Third District Court of Appeal
State of Florida
Opinion filed August 17, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1553
Lower Tribunal No. 20-986
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The Collins Condominium Association, Inc., etc.,
Appellant,
vs.
Fernando Riveiro, etc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, David C.
Miller, Judge.
Cole, Scott & Kissane, P.A., and Lissette Gonzalez and Carly M.
Weiss, for appellant.
Tripp Scott, P.A., and John M. Mullin and Robert L. Scheppske III (Fort
Lauderdale), for appellee.
Before EMAS, SCALES and GORDO, JJ.
PER CURIAM.
Appellant Collins Condominium Association, Inc. (“Association”), the
defendant below, appeals a June 29, 2021 final judgment, and an underlying
January 15, 2021 entitlement fee order, awarding prevailing party attorney’s
fees to the plaintiff below, appellee Fernando Riveiro. The Association
argues that because Riveiro voluntarily dismissed his complaint against the
Association, it, rather than Riveiro, was the prevailing party below and,
therefore, the trial court should have granted the Association’s fees motion
and awarded it prevailing party attorney’s fees in this case.
While a plaintiff’s voluntary dismissal of a complaint normally will
render a defendant the “prevailing party” for the purposes of attorney’s fee
entitlement, see Thornber v. City of Ft. Walton Beach,
568 So. 2d 914, 919
(Fla. 1990), an exception to this general rule applies where the voluntary
dismissal occurs because the defendant’s actions effectively mooted the
case. See Padow v. Knollwood Club Ass’n,
839 So. 2d 744, 746 (Fla. 4th
DCA 2003) (concluding that the defendant unit owner “cannot be a
‘prevailing party’ within the meaning of section 718.303(1) [of the Florida
Statutes] because he paid the substantial part of the association’s claim for
delinquent assessments prior to the voluntary dismissal”). In this case,
Riveiro’s complaint sought to enjoin the Association “from denying [Riveiro]
the right to install an effective safety barrier that satisfies local building codes
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around the perimeter of his outdoor balcony/porch area without time and use
restrictions.” After the Association installed pool alarm devices on the sliding
glass doors of Riveiro’s units, Riveiro voluntarily dismissed his complaint.
Notwithstanding that City of Miami Beach code enforcement proceedings
initiated by Riveiro may have been the direct catalyst for the Association’s
actions, the trial court concluded that Riveiro had substantially prevailed in
the litigation by obtaining the relief Riveiro had sought, and that Riveiro
voluntarily dismissed his complaint not because he was destined to lose on
the merits, but, rather, because the Association’s actions had rendered his
lawsuit moot.
We have carefully reviewed the record in this case and are compelled
to affirm because, under this case’s unique facts and procedural
background, we are unable to conclude that the trial court, in determining
that Riveiro was the prevailing party on the significant issue in the litigation,
abused its discretion. See Moritz v. Hoyt Enters., Inc.,
604 So. 2d 807, 810
(Fla. 1992) (“[T]he party prevailing on the significant issues in the litigation is
the party that should be considered the prevailing party for attorney’s fees.”);
Olson v. Pickett Downs Unit IV Homeowner's Ass’n,
205 So. 3d 869, 872
(Fla. 5th DCA 2016) (“A trial court’s determination as to which party prevailed
on the significant issues tried before it is reviewed under the abuse of
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discretion standard.”); Bessard v. Bessard,
40 So. 3d 775, 778 (Fla. 3d DCA
2010) (concluding that the trial court did not abuse its discretion in
determining the plaintiffs were entitled to attorney’s fees and costs as the
prevailing party where the defendant’s post-suit “actions necessarily mooted
the complaint and was the functional equivalent of a judgment or verdict in
favor of the [plaintiffs]”); Payne v. Cudjoe Gardens Prop. Owners Ass’n,
875
So. 2d 669, 671 (Fla. 3d DCA 2004) (concluding, in an injunction action to
enforce deed restrictions, that the trial court did not abuse its discretion in
finding the plaintiff homeowner association was the prevailing party where
the defendant homeowners had mooted the litigation by voluntarily
complying with the deed restrictions); Augustin v. Health Options of S. Fla.,
Inc.,
580 So. 2d 314, 314 (Fla. 3d DCA 1991) (determining that the
defendant’s full payment of the amounts sought “necessarily mooted the
instant action” and “therefore entitled the plaintiff to an award of attorney’s
fees . . . as the prevailing party below”).
Affirmed.
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