Byron HENN, Appellant, v. ULTRASMTH RACING, L.L.C.,..., 2010 WL 3805406...

2014 Thomson Reuters. No claim to original U.S. Government Works. 1

zo1o W 8oqo6 (Iu.App. q DIsL.) (AppeIIuLe BrIeI)
DIsLrIcL CourL oI AppeuI oI IorIdu, ourLI DIsLrIcL.
Byron HENN, AppeIIunL,
v.
UTRASMTH RACNG, ..C., eLc., AppeIIee.
No. qD1o-z6;q.
AugusL 1, zo1o.
ower Cuse No. ozoo;CAoo1qqXXMB
Initial Brief of Byron Henn
Daniel S. Weinger, Esq., Conrad & Scherer, LLP, Attorneys for Appellant, P.O. Box 14723, Fort Lauderdale, FL 33302, Tel:
(954)462-5500, Fax: (954) 463-9244.
*i TABLE OF CONTENTS
Table of Contents ............................................................................................................................................ i
Table of Authorities ........................................................................................................................................ ii
Points on Appeal ............................................................................................................................................. v
Preface .............................................................................................................................................................. vi
Statement of Case and Facts ........................................................................................................................... 1
Summary of Argument .................................................................................................................................... 5
Argument ......................................................................................................................................................... 6
I. Standard of Review ..................................................................................................................................... 6
II. The Trial Court Erred by Denying Defendant's/Appellant's Motion for Prevailing Party Attorney's Fees
When the Plaintiff Voluntarily Dismissed its Case and Failed to Seek a Timely Review Challenging the
Validity of Said Voluntary Dismissal .............................................................................................................
7
III. Even Under the Trial Court's Revised ORder, the Court Erred by Denying Appellant's Motion for
Prevailing Party Attorney's Fees When Dismissal was Involuntarily Entered as a Sanction ..........................
15
Conclusion ....................................................................................................................................................... 21
Certificate of Service ....................................................................................................................................... 22
Certificate of Type Size and Style .................................................................................................................. 22
*ii TABLE OF AUTHORITIES
Cases
Ajax Paving Indus., Inc. v. Hardaway Co., 824 So. 2d 1026 (Fla. 2d
DCA 2002) ...........................................................................................
14
Alhambra Homeowners Association, Inc. v. Asad, 943 So. 2d 316
(Fla. 4th DCA 2006) ...........................................................................
passim
Baratta v. Valley Oak Homeowners Association, 891 So. 2d 1063
(Fla. 2d DCA 2004) .............................................................................
15
Boca Airport, Inc. v. Roll-N-Roaster of Boca, Inc. 690 So. 2d 640
(Fla. 4th DCA 1997) ...........................................................................
13
Century Constr. Corp. v. Koss, 559 So. 2d 611 (Fla. 1st DCA 1990) . 14
Commonwealth Land Title Ins. Co. v. Freeman, 884 So. 2d 164 (Fla.
2d DCA 2004) .....................................................................................
8
Curbelo v. Ullman, 571 So. 2d 443 (Fla. 1990) .................................. 9
Cushman & Wakefield of Florida, Inc. v. Hughes, 645 So. 2d 1091
(Fla. 4th DCA 1994) ...........................................................................
20
Dep't of Environmental Regulation v. Apelgren, 611 So. 2d 72 (Fla.
4th DCA 1992) ....................................................................................
9
Byron HENN, Appellant, v. ULTRASMTH RACING, L.L.C.,..., 2010 WL 3805406...
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Buncombe v. Adderly, 991 So. 2d 1013 (Fla. 4th DCA 2008) ............. 6
Fiber Crete Homes, Inc. v. Dep't of Transportation, 315 So. 2d 492
(Fla. 4th DCA 1975) ...........................................................................
9
Frazier v. Dreyfuss, 14 So. 3d 1183 (Fla. 4th DCA 2009) .................. 16, 17, 18, 19
Frisard v. Frisard, 497 So. 2d 885 (Fla. 4th DCA 1986) .................... 9
Garcia v. Stewart, 906 So. 2d 1117 (Fla. 4th DCA 2005) .................. 9
Gordon v. Warren Heating & Air Conditioning, Inc., 340 So. 2d
1234 (Fla. 4th DCA 1976) ..................................................................
16
*iii Griffin v. Berkley S. Condo. Ass'n, 661 So. 2d 135 (Fla. 4th
DCA 1995) ...........................................................................................
