Valcarcel v. Chase Bank U.S. Na
| Decision Date | 25 March 2011 |
| Docket Number | No. 4D10–379.,4D10–379. |
| Citation | 54 So.3d 989 |
| Parties | Carmen VALCARCEL and Victor Valcarcel, Appellants,v.CHASE BANK USA NA, Appellee. |
| Court | Florida District Court of Appeals |
54 So.3d 989
Carmen VALCARCEL and Victor Valcarcel, Appellants,
v.
CHASE BANK USA NA, Appellee.
No. 4D10–379.
District Court of Appeal of Florida, Fourth District.
Nov. 24, 2010.Rehearing Denied March 25, 2011.
[54 So.3d 989]
Thomas E. Ice and Enrique Nieves of Ice Legal, P.A., Royal Palm Beach, for appellant.Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow, & Schefer, P.A., Hollywood, for appellee.
[54 So.3d 990]
TOWBIN SINGER, MICHELE, Associate Judge.
This is an appeal from the trial court's denial of a motion for attorney's fees. Chase had filed a foreclosure action against the Valcarcels. The trial court dismissed without prejudice Chase's foreclosure action against the Valcarcels, not on the merits but rather due to misconduct of counsel for Chase. The Valcarcels then filed a Florida Rule of Civil Procedure 1.525 Motion for Attorneys' Fees and Costs asserting that they were entitled to costs as the prevailing party and also under rule 1.420(d). They also argued that they are entitled to attorney's fees as the prevailing party pursuant to section 57.105(7), Florida Statutes (2009), as provided for in the fee provisions of the note and mortgage. The trial court concluded that the order of dismissal was not a judgment and denied the motion for fees and costs. The Valcarcels filed this appeal.
Chase argues on appeal that the order dismissing its foreclosure action was not a final order and, therefore, this non-final order on the motion for attorney's fees is not appealable under Florida Rule of Appellate Procedure 9.130. Chase further argues that in any event, the order of dismissal should not entitle the Valcarcels to recover attorney's fees.
First, this court addresses Chase's jurisdiction argument. Florida Rule of Appellate Procedure 9.130(a)(4) provides that non-final orders entered after the final order on authorized motions are reviewable. Therefore, the question is whether the order of dismissal without prejudice is a final appealable order.
An order dismissing an action without prejudice and without granting leave to amend is a final appealable order. Silvers v. Wal–Mart Stores, Inc., 763 So.2d 1086, 1086 (Fla. 4th DCA 1999); see also Carnival Corp. v. Sargeant, 690 So.2d 660 (Fla. 3d DCA 1997). “The order of dismissal is clearly final when, for instance, the claim could only be pursued by filing a new complaint....” Hinote v. Ford Motor Co., 958 So.2d 1009, 1010 (Fla. 1st DCA 2007) (citing Delgado v. J. Byrons, Inc., 877 So.2d 822 (Fla. 4th DCA 2004)). Chase has not cited any case which holds otherwise. Therefore, Chase's argument that the order was not final is totally without merit and this court has jurisdiction.
We next address the issue of attorney's fees. “Generally, a trial court's determination of which party...
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