Oakwood Plaza, L.P. v. D.O.C. Optics Corp., 97-3418

• Decision Date: 18 February 1998
• Docket Number: No. 97-3418,97-3418
• Citation: 708 So.2d 959
• Parties: 23 Fla. L. Weekly D501 OAKWOOD PLAZA, L.P., a Delaware limited partnership, f/k/a SFA Atlantis Associates, L.P., Petitioner, v. D.O.C. OPTICS CORPORATION, a Delaware corporation, Respondent.
• Court: Florida District Court of Appeals

Page 959

708 So.2d 959

23 Fla. L. Weekly D501

OAKWOOD PLAZA, L.P., a Delaware limited partnership, f/k/a SFA Atlantis Associates, L.P., Petitioner, v. D.O.C. OPTICS CORPORATION, a Delaware corporation, Respondent.

No. 97-3418.

District Court of Appeal of Florida,

Fourth District.

Feb. 18, 1998.

Order Denying Rehearing and

Clarifying Opinion May 20, 1998.

Robert Paul Keeley of Ellis, Spencer and Butler, Hollywood, for petitioner.

Tamara Carmichael and Andrew Cotzin, P.A. of Broad and Cassel, Miami, for respondent.

PER CURIAM.

Oakwood Plaza, L.P. petitions for writ of certiorari from the denial of its motion for attorney's fees, following a voluntary dismissal by the plaintiff, D.O.C. Optics Corp., of a suit D.O.C. filed against Petitioner, its landlord, under an exclusivity rider to the parties' lease of space in a shopping center. We grant the petition.

Petitioner has represented that D.O.C. has not refiled its action, and neither D.O.C. nor the record before this court indicate otherwise. Petitioner sought attorney's fees and costs under both a general lease provision, section 8.1, which allowed the landlord "expenses (including reasonable attorneys' fees and disbursements)" for enforcing the tenant's obligations, and a specific provision in the rider, paragraph 6, which made the landlord "responsible for Tenant's reasonable legal fees and costs of suit" incurred in connection with the landlord's breach of the exclusivity clause. (The latter claim to entitlement was by way of section 57.105(2), Florida Statutes, making the attorney's fee provision of the rider reciprocal.). The trial court granted costs under rule 1.420(d), Florida Rules of Civil Procedure, and those are not in dispute, but it declined to award fees, pursuant to Wilson v. Rose Printing Co., 624 So.2d 257 (Fla.1993), because paragraph 6 of the rider did not define costs to include fees. This court has certiorari jurisdiction. See Sholkoff v. Boca Raton Community Hosp., Inc., 693 So.2d 1114, 1115 (Fla. 4th DCA 1997).

In Wilson and in Sholkoff, the litigation had been refiled, and, therefore, the fact that the action in question had been voluntarily dismissed did not make the defendant the prevailing party; instead, the prevailing party was yet to be determined in the subsequently filed litigation. In those cases, however, the defendant was found to be entitled to attorney's fees in connection with the dismissed action because rule 1.420(d) provides that "[c]osts in any action dismissed under this rule shall be assessed and judgment for costs entered in that action," and the parties' agreements defined costs to include attorney's fees.

The fact that Petitioner is not entitled to attorney's fees as costs pursuant to the language of the attorney's fee provision in the exclusivity rider to the lease in the instant case, however, does not mean that it cannot be awarded the fees to which it is entitled as the prevailing party in an action under the lease. See Careers USA, Inc. v. Sanctuary of Boca, Inc., 705 So.2d 1362 (Fla. 1998); Stuart Plaza, Ltd. v. Atlantic Coast Dev. Corp. of Martin County, 493 So.2d 1136, 1137 (Fla. 4th DCA 1986); Boca Airport, Inc. v. Roll-N-Roaster of Boca, Inc., 690 So.2d 640 (Fla. 4th DCA), rev. dismissed, 698 So.2d 543 (Fla.1997); Casarella, Inc. v. Zaremba Coconut Creek Parkway Corp., 595 So.2d 162 (Fla. 4th DCA 1992).

As the supreme court stated,

In general, when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party. A determination on the merits is not a prerequisite to an award of attorney's fees where the statute provides that they will inure to the prevailing party. There must be some end to the...