13
Hatch v. Dance, 464 So. 2d 713 (Fla. 4th DCA 1985) ........................ 13
Hinkley v. Gould, 971 So. 2d 955 (Fla. 5th DCA 2007) ..................... 6
In re Beeman, 391 So. 2d 276 (Fla. 4th DCA 1980) ........................... 9
Landry v. Countrywide Home Loans, Inc., 731 So. 2d 137 (Fla. 1st
DCA 1999) ...........................................................................................
14
Lion Oil Co. v. Tamarac Lakes, Inc. 232 So. 2d 20 (Fla. 4th DCA
1970) ....................................................................................................
14
McKibbin v. Fujarek, 385 So. 2d 724 (Fla. 4th DCA 1980) ................ 9
Mitchell v. Beach Club of Hallandale Condominium Association,
Inc., 17 So. 3d 1265 (Fla. 4th DCA 2009) ..........................................
18, 19
Nicolitz v. Baptist Eye Institute, P.A., 830 So. 2d 270 (Fla. 1st DCA
2002) ....................................................................................................
16
Norland v. Villages at Country Creek Masters Association, Inc., 851
So. 2d 770 (Fla. 2d DCA 2003) ..........................................................
15
Rushing v. Caribbean Food Prods., 870 So. 2d 953 (Fla. 1st DCA
2004) ....................................................................................................
14
San Martin v. DaimlerChrysler Corp., 983 So. 2d 620 (Fla. 3d DCA
2008) ....................................................................................................
6
Save on Cleaners of Pembroke II, Inc. v. Verde Pines City Center
Plaza, LLC, 14 So. 3d 295 (Fla. 4th DCA 2009) ................................
6
Shaw v. Schlusemeyer, 683 So. 2d 1187 (Fla. 5th DCA 1996) ............ 18
Simmons v. Schimmel, 476 So.2d 1342 (Fla. 3d DCA 1985) .............. 14
Stout Jewelers, Inc. v. Corson, 639 So. 2d 82 (Fla. 2d DCA 1994) ..... 16
Stuart Plaza, Ltd. v. Atl. Coast Dev. Corp. of Martin County, 493 So.
2d 1136 (Fla. 4th DCA 1986) .............................................................
13, 14, 16
*iv Vidibor v. Adams, 509 So. 2d 973 (Fla. 5th DCA 1987) ............. 14
Wilson v. Salamon, 923 So.2d 363 (Fla. Oct 20, 2005) ....................... 16
Rules
Fla. R. Civ. P. 1.540 ............................................................................ 8, 9
Fla. R. Civ. P. 1.420 ............................................................................ passim
Fla. R. Civ. P. 1.530 ............................................................................ 8, 12
*v Points on Appeal
THE TRIAL COURT ERRED BY DENYING DEFENDANT'S/APPELLANT'S MOTION FOR PREVAILING
PARTY ATTORNEY'S FEES WHEN THE PLAINTIFF VOLUNTARILY DISMISSED ITS CASE AND FAILED
TO SEEK A TIMELY REVIEW CHALLENGING THE VALIDITY OF SAID VOLUNTARY DISMISSAL
EVEN UNDER THE TRIAL COURT'S REVISED ORDER, THE COURT ERRED BY DENYING APPELLANT'S
MOTION FOR PREVAILING PARTY ATTORNEY'S FEES WHEN DISMISSAL WAS INVOLUNTARILY
ENTERED AS A SANCTION
*vi Preface
This is the Initial Brief of BYRON HENN, Defendant below.
BYRON HENN is referred to as Appellant, Defendant, or his proper name.
Byron HENN, Appellant, v. ULTRASMTH RACING, L.L.C.,..., 2010 WL 3805406...
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ULTRASMITH RACING, LLC, is referred to as Appellee, Plaintiff, or Ultrasmith.
The following symbols will be used:
R. ___ references are to the Record on Appeal.
Unless otherwise indicated, all emphasis is supplied by the writer.
*1 Statement of Case and Facts
On January 30, 2007, Plaintiff Ultrasmith filed a one count Complaint against Defendant Byron Henn for breach of contract
(R. 1-7.) The underlying contract was entered into on November 2, 2006, and was an agreement under which Henn rented a
Radical SR3 racecar from Ultrasmith at Moroso Motorsports Park. (R. 5.) That contract contains a prevailing party attorney's
fees clause. (Id.) As far back as May 23, 2008, the case had progressed to the point where Ultrasmith filed a Notice for Trial.
(R. 57.) After numerous delays by Ultrasmith over the next year-and-a-half, on September 4, 2009, Ultrasmith's original trial
counsel served a Motion to Withdraw. (R. 494.) On September 15, 2009, the court granted the motion and, in the same order,
set the case for a mandatory status conference on October 15, 2009. (Id.) The court further underscored the mandatory nature
of the status conference by specifying that Failure to attend (Plaintiff must have counsel) shall result in dismissal/default/or
other sanctions. (Id.) Ultrasmith was given twenty (20) days to obtain counsel. (Id.)
