Summary
noting that, in Thornber v. City of Fort Walton Beach, 568 So. 2d 914 (Fla. 1990), the Florida Supreme Court established the general rule that "when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party" and further noting "the Thornber Court did not exempt from its scope voluntary dismissals without prejudice"
Summary of this case from Lopez v. CavagnuoloOpinion
No. 3D14–2338.
03-02-2016
Barry YAMPOL, Appellant, v. SCHINDLER ELEVATOR CORPORATION, et al., Appellees.
Legon Fodiman and Todd R. Legon and Jeffrey A. Sudduth, for appellant. Cole Scott & Kissane and Jennifer V. Ruiz, for appellees Joel August, Jack Siegal, Mwafak Peress, and Norman Schreiber.
Legon Fodiman and Todd R. Legon and Jeffrey A. Sudduth, for appellant.
Cole Scott & Kissane and Jennifer V. Ruiz, for appellees Joel August, Jack Siegal, Mwafak Peress, and Norman Schreiber.
Opinion
EMAS, J.
We affirm the trial court's final judgment awarding attorney's fees to appellees as “prevailing parties” pursuant to section 718.303(1),1 Florida Statutes (2008), following appellant's voluntary dismissal without prejudice. The trial court properly followed Thornber v. City of Fort Walton Beach, 568 So.2d 914 (Fla.1990), which established, as a general rule, that “when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party.” Id. at 919 (citing Stuart Plaza, Ltd. v. Atlantic Coast Dev. Corp., 493 So.2d 1136 (Fla. 4th DCA 1986)).
In announcing the general rule, the Thornber Court did not exempt from its scope voluntary dismissals without prejudice. The general rule of Thornber has properly been applied to confer prevailing party status where the voluntary dismissal was without prejudice, even if the plaintiff later refiles the same suit. See, e.g., State ex rel. Marsh v. Doran, 958 So.2d 1082 (Fla. 1st DCA 2007); Alhambra Homeowners Ass'n v. Asad, 943 So.2d 316 (Fla. 4th DCA 2006). There are undoubtedly cases in which the general rule may be inapplicable to a particular set of circumstances, and one might logically argue those circumstances are more likely to be found where the voluntary dismissal was without prejudice rather than with prejudice. However, there is nothing in the record below to support the position, urged by appellant, that the general rule of Thornber was inapplicable to the particular circumstances of the instant case. To the contrary, the facts of the instant case are, in relevant respect, nearly identical to those in Asad, in which the Fourth District held that a voluntary dismissal without prejudice “[i]n the face of a likely adverse ruling on [defendants'] motion for summary judgment” conferred prevailing party status upon defendants in the context of a similar statutory prevailing party fee provision. Asad, 943 So.2d at 319.
Moreover, although appellant urges us to reverse and remand because the trial court failed to conduct an evidentiary hearing before ruling, appellant took a contrary position in the trial court, urging the trial court that such a hearing was not necessary. A party cannot invite certain action by the trial court only to assert on appeal that the trial court's action was erroneous. Gupton v. Village Key & Saw Shop, Inc., 656 So.2d 475 (Fla.1995); Pope v. State, 441 So.2d 1073 (Fla.1983). “One who has contributed to alleged error will not be heard to complain on appeal.” Behar v. Southeast Banks Trust Co., N.A., 374 So.2d 572, 575 (Fla. 3d DCA 1979). In doing so, appellant has waived this issue on appeal and we therefore do not reach the merits of that claim.
Affirmed.