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Florida Second DCA rules that plaintiff’s voluntary dismissal of complaint without prejudice did not trigger entitlement by defendant to attorney’s fees under Fla. Stat. § 768.79 even though the statute of limitations had expired at the time of dismissal

On December 23, 2020, in Herrell, et al. v. Universal Property & Casualty Insurance Company, No. 2D19-1911, the Florida Second DCA affirmed a trial court’s denial of the defendants’ motion for attorney’s fees in a negligence action that was voluntarily dismissed without prejudice by the plaintiff after the statute of limitations (SOL) period expired and after the defendants had served the plaintiff with separate proposals for settlement under Fla. Stat. § 768.79.  The Second DCA noted that in MX Investments, Inc. v. Crawford, 700 So. 2d 640, 642 (Fla. 1997), the Florida Supreme Court held that a party is not entitled to an award of attorney's fees and costs pursuant to a proposal for settlement under § 768.79 unless the dismissal is with prejudice or is a second voluntary dismissal. The defendants argued that the in this case the dismissal without prejudice had the same preclusive effect as a dismissal with prejudice because the SOL had expired.  The Second DCA disagreed, citing Gammie v. State Farm Mut. Auto. Ins. Co., 720 So. 2d 1163, 1163-64 (Fla. 3d DCA 1998) (rejecting argument that a voluntary dismissal after the statute of limitations period is the equivalent of an adjudication on the merits) and Aero Toy Store, Inc. v. Sherwin Williams Co., 725 So. 2d 1267, 1268 (Fla. 4th DCA 1999) (holding that the trial court is divested of jurisdiction to enter a dismissal with prejudice where a party voluntarily dismisses the case under rule 1.420(a)(1) and thus an award of attorney's fees under section 768.79 is improper).

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