Due to a scrivener's error in the September 15 order, Ultrasmith failed to appear on October 15, 2009, prompting the court,
in an abundance of caution, to reset the mandatory status conference for October 22, 2009. (R. 498.) Once again, the court
reinforced mandatory by specifying that Failure to attend the October 22 conference (Plaintiff must have counsel) shall result
in dismissal, default, and/or *2 other sanctions. (Id.) At the October 22, 2009, status conference, Barry Smith, the principal
and managing agent of Ultrasmith, appeared without counsel. (R. 500.) Smith indicated to the trial court that he wanted to
dismiss the case. (Id.) Smith, on behalf of Ultrasmith, attempted to submit a written dismissal without prejudice. (R. 501.) The
court recognized that Smith could not submit a written dismissal, but accepted Barry Smith's oral request to dismiss. (R. 500.)
The court therefore dismissed the case without prejudice, but reserved jurisdiction on the issue of attorney's fees and costs.
(Id.) Although the court never used the express term, the wording of the order makes clear that the order reflects a voluntary
dismissal. (Id.) The order in its entirety states:
This case is dismissed without prejudice. Barry Smith, who appeared on behalf of Ultrasmith as its principal and managing
agent, orally agreed to dismissal. Barry Smith tried to submit a written dismissal on behalf of Ultrasmith (a copy of which is
attached); however, he may not do so as Florida law requires corporations to file motions and their court filings through counsel.
The Court reserves jurisdiction to entertain any motions for attorney's fees or costs.
(Id.) Notably, the court did not allude in any way to the possibility that the dismissal was as a sanction. (Id.)
Ultrasmith did not move for rehearing. (R. 1-800.) Instead, on November 19, 2009, Ultrasmith filed a Notice of Appeal from
the order of dismissal. (R. 588.) However, Ultrasmith subsequently took a voluntary dismissal in that appeal. (See Docket in
Ultrasmith Racing, LLC v. Byron Henn, case number 4D09-4788.) *3 For his part, Henn filed a Motion for Attorney's Fees
as the prevailing party. (R. 502.)
On February 10, 2010, almost 100 days after the time for seeking rehearing had expired and after taking a voluntary dismissal of
its appeal, Ultrasmith filed a motion titled Motion to Strike Defendant's Motion for Attorney's Fees and for Clarification. (R.
674.) In that motion, Ultrasmith, no doubt aware that the voluntary dismissal required the court to award prevailing party
attorney's fees to Mr. Henn, challenged the legal sufficiency of the trial court entering a voluntary dismissal based upon the oral
request of a corporate representative. (R. 677.) Although raised under the auspices of a motion to strike rather than a motion
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for rehearing, this legal issue was subsequently briefed extensively by the parties. (R. 681, 703.) Additionally, at the March
16, 2010, hearing on the motions for fees and to strike, the court heard exhaustive arguments on the issue. (R. 733.)
1
At the
end of the hearing, after over an hour of legal argument, the court attempted to clarify that the October 22, 2009, order did not
reflect a voluntary dismissal; rather, the court said that the dismissal was a sanction against Ultrasmith for failing to comply
with its previous two orders by appearing at the mandatory status conference without counsel. (R. 775.) Accordingly, on June
7, 2010, the trial *4 court entered an order granting Ultrasmith's Motion to Strike and denying Henn's Motion for Attorney's
Fees without prejudice. (R. 727.) Based upon the court's newly stated reasoning, Henn filed an Amended Motion for Attorney's
Fees on March 26, 2010, arguing that even if the dismissal was involuntary as a result of a sanction, he was still the prevailing
party for attorney's fees purposes. (R. 712.) After a much shorter hearing, the court entered an order denying that motion. (R.
730.) This appeal follows.
1
For readability purposes, the undersigned has included in the argument section of this brief more specific references to the legal
arguments of the parties and exchanges with the trial court at this hearing.
*5 Summary of Argument
The trial court did not have jurisdiction to change the substance of the October 22, 2009, order from a voluntary dismissal to
an involuntary dismissal for sanctions after the expiration of Ultrasmith's time for filing a motion for rehearing. Although a
court may correct clerical errors or mistakes in a final order under a limited set of circumstances, it may not make changes to a
final order to correct perceived substantive legal errors once the time for rehearing has passed. It is clear from the transcript of
the March 16, 2010, hearing, however, that the court did not merely clarify its original order, but changed the substance of the
order in an effort to correct what the court perceived, after much argument, to be a legal error. Because the October 22, 2009,
final order was a voluntary dismissal, the trial court committed reversible error by denying Defendant's, Byron Henn, Motion
for Attorney's Fess as the prevailing party pursuant to the underlying contract.
