County Civil Court: ATTORNEY’S FEES – voluntary dismissal – Appellant/Defendant was entitled to attorney’s fees as part of costs pursuant to Florida Statutes, § 83.48, after Plaintiff took voluntary dismissal of eviction complaint – Order Denying Attorney’s Fees reversed.  Walker v. Greenbench Realty and Property Management, Inc., No. 04-0087AP-88A (Fla. 6th Cir. App. Ct. December 16, 2005). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

 IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

KIMBERLY WALKER,

 

                        Appellant,

 

vs.                                                                                Appeal No. 04-0087AP-88A

                                                                                    UCN 522004AP000087XXXXCV

GREENBENCH REALTY AND

PROPERTY MANAGEMENT, INC.,

                       

                        Appellee.

______________________________________/

 

Opinion Filed  ______________

 

Appeal from Final Judgment

Pinellas County Court

Judge Walt Fullerton

 

Lynn E. Hanshaw, Esq.

Attorney for Appellant

 

Daniel J. Kortenhaus, Esq.

Attorney for Appellee

 

ORDER AND OPINION

 

            This matter is before the Court on the appeal of Kimberly Walker (Walker), the defendant below, from the Order Denying Motion for Attorney’s Fees entered November 3, 2004.  Having reviewed the briefs, the record, and pertinent legal authority, and being otherwise fully advised, this Court reverses the trial court’s ruling as set forth below.

            Appellee, Greenbench Realty and Property Management (Greenbench), filed a complaint for residential eviction against Walker, who timely filed an answer raising affirmative defenses and a motion to dismiss.  Just prior to trial, Greenbench filed a Notice of Voluntary Dismissal, and the court dismissed the action without prejudice.  Walker then filed a Motion for Attorney’s Fees and Costs (Motion) pursuant to Florida Statutes section 83.48 and Florida Rules of Civil Procedure 1.420 and 1.525.[1]

            The trial court determined that Walker was entitled to costs under Rule 1.420 because the rule awards costs for a dismissal regardless of whether it is voluntary.   However, the court found no basis on which to award attorney’s fees because Walker was not a “prevailing party” under section 83.48, which provides, “In 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 reasonable court costs, including attorney’s fees, from the nonprevailing party.”  Fla. Stat. § 83.48 (2004).

            Thus, Walker has focused her appeal on whether she qualifies as a “prevailing party” under section 83.48.  However, the Court notes that in her Motion, she also sought fees pursuant to Rule 1.420 on the basis of Wiggins v. Wiggins, 446 So. 2d 1078 (Fla. 1984).  In Wiggins, the Supreme Court determined that while Rule 1.420 does not expressly contemplate attorney’s fees and such fees are not normally encompassed by the term “costs,” “when the legislature has specifically defined attorney’s fees as part of the costs, then the assessment of attorney’s fees after a case has been voluntarily dismissed is with the purview of Rule 1.420(d).”  Id. at 1079.

            Therefore, although not succinctly stated, the Court finds that Walker has raised the argument that, regardless of whether she is a prevailing party, she is nonetheless entitled to attorney’s fees because the legislature specifically defined fees as a part of the costs allowed under section 83.48.  The Court agrees, finding that both the statutory language and case law support Walker’s position.

            First, the explicit language of section 83.48 provides for the recovery of “reasonable court costs, including attorney’s fees.”  § 83.48 (emphasis added).  The use of the term “including” clearly brings attorney’s fees within the ambit of costs recoverable under Rule 1.420(d), regardless of whether Walker is a prevailing party.  See Wilson v. Rose Printing Co., 624 So. 2d 257 (Fla. 1993) (where employment agreement entitled prevailing party to all costs incurred, including attorney’s fees, fees were part of the costs recoverable under Rule 1.420(d) after a voluntary dismissal).

            Further, the Court finds highly persuasive several court decisions—including one from this very circuit—that have determined that attorney’s fees are part of the costs defined under section 83.48.  See Haige v. Schueder, 12 Fla. L. Weekly Supp. 196a (Fla. 6th Cir. App. Ct. Aug. 28, 2004); see also Xanadu of Cocoa Beach, Inc. v. Lenz, 504 So. 2d 518, 519 (Fla. 5th DCA 1987)(attorney’s fees are recoverable as costs under section 83.48); Grant v. Morrison, 9 Fla. L. Weekly Supp. 68a (Fla. Broward Cty. Ct. Nov. 9, 2001)(section 83.48 includes attorney’s fees as part of costs to which defendant is entitled under Rule 1.420(d) after a voluntary dismissal); Metropolitan Dade Co. v. Daniels, 3 Fla. L. Weekly Supp. 127 (Fla. Dade Cty. Ct. Sept. 1, 1998) (same).

            Thus, as section 83.48 defines attorney’s fees as part of costs, “the trial court had no discretion but to award fees pursuant to Florida Rule of Civil Procedure, Rule 1.420(d).”  Haige.  Consequently, the trial court erred in determining that there was no authority on which to award Walker attorney’s fees.

            It is therefore

            ORDERED AND ADJUDGED that the Order Denying Defendant’s Motion for Award of Attorney’s Fees is REVERSED and that this cause is remanded to the trial court for action consistent with this Order and Opinion.

            It is further

            ORDERED AND ADJUDGED that Appellant’s Request for Oral Argument is DENIED.

            It is further

            ORDERED AND ADJUDGED that Appellant’s Motion for Appellate 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 Clearwater, Pinellas County, Florida this ________ day of _____________, 2005.

 

                                                ________________________________

                                                JOHN A. SCHAEFER

                                                Circuit Judge, Appellate Division

 

 

 

_______________________________                      ______________________________

LAUREN LAUGHLIN                                              JAMES CASE

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division

 

Copies to:

Judge Walt Fullerton

Lynne E. Hanshaw, Esq.                                               Daniel J. Kortenhaus, Esq.

314 S. Missouri Ave., Suite 109                                   6365 53rd St. N.

Clearwater, FL  33756                                     Pinellas Park, FL  33781



[1] Williams also initially sought fees and costs pursuant to section 57.105, Florida Statutes; however, she later amended her motion to eliminate a claim under this section.