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...

22 January

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Consider Prevailing Party Attorney’s Fees before Voluntarily Dismissing Case

Posted by David Adelstein

in Trial Perspectives

Here is an important thing to note: do NOT just voluntarily dismiss a lawsuit where there is a basis for attorney’s fees because you could be liable for the other party’s fees. This was the unfortunate circumstance in Catamaran B.Y., Inc. v. Giordano, 47 Fla.L.Weekly D179a (Fla. 3d DCA 2022). This is an unfortunate circumstance you absolutely want to avoid. In this case, a plaintiff voluntarily dismissed his lawsuit against the defendant without prejudice. The defendant then moved for attorney’s fees based on a contractual attorney's fees provision between the parties. The trial court denied the defendant's motion for attorney’s fees...

25 December

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Proposals for Settlement and Dismissals WITHOUT PREJUDICE

Posted by David Adelstein

in Trial Perspectives

I have talked about proposals for settlement in a number of prior postings. (See here, here, and here for a few of these postings.). Proposals for settlement are a vehicle to create an argument for attorney’s fees under Florida Rule of Civil Procedure 1.442 and Florida Statute s. 768.79. A party receiving a proposal for settlement has 30 days to accept the proposal. If they do not, it triggers an argument to recover attorney’s fees from the date of the proposal for settlement on forward based on the amount of the recovered judgment. However, Florida cases have held that even if...