Even if the trial court correctly treated the order as an involuntary dismissal for sanctions, the court still erred by denying Henn's
entitlement to fees. As with a voluntary dismissal, under the precedent of this Court, a defendant is considered the prevailing
party for attorney's fees purposes when a plaintiffs case is involuntarily dismissed pursuant to Rule 1.420.
*6 Argument
I. STANDARD OF REVIEW
The proper standard of review from an order determining entitlement to attorney's fees is de novo when that order is based
upon the application of the law rather than a determination of facts. See Save on Cleaners of Pembroke II, Inc. v. Verde Pines
City Center Plaza, LLC, 14 So. 3d 295, 296-97 (Fla. 4th DC A 2009) (finding that the issue of entitlement based upon legal
application of a rule does not involve the discretion typically applied in reviewing the amount of fees); Duncombe v. Adderly,
991 So. 2d 1013, 1015 (Fla. 4th DCA 2008) (We review statutory interpretation de novo); San Martin v. DaimlerChrysler
Corp., 983 So. 2d 620, 622 (Fla. 3d DCA 2008) (holding that issue of entitlement to attorney's fees as the prevailing party
is reviewed de novo); Hinkley v. Gould, 971 So. 2d 955, 956 (Fla. 5th DCA 2007) (when entitlement to attorney's fees is
based on the interpretation of contractual provisions, or a statute, as a pure matter of law, the appellate court undertakes a de
novo review).
*7 II. THE TRIAL COURT ERRED BY DENYING DEFENDANT'S/APPELLANT'S MOTION FOR
PREVAILING PARTY ATTORNEY'S FEES WHEN THE PLAINTIFF VOLUNTARILY DISMISSED ITS CASE
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AND FAILED TO SEEK A TIMELY REVIEW CHALLENGING THE VALIDITY OF SAID VOLUNTARY
DISMISSAL
A. The Trial Court Erred by Making Substantive Changes to its October 22, 2009, Final Order Several Months After the
Expiration of Ultrasmith's Time for Seeking Rehearing
By the express language of the trial court, the October 22, 2009, final order dismissing Ultrasmith's case but reserving
jurisdiction for attorney's fees was a voluntary dismissal. The court ruled that the case is dismissed without prejudice and
followed up with an explanation that although Barry Smith was not permitted to submit a written filing, he orally agreed to
dismiss his case. Although the trial court took the time to handwrite an explanation of its rationale, nowhere in the order does
the court so much as allude to the possibility that the dismissal was entered as a sanction for failure to obtain new counsel. The
only factor mentioned in the order is Smith's oral request to dismiss, which the court supported by attaching the document in
which Smith attempted to submit the voluntary dismissal in writing.
Recognizing the finality of the order, Ultrasmith filed a timely appeal in this Court. On February 8, 2010, nearly four months
after the voluntary dismissal and after inexplicably dismissing its appeal, Ultrasmith filed a motion that it titled *8 Motion
to Strike Defendant's Motion for Attorney's Fees or Clarification. Despite this moniker, Defendant's motion was actually, in
substance, a motion for rehearing that was served almost 100 days after the expiration of the time for filing such a motion. See
Rule 1.530(b). Notwithstanding the court's lack of jurisdiction to revisit the merits of the dismissal, Ultrasmith convinced the
court to do just that. Accordingly, on June 7, 2010, the court entered an order denying Appellant's Motion for Attorney's Fees
based on the correction
2
of what the court perceived to be a legal error in the October 22, 2009, order.
2
For the reasons argued below in response to Appellee's Motion to Strike, Appellant maintains that the trial court's original order
of voluntary dismissal would have been upheld on appeal had Ultrasmith not taken a voluntary dismissal. Be that as it may, those
arguments have been rendered moot. If, as Appellant contends, the trial court was not permitted to change the substance of the order,
then the voluntary dismissal is the law of the case regardless of its propriety. If, on the other hand, the trial court's revised order was a
permissible clarification, then the dismissal was involuntary as a sanction, in which case the only issue remaining is whether the trial
court committed reversible error by denying prevailing party attorney's fees under its new rationale, as discussed in Section III, infra.
Ultrasmith might contend that the trial court was acting under Rule 1.540, which permits a court to correct mistakes or clerical
errors under a limited set of circumstances. The caselaw of both this District and the rest of the state makes clear, however, that
a court may not use Rule 1.540 in place of an untimely motion for rehearing or appeal. See Commonwealth Land Title Ins. Co.
v. Freeman, 884 So. 2d 164, 167 (Fla. 2d DCA 2004) (citing Fiber Crete Homes, Inc. v. Dep't of *9 Transportation, 315 So.
