Opinion
No. 3D19-1427
07-22-2020
NADER + MUSEU I, LLLP, Appellant, v. MIAMI DADE COLLEGE, etc., Appellee.
Stok Kon + Braverman and Robert A. Stok and Joshua R. Kon and David M. Robbins (Fort Lauderdale), for appellant. Bilzin Sumberg Baena Price & Axelrod LLP and Jose M. Ferrer and Desiree Fernandez, for appellee.
Stok Kon + Braverman and Robert A. Stok and Joshua R. Kon and David M. Robbins (Fort Lauderdale), for appellant.
Bilzin Sumberg Baena Price & Axelrod LLP and Jose M. Ferrer and Desiree Fernandez, for appellee.
Before SALTER, LINDSEY and LOBREE, JJ.
LOBREE, J.
Nader + Museu I, LLLP (the "bidder") appeals from the lower court's order denying its motion for attorney's fees as untimely. For the following reasons, we reverse.
The bidder sued Miami-Dade College (the "college") in 2016 seeking injunctive and declaratory relief, due to a bid protest dispute involving millions of dollars the underlying merits of which are irrelevant to this appeal. That same year, a temporary injunction was issued against the college, secured by a bond for which $100,000 were deposited by the bidder in the court registry. On September 28, 2016, the bidder filed a notice of voluntary dismissal without prejudice, pursuant to rule 1.420(a), Florida Rules of Civil Procedure. The college subsequently moved to dissolve the injunction and distribute the bond. The bidder opposed it, seeking a return of its funds and moving the lower court to acknowledge its notice of voluntary dismissal. On November 29, 2016, the trial court found in favor of the bidder, concluding that it has been the prevailing party, that the college was not harmed by the injunction, and acknowledging the notice of dismissal as effective.
On December 20, 2016, the bidder moved for prevailing party attorney's fees under its contract with the college. The motion was ultimately heard by a successor judge on July 2, 2019, ruling that despite the bidder's entitlement to attorney's fees, the motion was untimely filed:
Because [the bidder's] Motion for Civil Attorney's Fees was not filed within thirty days of its Voluntary Dismissal, Rule 1.525's stipulation of filing a motion for attorney's fees within thirty days was not satisfied and [the bidder] regrettably may not move for fees.
"Generally, we review a trial court's order denying attorney's fees for an abuse of discretion. However, to the extent the trial court's determination on a motion for attorney's fees is based on an issue of law, our standard of review is de novo. " Wells v. Halmac Dev., Inc., 189 So. 3d 1015, 1019 (Fla. 3d DCA 2016).
Rule 1.525, Florida Rules of Civil Procedure, provides:
Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal, which judgment or notice concludes the action as to that party.
The Committee Notes observe, "[t]his rule is intended to establish a time requirement to serve motions for costs and attorneys’ fees," and precedent describes it as a "bright-line" rule to be "applied strictly." ASAP Servs., LLC v. SA Fla. Int'l, LLC, 122 So. 3d 965, 967 (Fla. 3d DCA 2013) ; Caldwell v. Finochi, 909 So. 2d 976, 978 (Fla. 2d DCA 2005). It was promulgated "[t]o end the confusion concerning the prior requirement that [such] motions ... be served within a ‘reasonable time,’ " Byrne-Henry v. Hertz Corp., 927 So. 2d 66, 68 (Fla. 3d DCA 2006), as well as to prevent "prejudice and unfair surprise" to the losing party. Amerus Life Ins. Co. v. Lait, 2 So. 3d 203, 207 (Fla. 2009).
This rule applies equally without regard to whether the time runs from a document titled " ‘order,’ ‘final order,’ ‘judgment,’ or ‘final judgment,’ as long as the document is a final resolution of the rights and obligations of the parties" and "complet[es] all judicial labor with regard to the ... relief [originally] requested." Cardillo v. Qualsure Ins. Corp., 974 So. 2d 1174, 1175 (Fla. 4th DCA 2008). "A final order or judgment is one which evidences on its face that it adjudicates the merits of, and disposes of, the matter before the court and leaves no judicial labor to be done." Id. at 1176. Ordinarily, a notice of voluntary dismissal will, by itself, trigger the deadline of rule 1.525, sufficiently concluding the action. See, e.g., Carter v. Lake County, 840 So. 2d 1153, 1155 (Fla. 5th DCA 2003) ("[A] voluntary dismissal ... is generally utilized to conclude the action in its entirety."); Bray v. Grabowski, 905 So. 2d 153, 154 (Fla. 3d DCA 2004) (reversing award of attorney's fees where motion was filed outside the thirty-day deadline from the service of voluntary dismissal).
While the effect of a notice of voluntary dismissal is generally "immediate, final, and irreversible," Two Islands Dev. Corp. v. Clarke, 239 So. 3d 115, 124 (Fla. 3d DCA 2018), this is not automatic, but subject to exceptions. See, e.g., Pino v. Bank of N.Y., 121 So. 3d 23, 32 (Fla. 2013) (observing that, while notice of voluntary dismissal ordinarily "itself closes the case," requiring "not even a perfunctory order of court closing the file," and "leav[ing] the parties as though no action had been brought," Florida law has "recognized specific situations in which the trial court will not be divested of jurisdiction by virtue of the plaintiff's notice of voluntary dismissal"); Marine Contractors, Inc. v. Armco, Inc., 452 So. 2d 77, 79 (Fla. 2d DCA 1984) (noting, for example, that "[b]efore the notice of voluntary dismissal can become operative, it is equally clear that the party ... must effect [its] service," a notice not so served being deemed "a nullity [that did] not divest [the court] of jurisdiction"); Semerena v. Aetna Health, Inc., 248 So. 3d 230, 231 (Fla. 3d DCA 2018) ("[The] right of voluntary dismissal is circumscribed by certain factors.").
