Scherer Construction & Engineering of Central Florida, LLC v. Scott Partnership Architecture, Inc.
151 So. 3d 528
Fla. Dist. Ct. App.2014Background
- Scherer sued TSPA as a third‑party defendant on two counts: contribution and indemnification. No contractual fee-shifting provision appears in the record.
- TSPA served a proposal for settlement under Florida’s offer‑of‑judgment statute (section 768.79). Scherer did not accept within the time allowed.
- The trial court granted summary judgment in favor of TSPA on the contribution count.
- Scherer then filed a notice of voluntary dismissal without prejudice as to the remaining indemnification count.
- The trial court entered separate final judgments awarding TSPA attorney’s fees and costs based on the proposal for settlement; Scherer appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TSPA may recover attorney’s fees under Fla. Stat. §768.79 for defending an indemnity claim that Scherer voluntarily dismissed without prejudice | Scherer argued TSPA was not entitled to fees for defense of the indemnity claim because Scherer voluntarily dismissed it without prejudice prior to any adjudication | TSPA argued it was entitled to fees under its proposal for settlement because it prevailed on the action overall and had a timely offer | The court held fees are not recoverable for the voluntarily dismissed indemnity claim; MX Investments and related authority bar §768.79 recovery unless dismissal is with prejudice. |
| Whether TSPA entitled to fees for defending the contribution claim and to costs as prevailing party | Scherer contended the overall dismissal and posture undermined TSPA’s prevailing‑party status for fee/cost recovery | TSPA contended it prevailed on the contribution claim (summary judgment) and was entitled to fees and costs under the proposal for settlement | The court affirmed fees awarded for defense of the contribution claim and affirmed the award of costs. |
Key Cases Cited
- MX Invs., Inc. v. Crawford, 700 So.2d 640 (Fla. 1997) (offer‑of‑judgment statute does not permit attorney’s‑fee awards unless dismissal is with prejudice)
- Ormond Beach Assocs. Ltd. v. Citation Mort., Ltd., 835 So.2d 292 (Fla. 5th DCA 2002) (applying MX Investments to bar fee recovery after voluntary dismissal without prejudice)
- Smith v. Loews Miami Beach Hotel Operating Co., Inc., 35 So.3d 101 (Fla. 3d DCA 2010) (same: voluntary dismissal without prejudice defeats §768.79 fee claim)
- Randle‑E. Ambulance Serv., Inc. v. Vasta, 360 So.2d 68 (Fla. 1978) (voluntary dismissal without prejudice deprives court of jurisdiction to enter final judgment on dismissed claim)