2d 492, 493 (Fla. 4th DCA 1975)). A substantive legal error is not one of the limited circumstances' that can sustain a request
for relief from judgment under rule 1.540. Garcia v. Stewart, 906 So. 2d 1117, 1122 (Fla. 4th DCA 2005) (citing Curbelo v.
Ullman, 571 So. 2d 443, 445 (Fla. 1990), which held that judicial error such as a mistaken view of the law is not one of the
circumstances from which a court can rule under Rule 1.540).
Rule 1,540 is not a substitute for appellate review. Only those orders which result from oversight, neglect or accident, as
opposed to judicial error, may be remedied under this rule. In re Beeman, 391 So. 2d 276, 280 (Fla. 4th DCA 1980). Moreover,
a trial court does not have jurisdiction to change provisions in a final judgment under the guise of a clerical mistake. See Dep't of
Environmental Regulation v. Apelgren, 611 So. 2d 72, 73 (Fla. 4th DCA 1992) (citing Frisard v. Frisard, 497 So. 2d 885, 887
(Fla. 4th DCA 1986)). When a trial court's order under the Rule goes beyond the correction of a technical error and actually
modifies the substance of a record the court has acted in excess of the power conferred upon it by the rule. McKibbin v. Fujarek,
385 So. 2d 724, 725 (Fla. 4th DCA 1980).
Here, a plain reading of the October 22, 2009, final order undoubtedly shows that the dismissal was voluntary. Ultrasmith
admitted as much in its motion to strike, stating that the Court made a legal determination that the dismissal was not *10
legally sufficient to be considered by the Court, and then treated it as if it were.... [B]y taking this action, the determination that
Ultrasmith was the non-prevailing party falls outside the general rule that would apply had Ultrasmith actually filed a legally
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sufficient notice. (R. 677.) Thus, although acknowledging that the court entered a voluntary dismissal, Ultrasmith goes on to
raise an untimely challenge to the legal sufficiency of that dismissal under the pretext of opposing a motion for fees.
The transcript of the March 16, 2010, hearing on the parties' respective motion for attorney's fees and motion to strike also makes
clear that the entire basis of Ultrasmith's motion to strike hinged on its efforts to relitigate the propriety of the voluntary dismissal.
Specifically, Ultrasmith turned the entire hearing into a referendum on the legal correctness of a voluntary dismissal made
pursuant to an oral request from a corporate representative. The parties certainly did not require a greater than one hour non-
evidentiary hearing with extensive legal arguments just to accommodate Ultrasmith's half-hearted request for clarification.
Moreover, the exchanges between the court and the parties belie any claim that Ultrasmith was merely seeking clarification or
the correction of a clerical mistake in the October 22, 2009, order:
Mr. Stracher: What the court did was to simply say okay, I'm going to dismiss the case without prejudice. Even though the
pleadings that was filed is a nullity, I'm going to go ahead and do that based on your request.
*11 The Court: Because the party who, and this has not been challenged, through its duly authorized representative with full
authority to do so, announced in open Court that he wished to voluntarily dismiss the case. I'm just looking at Rule 1.420, and
certainly in the midst of an 8:45 hearing, which I believe it was, and on typically busy days like earlier today ... I don't have the
chance to do a lot of things that other courts may have the opportunity to do. (R. 738-39.)
...
After counsel for Appellant made his argument that Mr. Smith had the ability to-make an oral pronouncement of voluntary
dismissal, the court stated:
The Court: Have you been able to find any cases that speak to the party's authority to even overrule or disagree with Counsel's
recommendation and a court accepting the party's representative's position relative to something like a dismissal of a case?
In other words, I certainly can envision a situation where during trial or during a summary judgment hearing where the party
representative is present, and for whatever reason, it could be a myriad of different reasons, the party representative standing up
and saying Judge, I am seeking to dismiss this case. Despite my lawyer's recommendations to the contrary, I, as the authorized
representative, being of otherwise sound mind and speaking on behalf of my wholly owned limited liability company, and as
president of that company, I am announcing a dismissal on the record of this case? I mean, what would be prohibitive of doing
that if that party has the full authority to do so?
It's almost similar to in criminal scenarios. Many times a defendant will say I'm pleading to this charge; I'm pleading straight up
to the Court. I've got a lawyer, but despite my lawyer's recommendations, I want to plead straight up to the Court. I don't think
there's anything wrong with that, frankly. I can see that analogy. I've seen it happen live before me when I presided in criminal.
