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Where the landlord filed an eviction and the tenant responded with defenses though legal counsel,  and the landlord filed a voluntary dismissal,  the tenant is entitled to recover his attorney’s fees pursuant to Fla. R. Civ. P. 1.420. Wilson v. Rose Printing Company, Inc., 624 So.2d 257 (Fla. 1993); Xanadu of Coco Beach, Inc. v. Lenz, 504 So 2d 518, 520 (Fla. 5th DCA 1987); Lampkin v. Bridgnanan, 17 Fla. L. Weekly Supp. 325a (Fla. 9th Cir. App. Ct. 2010); § 83.48, Fla. Stat.

The Fifth District Court of Appeal ruled a party may not take a voluntary dismissal for “strategic reasons” and thereby prevent the other party from being determined the “prevailing party.” Shepard v. Deutsche Bank Trust Company Americas, 38 So.3d 825 (Fla. 5th DCA 2010) (citing Vidibor v. Adams, 509 So.2d 973, 974 (Fla. 5th DCA 1987).

Pursuant to Fla. R. Civ. P. 1.420(d), “[c]osts in any action dismissed under this rule shall be assessed and judgment for costs entered in that action.” (emphasis added).

The Fifth District Court of Appeal held attorney’s fees are recoverable as an item of costs in residential tenant evictions. Xanadu of Coco Beach, Inc. v. Lenz, 504 So 2d 518, 520 (Fla. 5th DCA 1987) (citing § 83.48, Fla. Stat.).

The Court has no discretion and is mandated to award Defendant costs, including reasonable attorney’s fees, pursuant to Fla. R. Civ. P. 1.420(d). Wilson v. Rose Printing Company, Inc., 624 So.2d 257 (Fla. 1993); Lampkin v. Bridgnanan, 17 Fla. L. Weekly Supp. 325a (Fla. 9th Cir. App. Ct. 2010).

The Ninth Circuit Court in its appellate capacity acknowledged Fla. R. Civ. P. Rule 1.420(d) “makes no distinction between voluntary and involuntary dismissals” and noted there “is a line of Florida circuit appeal decisions reversing orders refusing to award attorney’s fees as part of costs in eviction cases where the plaintiff landlord took a voluntary dismissal.” Lampkin v. Bridgnanan, 17 Fla. L. Weekly Supp. 325a (Fla. 9th Cir. App. Ct. Feb. 23, 2010).

Statutory attorney’s fees may be awarded for litigating the issue of entitlement to attorney’s fees. State Farm Mutual Automobile Insurance Company v. Trevino, 904 So.2d 495 (Fla. 2005) [30 Fla. L. Weekly D1239b].

ELMER MERO,  vs. JUSTIN RODRIGUEZ. County Court, 9th Judicial Circuit in and for Orange County, Civil Division. Case No. 2011-CC-006188-O, Division 72. July 23, 2012. Wilfredo Martinez, Judge. 19 Fla. L. Weekly Supp. 945b

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