Construction litigation is expensive. It is important to understand your rights to recover attorney’s fees, including how and when to seek them, or you could be left footing the bill.
Every Florida attorney knows the rule that any party seeking attorney’s fees must serve a motion no later than thirty (30) days after the filing of a judgment.
That includes a judgment of dismissal, or the service of a motion of voluntary dismissal, which judgment or notice concludes the action as to that party.
But … what if the owner of a construction project is inappropriately named as a defendant in a lien foreclosure action or a construction defect action?
Seeking Attorney’s Fees Situation Example
You explain to plaintiff’s counsel why your client is an improper party, but your argument falls on deaf ears. So you are forced to file a motion to dismiss.
At a hearing on another defendant’s motion to dismiss, the court grants the motion with leave for plaintiff to file an amended complaint. Prior to your client’s motion being heard, the plaintiff files an amended complaint dropping your client as a party defendant.
Does the filing of the amended complaint trigger the 30-day time limit for you to file a motion for attorney’s fees as a prevailing party?
The requirements set forth in Fla. R. Civ. P. 1.525 are applicable, though they do not clearly answer the question. The defendant was neither dropped as a party defendant as the result of a judgment of dismissal nor by the service of a motion of voluntary dismissal.
Instead, the defendant was dropped as a party defendant as a result of the filing of an amended complaint. Under a strict construction of Fla. R. Civ. P. 1.525, the 30 day time period would not be applicable to the defendant being dropped from the case as the result of the filing of the amended complaint. As set forth below, this strict construction interpretation is a trap for the unwary.
A further analysis is required as to the methodology by which parties may be dropped in compliance with the Florida Rules of Civil Procedure. Fla. R. Civ. P. 1.250(b) governs “dropping parties.” There are, in essence, 3 instances in which a party may be dropped by an adverse party in facts analogous to our hypothetical:
In the manner provided for voluntary dismissal in Fla. R. Civ. P. 1.420(a)(1);
By order of the court on its own initiative; OR
On motion of any party at any stage of the action and on such terms as are just.
There is no provision contained in Fla. R. Civ. P. 1.250(b) authorizing a party be dropped by an adverse party as the result of the serving of an amended pleading pursuant to Fla. R. Civ. P. 1.190(a).
Strangely, Fla. R. Civ. P. 1.250 only authorizes the adding of parties through the filing of an amended pleading.
If a court grants a motion to dismiss but grants the plaintiff leave to amend, this authorizes the plaintiff to add or drop parties in the amended pleading.
“Naturally, an amended affirmative pleading filed under Rule 1.190, which omits all claims that had previously been asserted against one of the parties in the prior pleading, would have the effect of dropping that party voluntarily from the action. However, because Rule 1.250 refers to Rule 1.190(a) only in connection with the adding of parties, under subdivision (c), and not in connection with the dropping of parties, under subdivision (b), a pleading amendment which does nothing more than drop a party would probably have to be deemed a voluntary dropping of that party under and subject to Rule 1.250(b).”
In most instances, when a plaintiff voluntarily dismisses an action, the defendant is a prevailing party for awarding attorney’s fees.
There are exceptions to this general rule. A court may look behind a voluntary dismissal at the facts of the litigation to determine whether a party is a substantially prevailing party.
Exceptions to the Rule
In Siboni v. Allen, 52 So.3d 779, 781 (Fla. 5th DCA 2010), the court held that a party dropped from litigation under Fla. R. Civ. P. 1.250(b) is subject to the 30-day time limitation contained in Fla. R. Civ. P. 1.525, governing service of a motion seeking a judgment for costs and attorney’s fees.
The court stated that in order to reach this holding, it had “read the applicable rules in pari materia to reach this result, mindful of the purposes sought to be accomplished.” “Pari materia” is latin for “upon the same subject.”
Statutes or rules in pari materia must be interpreted in light of each other since they have a common purpose for comparable items. In Siboni, the Fifth District Court of Appeals applied the same logic as espoused in Bay View Inn v. Friedman, 545 F.2d 417 (Fla. 3d DCA 1989) to attorney’s fees as Bay View Inn applied to costs.
In Bay View Inn, the court held that a party dropped pursuant to Fla. R. Civ. P. 1.250(b) can utilize Rule 1.420(b) to recover costs. The Third District Court of Appeals explained that although Fla. R. Civ. P. 1.250(b) does not itself provide a basis for assessment of costs, it specifies that a party is dropped “in the manner provided for dismissal in Rule 1.420(a)(1).”
The court in Siboni held that there is no analytical difference in construing the rule’s application to requests for costs (Bay View Inn) than to construing the rule’s application to requests for attorney’s fees.
Accordingly, even though Fla. R. Civ. P. 1.525 makes no reference to the dropping of parties pursuant to Rule 1.250(b) as a trigger to commence the thirty (30) day deadline, the court in Siboni held that a party dropped from litigation under Fla. R. Civ. P. 1.250(b) is required to file a motion for attorney’s fees with thirty (30) days of being dropped or forever be barred from claiming attorney’s fees.
The Siboni case is the only Florida appellate case addressing this issue. Can an argument be made that the court in Siboni made an improper legislative decision and ignored the plain reading of Rule 1.525? Yes, but why take the risk?
Conclusion – Collecting Attorney’s Fees
Pursuant to Florida case law, a party dropped from litigation under Fla. R. Civ. P. 1.250(b) is subject to the 30-day time limitation contained in Fla. R. Civ. P. 1.525, governing service of a motion seeking a judgment for costs and attorney’s fees.
Even though the filing of an amended pleading does not explicitly trigger the 30-day time period under Rule 1.525, if a defendant gets dropped as a party as the result of the filing of an amended pleading, it is crucial to file any motion for attorney’s fees within thirty (30) days of of the defendant getting dropped.
Failure to adhere to this time period may result in the motion for attorney’s fees being denied by the court.