And clearly, to my knowledge, there's nothing wrong with that. And it happens invariably in many, many, many cases. But
have you been able to find any cases that addresses that issue? (R. 747-48.)
After some responsive argument by Appellant's trial counsel, the court continued:
*12 The Court: I don't see it as something that is that extreme, meaning the reasons why corporations
must be represented by counsel, in my view, is probably derived from the fact that corporations enjoy a
special status by virtue of its corporate filings, and they also enjoy certain protections that are authorized
by law, so that because of all the complexities involved with regard to corporate status, a lawyer is required
to represent the corporation to advance the proceeding. I don't necessarily see that as a bar or a prohibition.
...
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If 1.420 allows a party to state on the record that party wishes the case to be dismissed, why should it be
mutually, or why should it not be a decision that can be made directly by the authorized representative of
the party? Here, to my knowledge, and I don't believe it's been discussed otherwise in any of the pleadings
or papers that have been field by Mr. Smith, who has the sole authority to do that and to make that decision
on behalf of his company. (R. 750-51.)
Obviously, this entire exchange is unnecessary if Ultrasmith were merely asking the court to correct a clerical error or mistake
in the October 22, 2009, order. The dialogue makes perfect sense, however, in the context of a discussion of the propriety of
the order of voluntary dismissal itself. The transcript of the hearing, as well as Ultrasmith's own words, provides irrefutable
proof that Appellant's Motion for Attorney's Fees was improperly used by Ultrasmith to relitigate the legal sufficiency of the
voluntary dismissal. The time for such reconsideration, however, expired ten days after entry of the order. See Rule 1.530.
*13 Based on the foregoing, the trial court committed reversible error by exceeding its jurisdiction and correcting a perceived
substantive legal error in a final order after the expiration of the time for seeking rehearing.
B. Because the Final Order in this Case was Based Upon a Voluntary Dismissal, the Trial Court Committed Reversible
Error When it Denied Appellant's Motion for Prevailing Party Attorney's Fees
It is well-established that, regardless of whether it is done without prejudice, when a plaintiff voluntarily dismisses their case,
the defendant is the prevailing party for attorney's fees purposes when the right to fees is based upon a statute or contract.
Alhambra Homeowners Association, Inc. v. Asad, 943 So. 2d 316, 318 (Fla. 4th DC A 2006) (citing Griffin v. Berkley S. Condo.
Ass'n, 661 So. 2d 135 (Fla. 4th DCA 1995) (applying prevailing party provision in condominium statute); Hatch v. Dance, 464
So. 2d 713, 714 (Fla. 4th DCA 1985) (in a case where plaintiff voluntarily dismissed after limited pre-trial activity, court held
that it is well-established that statutory or contractual provisions providing for an award of attorney's fees to the prevailing
party in a litigation encompasses defendants in suits which have been voluntarily dismissed); Stuart Plaza, Ltd. v. Atl. Coast
Dev. Corp. of Martin County, 493 So. 2d 1136, 1137 (Fla. 4th DCA 1986) (involving prevailing party attorney's fee provision in
a lease); Boca Airport, Inc. v. Roll-N-Roaster of Boca, Inc., 690 So. 2d 640, 641 (Fla. 4th DCA 1997) (applying *14 attorney's
fee provision of mechanics' lien statute and recognizing that Stuart Plaza stated the correct rule); Lion Oil Co. v. Tamarac
Lakes, Inc., 232 So. 2d 20 (Fla. 4th DC A 1970) (applying mechanic's lien statute); Vidibor v. Adams, 509 So.2d 973 (Fla.
5th DCA 1987) (involving fee provision of a statute); Century Constr. Corp. v. Koss, 559 So. 2d 611 (Fla. 1st DCA 1990)
(involving fees pursuant to a contractual provision); Landry v. Countrywide Home Loans, Inc., 731 So. 2d 137 (Fla. 1st DCA
1999) (attorney's fee provision on mortgage note); Ajax Paving Indus., Inc. v. Hardaway Co., 824 So. 2d 1026, 1029 (Fla. 2d
DCA 2002) (contractual provision); Rushing v. Caribbean Food Prods., 870 So. 2d 953 (Fla. 1st DCA 2004) (lease provision).
In Alhambra, this Court not only recognized the principle that a defendant is the prevailing party after a voluntary dismissal,
but held that the voluntary dismissal was a bright line test from which a trial court has no discretion to find otherwise. 943
So. 2d at 321. In so doing, the Court aligned itself with the second and fifth districts by rejecting Simmons v. Schimmel, 476
So.2d 1342 (Fla. 3d DCA 1985), in which the third district held that in order to be the prevailing party, there had to be some
finality on the merits. The Court explained:
As did the second and fifth districts, we too reject the Simmons approach. Instead of a bright line general rule
to control the award of attorney's fees after a voluntary dismissal, the Simmons approach would engender
more litigation after a voluntary dismissal directed at whether a defendant requesting fees has, in fact,
prevailed. Such a soft *15 standard would yield inconsistent results, foment litigation, and create an
intensely fact-based jurisprudence that would be difficult to apply.
