5D09-894 Black Diamond v. Haines

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D09-894

Case Date: 05/24/2010

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2010

BLACK DIAMOND PROPERTIES, INC., ET AL., Appellant, v. CHARLES S. HAINES, KATHY HAINES, ET AL., Appellee. ________________________________/ Opinion filed May 28, 2010 Appeal from the Circuit Court for Citrus County, Patricia Thomas, Judge. Anne S. Mason of Mason Law, P.L., Clearwater, and Edward A. Marod of Edward A. Marod, P.A., West Palm Beach for Appellant. Steven A. Rothenburg, Ocala, and John C. Bell, Jr., of Bell & Brigham, Augusta, GA for Appellee William Bristol. No Appearance for Appellees Charles S. Haines, Kathy Haines, Richard O. Conboy, Jackson Randolph, Larry Laukka, Angelo Masut, Brenda Masut and Tom Howell. PALMER, J. Black Diamond Properties, Inc. (Black Diamond) appeals the final order entered by the trial court denying its motion seeking prevailing party attorney's fees and costs against William Bristol, a plaintiff below who voluntarily dismissed his claims against Case No. 5D09-894

Black Diamond. Determining that Black Diamond is entitled to recover certain attorney's fees and costs as a prevailing party, we reverse. A group of plaintiffs, including William Bristol, filed a complaint against Black Diamond asserting three claims: (1) misleading advertising under section 817.41 of the Florida Statutes, (2) deceptive and unfair trade practices under sections 501.201 through 501.204 of the Florida Statutes, and (3) conversion. Bristol subsequently voluntarily dismissed all of his claims against Black Diamond pursuant to rule 1.420(a)(1) of the Florida Rules of Civil Procedure. Black Diamond responded by filing a motion for prevailing party attorney's fees and costs. After conducting a hearing on the motion, the trial court denied Black Diamond's request for attorney's fees and costs, holding: This Court agrees with the Plaintiff that the Defendants are not entitled to prevailing party fees and costs merely because the Plaintiff voluntarily dismissed his claim. Section 501.2105(1) requires a final judgment and exhaustion of appeals. The case law cited by the Defendants is distinguished on the facts. Furthermore, under the circumstances the Defendants have not prevailed under the "significant issues" test. Moritz v. Hoyt Enterprises, Inc., 604 So. 2d 807 (Fla. 1992). Accordingly, the Defendant are not entitled to prevailing party attorney's fees and cost with respect to Plaintiff Bristol. This appeal timely followed. Section 817.41(6) of the Florida Statutes (2003) authorizes the award of prevailing party attorney's fees as follows: 817.41 Misleading advertising published. *** (6) Any person prevailing in a civil action for violation of this section shall be awarded costs, including reasonable attorney's fees, and may be awarded punitive damages in addition to actual damages proven. This provision is in addition to any other remedies prescribed by law.

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