Every Florida attorney knows the rule that any party seeking attorneys’ fees must serve a motion no later than thirty (30) days after the filing of a judgment, including a judgment of dismissal, or the service of a motion of voluntary dismissal, which judgment or notice concludes the action as to that party.[1] But … what if your client, the owner of a construction project, is inappropriately named as a defendant in a lien foreclosure action. You explain the rationale as to why your client is an improper party defendant to plaintiff’s counsel but your argument falls on deaf ears, forcing you to file a motion to dismiss. At a hearing on another defendant’s motion to dismiss, the court grants the motion with leave for plaintiff to file an amended complaint. Prior to your client’s motion being heard, the plaintiff files an amended complaint dropping your client as a party defendant. Does the filing of the amended complaint trigger the 30 day time limit for you to file a motion for attorney’s fees as a prevailing party? You immediately reread the requirements set forth in Fla. R. Civ. P. 1.525. Your client was neither dropped as a party defendant as the result of a judgment of dismissal nor by the service of a motion of voluntary dismissal, which judgment or notice concluded the action as to your client. Instead, your client was dropped as a party defendant as a result of the filing of an amended complaint. Under a strict construction of Fla. R. Civ. P. 1.525, the 30 day time period would not be applicable to your client being dropped from the case as the result of the filing of the amended complaint. As set forth below, this strict construction is a trap for the unwary.
A further analysis is required as to the methodology by which parties may be dropped in compliance with the Florida Rules of Civil Procedure. Fla. R. Civ. P. 1.250(b) governs “dropping parties.” There are, in essence, 3 instances in which a party may be dropped by an adverse party in facts analogous to our hypothetical:
- In the manner provided for voluntary dismissal in Fla. R. Civ. P. 1.420(a)(1);
- By order of the Court on its own initiative; OR
- On motion of any party at any stage of the action and on such terms as are just.
There is no provision contained in Fla. R. Civ. P. 1.250(b) authorizing a party be dropped by an adverse party as the result of the serving of an amended pleading pursuant to Fla. R. Civ. P. 1.190(a). Strangely, Fla. R. Civ. P. 1.250 only authorizes the adding of parties through the filing of an amended pleading.[2]
If a Court grants a motion to dismiss but grants the plaintiff leave to amend, this authorizes the plaintiff to add or drop parties in the amended pleading. “Naturally, an amended affirmative pleading filed under Rule 1.190, which omits all claims that had previously been asserted against one of the parties in the prior pleading, would have the effect of dropping that party voluntarily from the action. However, because Rule 1.250 refers to Rule 1.190(a) only in connection with the adding of parties, under subdivision (c), and not in connection with the dropping of parties, under subdivision (b), a pleading amendment which does nothing more than drop a party would probably have to be deemed a voluntary dropping of that party under and subject to Rule 1.250(b).”[3]
In most instances, when a plaintiff voluntarily dismisses an action, the defendant is a prevailing party for awarding attorneys’ fees.[4] There are exceptions to this general rule. A court may look behind a voluntary dismissal at the facts of the litigation to determine whether a party is a substantially prevailing party.[5]
In Siboni v. Allen, 52 So.3d 779, 781 (Fla. 5th DCA 2010), the court held that a party dropped from litigation under Fla. R. Civ. P. 1.250(b) is subject to the 30 day time limitation contained in Fla. R. Civ. P. 1.525, governing service of a motion seeking a judgment for costs and attorneys’ fees. The court stated that in order to reach this holding, it had “read the applicable rules in pari materia to reach this result, mindful of the purposes sought to be accomplished.”[6] “Pari materia” is latin for “upon the same subject.” Statutes or rules in pari materia must be interpreted in light of each other since they have a common purpose for comparable items. In Siboni, the Fifth District Court of Appeals applied the same logic as espoused in Bay View Inn v. Friedman, 545 F.2d 417 (Fla. 3d DCA 1989) to attorneys’ fees as Bay View Inn applied to costs. In Bay View Inn, the court held that a party dropped pursuant to Fla. R. Civ. P. 1.250(b) can utilize Rule 1.420(b) to recover costs.[7] The Third District Court of Appeals explained that although Fla. R. Civ. P. 1.250(b) does not itself provide a basis for assessment of costs, it specifies that a party is dropped “in the manner provided for dismissal in Rule 1.420(a)(1).”[8] The court in Siboni held that there is no analytical difference in construing the rule’s application to requests for costs (Bay View Inn) than to construing the rule’s application to requests for attorneys’ fees.[9] Accordingly, even though Fla. R. Civ. P. 1.525 makes no reference to the dropping of parties pursuant to Rule 1.250(b) as a trigger to commence the thirty (30) day deadline, the court in Siboni held that a party dropped from litigation under Fla. R. Civ. P. 1.250(b) is required to file a motion for attorneys’ fees with thirty (30) days of being dropped or forever be barred from claiming attorneys’ fees. The Siboni case is the only Florida appellate case addressing this issue. Can an argument be made that the court in Siboni made an improper legislative decision and ignored the plain reading of Rule 1.525? Yes, but why take the risk?
CONCLUSION
Pursuant to Florida case law, a party dropped from litigation under Fla. R. Civ. P. 1.250(b) is subject to the 30 day time limitation contained in Fla. R. Civ. P. 1.525, governing service of a motion seeking a judgment for costs and attorneys’ fees. Even though the filing of an amended pleading does not explicitly trigger the 30 day time period under Rule 1.525, if your client gets dropped as a party as the result of the filing of an amended pleading, file any motion for attorneys’ fees within thirty (30) days of your client getting dropped. Failure to adhere to this time period may result in your client’s motion for attorneys’ fees being denied by the court.
Steven “Rusty” Nisbet, a Senior Trial Attorney, is one of the construction industry attorneys at Zinzow Law, LLC. For more information, or to inquire about a free seminar on this or other legal topics, email info@zinzowlaw.com, or visit www.zinzowlaw.com.
[1] Fla. R. Civ. P. 1.525.
[2] Fla. R. Civ. P. 1.250(c).
[3] Trawick, Florida Practice and Procedure (2014 Edition), §4:10; Berman’s Florida civil Procedure, 4 Fla. Prac., Civil Procedure §1.525:8, n.2.
[4] Tubbs v. Mechanik Nuccio Hearne & Wester, P.A., 125 So.3d 1034,1040 (Fla. 2d DCA 2013) citing Thornber v. City of Fort Walton Beach, 568 So.2d 914, 919 (Fla. 1990).
[5] Id. at 1041. See Walter D. Padow, M.D., P.A. v. Knollwood Club Ass’n, 839 So.2d 744, 745 (Fla. 4th DCA 2003)(No prevailing party when a party voluntarily dismisses case after receiving substantially all of the money claimed); Tubbs, supra. at 1042 (No prevailing party when a party dismissed a cause of action which had been rendered moot).
[6] Id. at 780.
[7] Id. at 419.
[8] Id.
[9] Siboni, supra. at 781.