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Alhambra, 943 So. 2d at 321. Accordingly, because the October 22, 2009, order was entered pursuant to a voluntary dismissal,
the court erred by not following the mandatory bright line test set forth by this Court in Alhambra.
Based upon the foregoing, the trial court committed reversible error in failing to award prevailing party attorney's fees to
Appellant after Appellee voluntarily dismissed its case.
III. EVEN UNDER THE TRIAL COURT'S REVISED ORDER, THE COURT ERRED BY DENYING
APPELLANT'S MOTION FOR PREVAILING PARTY ATTORNEY'S FEES WHEN DISMISSAL WAS
INVOLUNTARILY ENTERED AS A SANCTION
Even if the trial court properly treated the October 22, 2009, final order as an involuntary dismissal as a sanction against
Ultrasmith for ignoring the court's previous orders to appear with counsel, the court still erred by failing to award prevailing
party attorney's fees to Mr. Henn. As with a voluntary dismissal, a defendant is considered the prevailing party for attorney's
fees purposes when a plaintiff's case is involuntarily dismissed pursuant to Rule 1.420. See Baratta v. Valley Oak Homeowners
Association, 891 So. 2d 1063 (Fla. 2d DCA 2004) (prevailing party attorney's fees appropriate based upon dismissal for lack
of prosecution); Norland v. Villages at Country Creek Masters Association, Inc., 851 So. 2d 770 (Fla. 2d DCA 2003) (same);
*16 Nicolitz v. Baptist Eye Institute, P.A., 830 So. 2d 270 (Fla. 1st DC A 2002) (same) (receded from on other grounds by
Wilson v. Salamon, 923 So.2d 363, 366 (Fla. Oct 20, 2005)); Stout Jewelers, Inc. v. Corson, 639 So. 2d 82 (Fla. 2d DCA
1994) (same); Gordon v. Warren Heating & Air Conditioning, Inc., 340 So. 2d 1234 (Fla. 4th DCA 1976) (holding that a
prevailing party under the mechanic's lien statute is entitled to attorney's fees regardless of whether the claim was voluntarily
or involuntarily dismissed).
In Stout, the trial court dismissed both the plaintiff's claims and the defendant's counterclaims for failure to prosecute. 639
So. 2d at 83. The court found no reason to change the prevailing party standard to dismissals that are involuntary rather than
voluntary. Id. at 84. Specifically, the court reasoned:
In the context of a plaintiff's voluntary dismissal of a case, Florida courts have consistently interpreted
the rule as authorizing a trial court to award attorney's fees as costs to a defendant as the prevailing party
when such an award is provided for either by statute or a contract between the parties. Since rule 1.420(d)
contemplates both voluntary and involuntary dismissals, we see no reason why this interpretation should
not be applied to a situation involving an involuntary dismissal of a plaintiff's case. Thus, based on the fee
provision in the parties' lease, [the defendant] was entitled to an award of fees as costs for successfully
obtaining an involuntary dismissal of the case if it was the prevailing party.
Id. at 84 (citing Stuart Plaza, Ltd. v. Atl. Coast Dev. Corp. of Martin County, 493 So.2d 1136 (Fla. 4th DCA 1986)).
This Court's recent decision in Frazier v. Dreyfuss, 14 So. 3d 1183 (Fla. 4th DCA 2009), is directly on point. In Frazier, the
plaintiffs sued the defendants for *17 multiple causes of action under a contract. Id. at 1183 The defendants filed a motion
to dismiss and to compel arbitration pursuant to the contract, which mandated arbitration before a specified arbitrator in Costa
Rica. Id. at 1184. The trial court entered an order compelling arbitration and abating the action. Id. After the plaintiffs failed to
take any action, the trial court entered additional orders requiring the plaintiffs to pursue arbitration. Id. During a subsequent
hearing, the plaintiffs announced that they had elected to forgo pursuing their claims in arbitration because of the expense
associated with retaining counsel in Costa Rica. Id. The trial court thereafter dismissed the lawsuit as a sanction for failure to
comply with the court's orders requiring arbitration. Id. The trial court also awarded attorney's fees to the defendants as the
prevailing party under a statute applicable to that case. Id.
