Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-1192 _____________________________ PIERRE A. GEORGES and MARIE Y. GEORGES, Appellants, v. AVANTI CONDOMINIUM ASSOCIATION, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Gary L. Wilkinson, Judge. July 13, 2021 OSTERHAUS, J. Pierre A. Georges and Marie Y. Georges appeal the trial court’s order denying them attorney’s fees following the voluntary dismissal of a condominium association’s foreclosure action against them. We affirm because the Georgeses were not prevailing parties in the litigation. Avanti Condominium Association filed a two-count complaint against the Georgeses for nonpayment of assessments. Count I was a foreclosure claim to foreclose the lien Avanti placed on the Georgeses’ condo unit. Count II sought money damages against the Georgeses personally for the unpaid assessments. The Georgeses moved to have the case dismissed but were unsuccessful. And the trial court denied both parties’ motions for summary judgment. Avanti later voluntarily dismissed the case after the mortgage holder foreclosed its superior lien. The Georgeses then moved for attorney’s fees and costs arguing they were entitled to prevailing party attorney’s fees because of Avanti’s dismissal. The trial court denied the motion finding that the voluntary dismissal did not make the Georgeses the prevailing party. “A trial court’s order on attorney’s fees . . . is generally reviewed for an abuse of discretion; however, such an order is reviewed de novo to the extent it is based on an issue of law.” Hall v. Lopez, 213 So. 3d 1003, 1005 (Fla. 1st DCA 2016) (citing Blue Infiniti, LLC v. Wilson, 170 So. 3d 136, 139 (Fla. 4th DCA 2015)). Generally, when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party for purposes of prevailing party attorney’s fee awards. Rushing v. Caribbean Food Prods., 870 So. 2d 953, 954–55 (Fla. 1st DCA 2004) (first citing Landry v. Countrywide Home Loans, Inc., 731 So. 2d 137, 139 (Fla. 1st DCA 1999); then citing Thornber v. City of Ft. Walton Beach, 568 So. 2d 914 (Fla. 1990)). But there are exceptions to the general rule when a plaintiff’s dismissal occurs under circumstances demonstrating that the defendant did not prevail. Cases finding an exception to the general rule “look behind a voluntary dismissal at the facts of the litigation ‘to determine whether a party is a substantially prevailing party.’” Tubbs v. Mechanik Nuccio Hearne & Wester, P.A., 125 So. 3d 1034, 1041 (Fla. 2d DCA 2013) (quoting Walter D. Padow, M.D., P.A. v. Knollwood Club Ass’n, 839 So. 2d 744, 745 (Fla. 4th DCA 2003)); see also Valencia Golf & Country Club Homeowners’ Ass’n v. Cmty. Res. Servs., Inc., 272 So. 3d 850, 852 (Fla. 2d DCA 2019) (finding neither party to have substantially prevailed where defendants had to provide documents and execute a separate agreement clarifying its obligations to the plaintiff as demanded in the complaint); Kelly v. Bankunited, FSB, 159 So. 3d 403, 406–07 (Fla. 4th DCA 2015) (finding neither party substantially prevailed after the mortgagee voluntarily dismissed its foreclosure action after a short-sale in which plaintiff received less than 25% of the amount claimed, but defendant lost his home and received none of the proceeds of the sale). 2 This case falls under the exception. Avanti voluntarily dismissed its case only after its foreclosure claim became moot because a superior lienor foreclosed. Although Avanti could not foreclose its lien, it could recover at least a portion of what it was due from the new property owner. Conversely, the upshot for the Georgeses was that they lost ownership of their property without prevailing on a significant issue in this litigation. The trial court was thus well within its discretion to conclude that Avanti’s dismissal did not make the Georgeses prevailing parties. See Skylink Jets, Inc. v. Klukan, 308 So. 3d 1048, 1053–54 (Fla. 4th DCA 2020) (noting the broad discretion given to trial courts by the Florida Supreme Court to determine which party, if any, prevailed); Prosperi v. Code, Inc., 626 So. 2d 1360, 1363 (Fla. 1993) (giving trial judge’s “discretion to consider the equities and determine which party has in fact prevailed on the significant issues”). Accordingly, we AFFIRM the trial court’s order denying the Georgeses’ motion to tax attorney’s fees and costs. B.L. THOMAS and M.K. THOMAS, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Brian K. Korte and Allegra P. Fung of Korte & Associates, West Palm Beach, for Appellants. Jacob Bair of Business Law Group, P.A., Tampa, for Appellee. 3