Georges v. Avanti Condo. Ass'n

• Decision Date: 13 July 2021
• Docket Number: No. 1D20-1192,1D20-1192
• Citation: 324 So.3d 991
• Parties: Pierre A. GEORGES and Marie Y. Georges, Appellants, v. AVANTI CONDOMINIUM ASSOCIATION, Appellee.
• Court: Florida District Court of Appeals

324 So.3d 991

Pierre A. GEORGES and Marie Y. Georges, Appellants,

v.AVANTI CONDOMINIUM ASSOCIATION, Appellee.

No. 1D20-1192

District Court of Appeal of Florida, First District.

July 13, 2021

Brian K. Korte and Allegra P. Fung of Korte & Associates, West Palm Beach, for Appellants.

Jacob Bair of Business Law Group, P.A., Tampa, for Appellee.

Osterhaus, J.

Pierre A. Georges and Marie Y. Georges appeal the trial court's order denying them attorney's fees following the voluntary dismissal of a condominium association's foreclosure action against them. We affirm because the Georgeses were not prevailing parties in the litigation.

Avanti Condominium Association filed a two-count complaint against the Georgeses for nonpayment of assessments. Count I was a foreclosure claim to foreclose the lien Avanti placed on the Georgeses' condo unit. Count II sought money damages against the Georgeses personally for the unpaid assessments. The Georgeses moved to have the case dismissed but were unsuccessful. And the trial court denied both parties' motions for summary judgment. Avanti later voluntarily dismissed the case after the mortgage holder foreclosed its superior lien. The Georgeses then moved for attorney's fees and costs arguing they were entitled to prevailing party attorney's fees because of Avanti's dismissal. The trial court denied the motion finding that the voluntary dismissal did not make the Georgeses the prevailing party.

"A trial court's order on attorney's fees ... is generally reviewed for an abuse of discretion; however, such an order is reviewed de novo to the extent it is based on an issue of law." Hall v. Lopez , 213 So. 3d 1003, 1005 (Fla. 1st DCA 2016) (citing Blue Infiniti, LLC v. Wilson , 170 So. 3d 136, 139 (Fla. 4th DCA 2015) ).

Generally, when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party for purposes of prevailing party attorney's fee awards. Rushing v. Caribbean Food Prods. , 870 So. 2d 953, 954–55 (Fla. 1st DCA 2004) (first citing Landry v. Countrywide Home Loans, Inc. , 731 So. 2d 137, 139 (Fla. 1st DCA 1999) ; then citing Thornber v. City of Ft. Walton Beach , 568 So. 2d 914 (Fla. 1990) ). But there are exceptions to the general rule when a plaintiff's dismissal occurs under circumstances demonstrating that the defendant did not prevail. Cases finding an exception to the general rule "look behind a voluntary dismissal at the facts of the litigation ‘to determine whether a party is a substantially prevailing party.’ " Tubbs v. Mechanik Nuccio Hearne & Wester, P.A. , 125 So. 3d 1034, 1041 (Fla. 2d DCA 2013) (quoting Walter D. Padow, M.D., P.A. v. Knollwood Club Ass'n , 839 So. 2d 744, 745 (Fla. 4th DCA 2003) ); see also Valencia Golf & Country Club Homeowners' Ass'n v. Cmty. Res. Servs., Inc. , 272 So. 3d 850, 852 (Fla. 2d DCA 2019) (finding neither party to have substantially prevailed where defendants had to provide documents and execute a separate agreement clarifying its obligations to the plaintiff as demanded in the complaint); Kelly v. Bankunited, FSB , 159 So. 3d 403, 406–07 (Fla. 4th DCA 2015) (finding neither party substantially prevailed after the mortgagee voluntarily dismissed its foreclosure action after a short-sale in which plaintiff received less than 25% of the...