order dismissing count three was not a final order and did
not dispose of the action for either party. See Nero, 979 So. 2d at 266. For
this reason, the order did not trigger the thirty-day time frame for filing a
motion for attorney’s fees under Florida Rule of Civil Procedure 1.525.
Instead, the plaintiff’s notice of voluntary dismissal disposed of the
action as to both parties and triggered the 30-day time frame for filing the
attorney’s fees motion. See Fla. R. Civ. P. 1.525; Paige v. Am. Sec. Ins. Co.,
987 So. 2d 128 (Fla. 4th DCA 2008).
We reverse and remand the case for the trial court to vacate the order
denying the defendant’s motion for rehearing, vacate its order on the
plaintiff’s motion for reconsideration/rehearing and reenter its initial order
granting defendant’s motion for attorney’s fees and for further proceedings
consistent with this opinion. 1
Reversed and remanded for further proceedings consistent with this
opinion.
GERBER, J., concurs.
ARTAU, J., concurs specially with opinion.
1
Because our decision on this issue disposes of the appeal, we do not reach the
second issue.
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ARTAU, J., concurring specially.
I concur with the majority’s reversal of the denial of the defendant’s
timely filed motion for attorney’s fees. However, I do so without joining the
majority’s basis for distinguishing Landmark at Hillsboro Condominium
Association, Inc. v. Candelora, 911 So. 2d 1272 (Fla. 4th DCA 2005).
Instead, I concur because Landmark has been superseded by the 2010
amendment to Florida Rule of Civil Procedure 1.525.
As the majority points out, “[t]here was neither a judgment on the
merits nor a voluntary dismissal in Landmark to trigger [r]ule 1.525.” In
other words, there was never a judgment or final dismissal in Landmark
triggering the 30–day deadline provided by rule 1.525 to file a motion for
attorney’s fees. Yet, Landmark concluded that the motion for attorney’s
fees was untimely based on its interpretation of an earlier version of rule
1.525, the text of which did not expressly trigger the running of the 30–
day deadline upon the filing of a judgment or voluntary dismissal
concluding the action as to a party. Landmark, 911 So. 2d at 1273(interpreting the previous version of rule 1.525 which provided “[a]ny party
seeking a judgment taxing costs, attorney’s fees, or both shall serve a
motion within 30 days after filing of the judgment, including a judgment
of dismissal, or the service of a notice of voluntary dismissal.” (alteration
in original)). The version of rule 1.525 interpreted in Landmark was
subsequently amended by our supreme court to clarify that the 30–day
deadline to move for attorney’s fees is not triggered until a “judgment or
notice [of voluntary dismissal] concludes the action as to that party.” See
In re Amends. to the Fla. Rules of Civ. Proc., 52 So. 3d 579, 590 (Fla. 2010)
(amending rule 1.525 to add the clarifying phrase “which judgment or
notice concludes the action as to that party.”). Accordingly, Landmark has
been superseded by rule change and has no precedential value in
interpreting the current version of the amended rule.
While I concur in result with the majority, I do so because Landmark
has been superseded by the 2010 amendment to rule 1.525. The trial
court in this case did not have the benefit of an opinion clarifying that
Landmark is of no precedential value in interpreting the amended rule. I
am confident that if the trial court had the benefit of a clarifying opinion,
it would not have denied the timely filed motion for attorney’s fees.
* * *
Not final until disposition of timely filed motion for rehearing.
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