Here, the bidder was undeniably a party seeking a judgment taxing attorney's fees, having served a notice of voluntary dismissal purporting to conclude the action. Therefore, the issue is whether the notice, by itself, concluded the action under rule 1.525, triggering the thirty-day deadline for the filing of the motion for fees. See Cardillo, 974 So. 2d at 1175 ("The question is whether the ... order constitutes a final order or judgment commencing the time limit in rule 1.525."); Carter, 840 So. 2d at 1155 (observing that "[b]ecause Carter missed this deadline, we must analyze the notice served on Carter to determine whether it is [truly] a notice of voluntary dismissal," and concluding that "[b]ecause ... the notice was a notice of voluntary dismissal under rule 1.420, the time limits of rule 1.525 were triggered").
Rule 1.420(a), with which rule 1.525 must be construed in harmony, Baden v. Baden, 260 So. 3d 1108, 1112 (Fla. 2d DCA 2018), more particularly governs voluntary dismissals, and suggests that the notice filed by the bidder here required further judicial labor before it became effective. This provision relevantly reads:
(a) Voluntary Dismissal.
(1) By Parties. Except in actions in which property has been seized or is in the custody of the court, an action, a claim, or any part of an action or claim may be dismissed by plaintiff without order of court ...
(2) By Order of Court; If Counterclaim . Except as provided in subdivision (a)(1) of this rule, an action shall not be dismissed at a party's instance except on order of the court and upon such terms and conditions as the court deems proper ....
(emphasis added). "Property" under rule 1.420(a) has been construed to encompass funds deposited with the court registry. Baden, 260 So. 3d at 1114 ("[T]he most natural reading of the term ‘property ... in the custody of the court’ ... is money or other property in the actual custody of the court, such as funds deposited in the court registry.").
Here, at the time of the bidder's notice, funds from the bond posted remained in the custody of the court. Therefore, the plain language of rule 1.420(a) and exception it describes precluded the bidder's notice of voluntary dismissal from "concluding" the action under rule 1.525 and triggering its thirty-day deadline. See Ginsburg v. Carney, 514 So. 2d 1153, 1154 (Fla. 2d DCA 1987) ("The exception contained in the rule precludes the effective taking of a voluntary dismissal, where, as here, funds are in the custody of the court."); Cigna v. United Storage Sys., Inc., 537 So. 2d 129, 130 (Fla. 5th DCA 1988) (holding voluntary dismissal effective only because settlement proceeds at issue were in party's exclusive custody, not court's, and thus, "there were no legal obstacles under Rule 1.420(a) that prevented voluntary dismissal"); O'Sullivan v. City of Deerfield Beach, 232 So. 2d 33, 34 (Fla. 4th DCA 1970) (reversing denial of motion to strike notice of voluntary dismissal because city was not empowered to dismiss case where "such procedure leaves important matters in limbo," including "disposition ... to be made of the deposit which has now been taken down by the petitioners," and where "[a]llowance of this method constituted error in that the important hurdle found in Rule 1.420(a)(1) was not cleared. In other words, the exception, ‘except in actions wherein property has been seized’ ... was given no effect").
Our construction of the rule is further supported by the scant precedent in this narrow context. See Colonial Press of Miami, Inc. v. Indus. Med. Publ'g Co., Inc., 199 So. 2d 494, 494 (Fla. 3d DCA 1967) (affirming lower court's denial of plaintiff's motion to dismiss, where plaintiff obtained temporary injunction, then voluntarily dismissed case, but court entered subsequent order of dismissal requiring bond to remain posted until defendant had opportunity to prove damages, retaining jurisdiction); Mossucco v. Aventura Tennis, LLC, Inc., 147 So. 3d 88, 92 (Fla. 3d DCA 2014) (affirming lower court's return of funds from posted bonds to plaintiff, not as automatic entitlement upon filing of voluntary dismissal, but because defendants moved to recover from bonds after injunctions expired); Lorie v. C.L.N., 757 So. 2d 610, 612 (Fla. 3d DCA 2000) (reversing lower court's ruling contrary to Colonial, purporting to distribute bond funds to plaintiff automatically upon latter's voluntary dismissal, and remanding for hearing to determine defendant's entitlement to damages, impliedly requiring procedure previously affirmed in Colonial ). While not addressing the text of rules 1.420(a) or 1.525, these decisions nevertheless dealt with the effect of notices of voluntary dismissal in cases where bond funds remained in the court's custody, suggesting that judicial labor ordinarily remains in such cases at least with regard to their disposition.
Here, because the bidder's notice was not sufficient by itself under rule 1.420(a), it could not have "concluded" the action for purposes of rule 1.525, until the college had an opportunity to prove damages recoverable from the bond and the lower court entered an order acknowledging the bidder's notice. Because the college obtained a ruling on November 29, 2016, that order rendered the bidder's prior notice effective and triggered rule 1.525 ’s thirty-day deadline. Since the bidder's motion for fees was filed within thirty days from that order, on December 20, 2016, the motion was timely. Thus, the trial court erred in finding otherwise. Because the college has not challenged the lower court's finding that the bidder was entitled to prevailing party attorney's fees under the contract, we reverse and remand solely for a determination of the amount of reasonable attorney's fees to which the bidder is entitled.
Reversed and remanded with instructions.