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Dismissal Without Prejudice does NOT Trigger Attorney’s Fees under Proposal for Settlements

When it comes to proposal for settlements from a defendant, there is both good news and bad news.  If a defendant serves a proposal for settlement, and the case is dismissed without prejudice, the good news is that the defendant is dismissed.  The bad news is that the dismissal without prejudice will NOT trigger the defendant’s right to obtain attorney’s fees pursuant to the proposal for settlement.

In Annesser v. Innovative Service Technology Management Services Inc., 47 Fla.L.Weekly D1738a (Fla. 3d DCA 2022), a defendant served a proposal for settlement after being served with the complaint. The defendant moved to dismiss the complaint against him. The trial court granted defendant’s motion to dismiss without prejudice. (“This dismissal without prejudice constituted an involuntary dismissal under Florida Rule of Civil Procedure 1.420(b).”).  The plaintiff elected not to bring the defendant back into the case.  The defendant moved for his attorney’s fees based on his proposal for settlement. The trial court denied the defendant’s right to attorney’s fees.  The appellate court affirmed.  Why?  Because a dismissal without prejudice is not an adjudication on the merits.

Section 768.79 [proposal for settlement statute] entitles a defendant to an award of attorney’s fees and costs where the defendant filed an offer of judgment, not accepted by the plaintiff within 30 days, and “(1) the judgment is one of no liability; (2) the judgment obtained by the plaintiff is at least twenty-five percent less than the defendant’s offer; or (3) the cause of action was dismissed with prejudice.” Annesser, supra, quoting Smith v. Loews Miami Beach Hotel Operating Co., 35 So.3d 101, 103 (Fla. 3d DCA 2010).  A dismissal without prejudice does not trigger the offer of judgment (proposal for settlement) statute. There must a be a dismissal with prejudice or adjudication on the merits to trigger its application. Annesser, supra.

Please contact David Adelstein at [email protected] or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.


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