On appeal, this Court affirmed by relying on and thereby extending the bright line test of Alhambra to an involuntary dismissal,
holding that, regardless of a plaintiff's reasons for ignoring a court's order, the defendant is the prevailing party when the
Byron HENN, Appellant, v. ULTRASMTH RACING, L.L.C.,..., 2010 WL 3805406...
2014 Thomson Reuters. No claim to original U.S. Government Works. 9
failure to comply with said order results in a dismissal. See Frazier, 14 So. 3d at 1185. In Frazier, the plaintiff failed to
comply with the court's order because it did not want to spend money on an attorney. Similarly, in the instant case, the court
dismissed Ultrasmith's case after multiple instances of its sole agent and principal ignoring the court's orders to appear at a status
conference *18 with an attorney. Even putting the factual similarities aside, the Frazier Court's extension of the bright line
test to involuntary dismissals compelled the trial court to award attorney's fees to Appellant as the prevailing party. In failing
to do so, the court committed reversible error.
Ultrasmith will likely rely, as it did below, on the decisions in Shaw v. Schlusemeyer, 683 So. 2d 1187 (Fla. 5th DC A 1996),
and Mitchell v. Beach Club of Hallandale Condominium Association, Inc., 17 So. 3d 1265 (Fla. 4th DC A 2009). Neither of
these cases, however, is procedurally or factually similar to the case at hand. Shaw did not even involve a final order. In that
case, the court simply held that prevailing party attorney's fees were inappropriate where a plaintiff's complaint was dismissed
for a technical default, but they were given 20 days leave to amend. Shaw, 683 So. 2d at 1188. Because the order in that case
lacked finality, however, the bright line test espoused by this Court in Alhambra and Frazier never even came into play.
The decision in Mitchell is likewise inapplicable. There, the trial court granted the defendant prevailing party attorney's fees
after dismissing the plaintiff's case on jurisdictional grounds, but without prejudice to refile. Mitchell, 17 So. 3d at 1266. This
Court reversed on the ground that jurisdiction was proper. Id. at 1267 Because the underlying dismissal was improper, the
Court also reversed the award of fees. Id. In dicta, the Court stated that the attorney fees *19 award could likewise have been
reversed because the defendant did not prevail when the complaint was dismissed on jurisdictional grounds without prejudice
to refile. Id. This is in perfect keeping with Rule 1.420(b), which expressly carves out an exception for the consequences of
an involuntary dismissal based on lack of jurisdiction. Furthermore, it only makes sense that a court without subject matter
jurisdiction cannot enter an order purporting to determine a right such as which party prevailed. Unlike in Mitchell, however,
this case does not involve a dismissal for lack of subject matter jurisdiction; rather, the instant case concerns an involuntary
dismissal as a sanction, which is not subject to any special treatment under Rule 1.420. Accordingly, Mitchell does not provide
any basis for ignoring the rule set forth in Alhambra and Frazier.
Counsel for Ultrasmith also argued below that even though the October 22 dismissal was not voluntary, it was also not
involuntary. This argument flies in the face of common sense. It is axiomatic that a dismissal is either voluntary or involuntary.
In any event, this argument was untimely. Ultrasmith's specific argument was that the order was not an involuntary dismissal
because by entering the order sua sponte, the court did not adhere to the procedures set forth in Rule 1.420(b) (R. 785-86.) It
is clear that in raising this argument, Ultrasmith was once again making an objection to the legal sufficiency of the involuntary
dismissal. As discussed supra, if Ultrasmith wanted to challenge the legal sufficiency of the *20 dismissal, it needed to do so
by filing either a timely motion for rehearing or notice of appeal; Ultrasmith has done neither. Thus, assuming for argument
that the court's reclassification of the order of October 22, 2009, from a voluntary dismissal to an involuntary dismissal for
sanctions was proper, for purposes of this appeal, the legal sufficiency of said order cannot be disputed. Moreover, the entire
premise of Ultrasmith's argument is wrong, as demonstrated by this Court's recognition that a sua sponte dismissal as a sanction
is an involuntary dismissal. See Cushman & Wakefield of Florida, Inc. v. Hughes, 645 So. 2d 1091 (Fla. 4th DCA 1994).
Based upon the foregoing, the trial court reversibly erred in failing to award prevailing party attorney's fees to Appellant after
the court entered a final order involuntarily dismissing Ultrasmith's case as a sanction for disregarding the court's orders to
obtain and appear with counsel at two separate status conferences.
*21 Conclusion
For the aforementioned reasons, this Court should reverse the trial court's order denying Byron Henn's Motion for Attorney's
Fees and remand the matter for an evidentiary hearing as to the issue of the amount to be awarded.
End of Document 2014 Thomson Reuters. No claim to original U.S. Government Works.