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A commercial landlord voluntarily dismissed its eviction  after the tenants vacated the property and returned the keys.   The former tenant then filed for attorney’s fees as a result of the voluntary dismissal.

The court ruled that this falls outside that general rule that when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party. The rule is not without exceptions. In this case, the Plaintiff obtained the relief it sought — the Defendants vacated the premises after initiation of the lawsuit and then delivered the keys to the Plaintiff’s agents, which triggered the Plaintiff to file its voluntarily dismissal. Defendant’s actions effectively rendered moot Plaintiff’s lawsuit, but in no way can be said that the Defendant “prevailed,” much less “substantially prevailed.” Kelly v. BankUnited FSB, 159 So.3d 403, 406-07 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D684a]; Tubbs v. