County Civil Court: ATTORNEY’S FEES – voluntary dismissal – trial court erred as a matter of law in finding attorney’s fees could not be considered an element of costs pursuant to Florida Rules of Civil Procedure, Rule 1.420(d) – Florida Statute, § 83.48, defines costs as including attorney’s fees- Order Denying Attorney’s Fees reversed.  Haige v. Schueder, No. 02-8979CI-88B (Fla. 6th Cir. App. Ct. August 28, 2004). 









vs.                                                                                Appeal No. 02-8979CI-88B

                                                                                    UCN No. 522002CA008979XXCICI





Opinion filed _______________________


Appeal from Order Denying Attorney’s Fees

Pinellas County Court

Judge Henry J. Andringa


Warren J. Knaust, Esquire

Attorney for Appellant


Elizabeth G. Mansfield, Esquire

Attorney for Appellee




            THIS CAUSE came before the Court on appeal, filed by Harry Haige (Haige), from the Order Denying Motion for Attorney’s Fees and Granting Costs (Order), entered August 14, 2002.   Upon review of the briefs, the record and being otherwise fully advised, the Court reverses the trial court’s ruling as set forth below.

            The pertinent facts are that the Appellee, Ilse Shueder (Shueder), filed a complaint for eviction against Haige, who responded by filing an answer with affirmative defenses and a motion to dismiss.  Prior to the hearing on Haige’s motion to dismiss, Haige moved out of the property resulting in Shueder filing a Notice of Voluntary Dismissal.  Haige then filed a Motion to Tax Costs and Attorney’s Fees pursuant to Florida Rule of Civil Procedure, Rule 1.420(d), and Florida Statutes, § 83.49.  The trial court awarded costs in the amount of $68.00, but decline to award attorney’s fees finding that attorney’s fees could not be considered “costs” since no judgment was entered.   

            The sole issue raised by Haige is whether the trial court erred, as a matter of law, in finding that attorney’s fees were not an element of costs since a judgment or decree was not entered.  It is undisputed that Haige was not a “prevailing party” in the proceedings below so could not recover costs pursuant to Florida Statutes, § 83.59(4).  See Fla. Stat. § 83.59(4)(stating that the prevailing party is entitled to have judgment for costs); see also Burnstein v. 5838 Condominium, Inc., 430 So.2d 572 (Fla. 3d DCA 1983)(stating that in landlord-tenant action there can be no prevailing party for the purpose of awarding attorney’s fees until there is an end to the litigation as by judgment or other dispositive order).  Further, it is undisputed that Haige could only recover attorney’s fees as an element of costs pursuant to Florida Rule of Civil Procedure, Rule 1.420(d), which provides that “[c]osts in any action dismissed under this rule shall be assessed and judgment for costs entered in that action.” 

            As set forth in the Order, the trial court denied attorney’s fees based on the language in

Florida Statutes, § 83.48, which states, “[i]n any civil action brought to enforce the provisions of the rental agreement or this part, the party in whose favor a judgment or decree has been rendered may recover costs, including attorney’s fees, from the non prevailing party.” (e.s.)  As set forth in the Order, a judgment was not entered, or rendered, by the trial court.  However, the statutory language does define costs as “including attorney’s fees.”  Case law also holds that § 83.48 treats attorney’s fees as an item of court costs.  See Xanadu of Cocoa Beach, Inc. v. Lenz, 504 So.2d 518, 520 (Fla. 5th DCA 1987)(finding that under section 83.48 attorney’s fees are provided by statute as an item of costs); see also Grant v. Morrison, 9 Fla. L. Weekly Supp. 68 (Fla. Broward Cty. Ct. Nov. 9, 2001)(finding that attorney’s fees are a part of costs in landlord-tenant actions and must be awarded following plaintiff’s voluntary dismissal); Scott v. McGregor, 7 Fla. L. Weekly Supp. 556 (Fla. Broward Cty. Ct. May 31, 2000)(same); Rev v. Jean-Jacques, 5 Fla. L. Weekly Supp. 771b (Fla. Broward Cty. Ct. June 15, 1998)(same); Windsor v. Rivera, 5 Fla. L. Weekly Supp. 846b (Fla. Broward Cty. Ct. Sept. 1, 1998)(same); Metropolitan Dade County v. Daniels, 3 Fla. L. Weekly Supp. 127 (Fla. Dade Cty. Ct. Feb. 21, 1995)(same); Metropolitan Dade County v. Herndon, 48 Fla. Supp. 2d 165 (Fla. Dade Cty. Ct. March 15, 1991)(same). [1]  

            Since the statute provides that attorney’s fees are recoverable as costs, then the trial court had no discretion but to award fees pursuant to Florida Rule of Civil Procedure, Rule 1.420(d).  See Wilson v. Rose Printing Company, Inc., 624 So.2d 257, 258 (Fla. 1993).  In Wilson, the Florida Supreme Court analyzed an employment agreement which provided that “the prevailing party shall be entitled to recover all costs incurred, including reasonable attorney’s fees.”  (e.s.)  The Court found it irrelevant that there was no prevailing party following the plaintiff’s voluntary dismissal reasoning that Rule 1.420(d), not the employment agreement, entitled the defendant to costs.  In finding that attorney’s fees were taxable as costs, the Court concluded “[w]e look to the agreement merely to define costs, not to determine the circumstances under which costs may be awarded.”  Likewise, that there was no judgment or decree entered in this case is irrelevant since § 83.48 defines costs to include fees.     

            In so finding, the Court notes that semantics, i.e. the use of the word including versus and, is pivotal to the appropriate analysis. (e.s.)  For example, in Nolan v. Altman, 449 So.2d 898 (Fla. 1st DCA 1984), the First District Court of Appeal held that Florida Statutes,

§ 501.2105(5), precluded the award of “attorney’s fees and costs,” since there was no there was no prevailing party. (e.s.)  However, unlike § 83.48, attorney’s fees were not defined as costs in the statute.  Similarly, the Third District Court of Appeal in Puig v. Pasteur Health Plan, Inc., 640 So.2d 101 (Fla. 3d DCA 1994), relying on the Wilson decision, found that the defendant was not entitled to attorney’s fees in an HMO action that was voluntarily dismissed since the statute, which provided for the recovery of “reasonable attorney’s fees and court costs,” did not define costs to include attorney’s fees.  (e.s.)  Accordingly, the Court finds that the trial court erred as a matter of law in finding that attorney’s fees could not be considered costs in the proceedings below.

           It is therefore,  

           ORDERED AND ADJUDGED that the Order Denying Motion for Attorney’s Fees and Granting Costs is hereby reversed and this cause is remanded for action consistent with this order and opinion.  It is further,

           ORDERED AND ADJUDGED that the Appellant’s Motion to Tax Attorney’s Fees is granted.  The trial court shall determine the amount of reasonable appellate attorney’s fees to be awarded.

           DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of August 2004.






                                                            DAVID A. DEMERS

                                                            Circuit Judge, Appellate Division



Copies furnished to:


Warren J. Knaust, Esquire

2167 Fifth Avenue North

St. Petersburg, FL  33713


Elizabeth G. Mansfield, Esquire

6528 Central Avenue, Suite B

St. Petersburg, FL  33707

[1] These county court decisions, all entered in Dade and Broward Counties, are obviously not binding on this Court.  However, these decisions are informative given the identical fact pattern involved.