Attorneys Fees and Costs after Voluntary Dismissal Under 9.350(b)

A colleague recently asked me whether a notice of voluntary dismissal of an appeal should deal with or mention attorneys fees and costs. In Florida’s intermediate appellate courts the appellant can voluntarily dismiss the appeal by filing a notice of voluntary dismissal with the court, pursuant to Florida Rule of Appellate Procedure 9.350(b). (Notice the contrast to trial court practice, where it is service of a notice of voluntary dismissal, not filing, that ends the case, per Florida Rule of Civil Procedure 1.420). But what is the effect of that dismissal on a claim for attorney’s fees, and is the appellee entitled to costs?

Entitlement to Fees and Costs

The case law on this issue is sparse, but makes it clear that such a dismissal likely renders to the appellee the prevailing party for purposes of the fee and costs analysis. The Third District has stated that, while an appellee may technically be entitled to fees and costs, the court will not grant a fee award before any briefing has occurred because appellee’s fees would be de minimus. See Sanchez v. State Farm Florida Ins. Co., 997 So. 2d 1209 (Fla. 3d DCA 2008) [.pdf]. The First District more recently disagreed with this de minimus stance (and with Judge Judge Shepherd’s dissent in Sanchez), holding that there is no de minimis exception when determining entitlement to a fee award. First Real Estate, LLC v. Grant, 88 So. 3d 1073 (Fla. 1st DCA 2012) [.pdf].

And while the Second District Court of Appeal hasn’t ruled on this issue in the context of voluntary dismissal, it has signaled that it would like to follow the de minimus approach of the Third District, but feels constrained by the statute to allow at least offer of settlement attorneys fees when an appeal has been dismissed prior to briefing. Braxton v. Grabowski, No. 2D12-2708, ___ So.3d ___, 38 Fla. L. Weekly D1157 (Fla. 2d DCA May 24, 2013) [.pdf]. In Braxton, the appeal was dismissed for lack of prosecution rather than voluntarily dismissed (or at least, the voluntary dismissal crossed in the mail with the dismissal order, and because at the appellate level voluntary dismissal is accomplished by filing not service, the lack of prosecution order was the operative order). Still, the court concluded on rehearing that it had no choice but to grant the appellee’s motion for attorney’s fees under Section 768.79, Florida Statutes.

Practical Effect on Costs

Even if the appellee is entitled to costs, are there any costs to collect? Not likely. Taxable appellate costs are very narrowly defined as:

(1) fees for filing and service of process;
(2) charges for preparation of the record;
(3) bond premiums; and
(4) other costs permitted by law.

None of these narrow class of costs were likely paid by the Appellee. So while there may be entitlement, there’s most likely nothing to tax.

Practical Effect on Fees

If a voluntary dismissal is filed, best to serve that attorney’s fee motion quickly. A motion for appellate attorneys fees is generally due pursuant to Florida Rule of Appellate Procedure 9.400 “not later than the time for service of the reply brief” and where no reply brief will ever become due, it is unclear what the deadline would be. Entitlement to fees is not automatic — the Appellee must still show that there is a legal basis, either in statute or contract, for the award.