Opinion
No. 2D21-1262
05-18-2022
Edgar J. ORTUZAR, Appellant, v. Dana D. FOLEY, Appellee.
Mark J. Albrechta of Law Office of Mark J. Albrechta, Tampa, for Appellant. Gary M. Schaaf of Becker & Poliakoff, P.A., Tampa, for Appellee.
Mark J. Albrechta of Law Office of Mark J. Albrechta, Tampa, for Appellant.
Gary M. Schaaf of Becker & Poliakoff, P.A., Tampa, for Appellee.
LABRIT, Judge.
Appellant Edgar Ortuzar appeals an award of attorney's fees to Appellee Dana Foley stemming from a residential eviction case. We reverse because Ms. Foley is not entitled to fees under the applicable statute or the lease.
Background
In October of 2020, Mr. Ortuzar sued to evict Ms. Foley from property Mr. Ortuzar owned. The trial court ordered the parties to mediation. Shortly thereafter, Mr. Ortuzar filed a notice of voluntary dismissal which stated that "this cause has been resolved between [the] parties." Neither party requested the trial court to enter an order on the notice or final judgment on Mr. Ortuzar's claim, and no such order or judgment is in the record.
Three weeks after the dismissal notice was filed, Ms. Foley moved for "prevailing party" attorney's fees. The trial court granted the motion and entered a final judgment awarding Ms. Foley $3,500 in attorney's fees "pursuant to [s]ection 83.48, Florida Statutes and [p]aragraph 26 of the lease at issue." The court found that Ms. Foley was the prevailing party within the meaning of the statute and the lease because Mr. Ortuzar had filed the notice of voluntary dismissal. Mr. Ortuzar timely appealed.
Discussion
We generally review a "trial court's determination of the prevailing party" for abuse of discretion, but we apply a de novo standard "when the trial court's determination of which party prevails depends on the interpretation of a statute or contract." IOU Cent. Inc. v. Pezzano Contracting & Dev., LLC , 311 So. 3d 295, 298 (Fla. 2d DCA 2020) ; see also Kelly v. Bankunited, FSB , 159 So. 3d 403, 405 (Fla. 4th DCA 2015). We apply the de novo standard here because the trial court's award of attorney's fees to Ms. Foley depends on the interpretation of section 83.48, Florida Statutes (2020), and the lease.
In relevant part, section 83.48 provides that "[i]n any civil action brought to enforce the provisions of the rental agreement ... the party in whose favor a judgment or decree has been rendered may recover reasonable attorney fees and court costs from the nonprevailing party." Id . (emphasis added). Generally speaking, "[s]tatutes awarding attorney's fees must be strictly construed." Fla. Hurricane Prot. & Awning, Inc. v. Pastina , 43 So. 3d 893, 895 (Fla. 4th DCA 2010) (citing Willis Shaw Express, Inc. v. Hilyer Sod, Inc ., 849 So. 2d 276, 278 (Fla. 2003) ).
The fee provision in the lease tracks the statutory text and provides that "[i]n any lawsuit brought to enforce the Lease or under applicable law, the party in whose favor a judgment or decree has been rendered may recover reasonable court costs, including attorneys' fees, from the non[ ]prevailing party." (Emphasis added.)
Mr. Ortuzar argues that the trial court erred by awarding Ms. Foley attorney's fees since no judgment or decree was rendered in Ms. Foley's favor after the notice of voluntary dismissal was filed. We agree. Because the trial court did not render a judgment or decree in her favor, Ms. Foley was not entitled to a fee award under the plain language of the statute and the lease.
Pointing to Thornber v. City of Fort Walton Beach , 568 So. 2d 914, 919 (Fla. 1990), Ms. Foley argues that she is entitled to fees as the prevailing party because Mr. Ortuzar voluntarily dismissed the suit. Thornber is inapposite. It involved section 111.07, Florida Statutes (1981), which authorized reimbursement of attorney's fees to "prevailing defendants" in suits against public officials. Thornber , 568 So. 2d at 918. As the supreme court explained, "[a] determination on the merits is not a prerequisite to an award of attorney's fees where the statute provides that they will inure to the prevailing party." Id. at 919.
Section 83.48 does not provide that attorney's fees will inure to "the prevailing party"; it provides that a party in whose favor "a judgment or decree has been rendered" may recover fees from the nonprevailing party. As in all matters of statutory interpretation, our duty is to give this text its plain and ordinary meaning. See Debaun v. State , 213 So. 3d 747, 751 (Fla. 2017). A "judgment" is a final adjudication of the merits of an action, see Makar v. Invs. Real Est. Mgmt. , 553 So. 2d 298, 299 (Fla. 1st DCA 1989), and a "decree" is a judgment in an equitable action, see Nichols v. Bodenwein , 107 Fla. 25, 146 So. 86, 93 (1932) ; see also Decree , Black's Law Dictionary (11th ed. 2019) ("The chief differences between decrees in equity and judgments at common law are as follows: The former are pronounced by courts of equity; the latter, by courts of law."). Giving the phrase "judgment or decree" its plain and ordinary meaning, section 83.48 requires an adjudication of the merits in favor of the party seeking fees. And a voluntary dismissal without prejudice is not an adjudication of the merits. See Makar , 553 So. 2d at 298–99. Accordingly, the trial court lacked authority to award fees in favor of Ms. Foley. Id . at 299 ("Attorney's fees are permitted only in those classes of cases the legislature has specifically identified" and that courts cannot "enlarge[ ] or expand[ ]" a statute "to cover cases not falling within its provisions.").
Mr. Ortuzar's notice of voluntary dismissal was silent as to whether it was with or without prejudice. Consequently, the dismissal was without prejudice. See Fla. R. Civ. P. 1.420(a)(1).
Section 83.48 is functionally equivalent to section 627.428, Florida Statutes (2021), which authorizes an award of attorney's fees to an insured "upon the rendition of a judgment or decree ... against an insurer and in favor of any named or omnibus insured ... under a policy or contract executed by the insurer." See Traveler's Indem. Co. v. Chisholm , 384 So. 2d 1360, 1361 (Fla. 2d DCA 1980) (stating that "[s]uch a fee award pursuant to statute is recognized as a penalty provision"). In the context of section 627.428, the trial court's jurisdiction "to award attorney's fees ... is dependent upon conditions imposed by the statute. The paramount condition is the entry of a judgment against the insurer and in favor of the insured." Id. So, too, in the context of section 83.48, the "paramount condition" that must be met for a trial court to award attorney's fees is that a judgment or decree must be rendered in favor of the party seeking fees. And none was. We therefore reverse the judgment awarding attorney's fees to Ms. Foley.
Reversed.
CASANUEVA and VILLANTI, JJ., Concur.