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. 3D19-2429
Lower Tribunal No. 17-12030
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John Annesser,
Appellant,
vs.
Innovative Service Technology Management Services Inc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Antonio
Arzola, Judge.
Annesser Armenteros, PLLC, and John W. Annesser, Miguel
Armenteros and Megan Conkey Gonzalez, for appellant.
GrayRobinson P.A., and Gary M. Carman and Richard F. Danese , for
appellee.
Before LINDSEY, LOBREE, and BOKOR, JJ.
BOKOR, J.
John Annesser, a partner and shareholder of the law firm Annesser
Armenteros, PLLC, appeals the trial court’s denial of his motion for costs and
fees following dismissal of a complaint in which he was named as a
defendant. As explained below, we affirm as to the denial of fees, but
reverse and remand as to the denial of costs.
BACKGROUND
Innovative Service Technology Management Services added
Annesser as a defendant in the first amended complaint. Annesser served
two offers of judgment under section 768.79, Florida Statutes, and Innovative
Services rejected both. Subsequently, Annesser moved to dismiss, which
the trial court granted, without prejudice. This dismissal without prejudice
constituted an involuntary dismissal under Florida Rule of Civil Procedure
1.420(b). Innovative Services filed a second amended complaint which
didn’t include Annesser as a defendant.1
After the conclusion of the matter as it pertained to him, Annesser
sought costs and fees. Annesser sought entitlement to costs under section
57.041, Florida Statutes, and Rule 1.420(d), and fees under section 768.79,
1
Annesser filed a motion seeking a dismissal with prejudice, which was
never heard or ruled on by the trial court, and therefore not relevant to this
appeal.
2
Florida Statutes, and Rule 1.420(a)(1). The trial court denied the motion,
equating the removal of Annesser from the second amended complaint to a
dismissal without prejudice that did not operate as an adjudication on the
merits entitling Annesser to costs or fees. This appeal followed.
ANALYSIS
Our review of a trial court’s determination as to a party’s entitlement to
costs and fees under a statute is a question of law reviewed de novo. See,
e.g., Magdalena v. Toyota Motor Corp.,
253 So. 3d 24, 25 (Fla. 3d DCA
2017). Annesser first claims entitlement to court costs pursuant to section
57.041, Florida Statutes, and Florida Rule of Civil Procedure 1.420(d).
Section 57.041(1) provides that “[t]he party recovering judgment shall
recover all his or her legal costs and charges which shall be included in the
judgment.” As noted above, the trial court entered a dismissal without
prejudice. An involuntary dismissal without prejudice doesn’t constitute a
judgment on the merits. Importantly, the court entered the involuntary
dismissal. Therefore, the subsequent dismissal of Annesser by International
Services, after the court’s involuntary dismissal without prejudice, fails to
trigger the adjudication on the merits “second dismissal” provision under
Rule 1.420(a)(1). See Britt v. Knowles,
792 So. 2d 635, 635 (Fla. 4th DCA
2001); see also Bright v. Baltzell,
65 So. 3d 90, 93 (Fla. 4th DCA 2011)
3
(finding that voluntary dismissal following prior administrative closure of case
was not a “second dismissal” constituting an “adjudication on the merits” as
described in Rule 1.420(a)(1), because the court, not the plaintiff, dismissed
the prior action). So, 57.041(1) fails as a basis for costs because no
adjudication on the merits occurred.
But the inquiry doesn’t end there for costs. Rule 1.420(d) provides that
“[c]osts in any action dismissed under this rule shall be assessed and
judgment for costs entered in that action, once the action is concluded as to
the party seeking taxation of costs.” This portion of the rule makes no
distinction between final adjudication on the merits and dismissal without
prejudice, nor does it matter whether such dismissal occurred through an
involuntary dismissal by the court or a voluntary dismissal by a plaintiff.2
Here, the court acted under Rule 1.420(b) and involuntarily dismissed the
amended complaint against Annesser, without prejudice. Since the action
concluded with respect to Annesser, Rule 1.420(d) mandates entitlement to
costs. Wilson v. Rose Printing Co.,
624 So. 2d 257, 258 (Fla. 1993) (“Rule
1.420(d) is unambiguous— costs are to be assessed in the action that is the
2
We have held that a party dropped pursuant to Florida Rule of Civil
Procedure 1.250(b) is effectively “dismissed” within the meaning of Rule
1.420(a)(1), with the “same entitlement to costs which would have been
enjoyed had the dismissal occurred entirely under Rule 1.420(a)(1).” Bay
View Inn, Inc. v. Friedman,
545 So. 2d 417, 419 (Fla. 3d DCA 1989).
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subject of the voluntary dismissal. . . . Where a nondismissing party seeks
costs under this rule, a court is without authority to defer assessment
pending disposition of a subsequent action.”); Peraza v. Citizens Prop. Ins.
Corp.,
973 So. 2d 490, 492 (Fla. 3d DCA 2007) (quoting Wilson and
explaining that “[o]nce Citizens filed its voluntary dismissal, Peraza was
entitled to costs”). Accordingly, the trial court erred in denying entitlement to
costs under Rule 1.420(d).
However, we affirm the trial court’s denial of Annesser’s claim for
attorney’s fees. Annesser asserts an entitlement to fees under section
768.79, the offer of judgment statute. Section 768.79 entitles a defendant to
an award of attorney’s fees and costs where the defendant filed an offer of
judgment, not accepted by the plaintiff within 30 days, and “(1)
the judgment is one of no liability; (2) the judgment obtained by the plaintiff
is at least twenty-five percent less than the defendant's offer; or (3) the cause
of action was dismissed with prejudice.” Smith v. Loews Miami Beach Hotel
Operating Co.,
35 So. 3d 101, 103 (Fla. 3d DCA 2010) (emphasis omitted).
Here, entitlement to fees under the offer of judgment statute fails for the
same reason explained in relation to the entitlement to costs under section
57.041(1). Nothing on the record constitutes a dismissal with prejudice or
final judgment or adjudication on the merits in favor of Annesser. To trigger
5
the offer of judgment statute, the dismissal must be with prejudice,
“represent[ing] a judgment of no liability.” See
id. at 103 (relying on MX Invs.,
Inc. v. Crawford,
700 So. 2d 640, 642 (Fla. 1997). The court dismissed
Annesser without prejudice and he simply remained dismissed when
International Services chose not to add him to the subsequent complaint.3
Accordingly, we affirm the trial court’s denial of entitlement to fees.
Affirmed in part, reversed in part, and remanded.
3
The court ordered Annesser’s involuntary dismissal without prejudice.
International Services’ affirmative representation that it wasn’t adding
Annesser to the second amended complaint, at most, established that the
action “[was] concluded as to the party [Annesser] seeking taxation of costs.”
Fla. R. Civ. P. 1.420(d). But, as explained, it didn’t count as a second
dismissal triggering the adjudication on the merits language of Rule
1.420(a)(1).
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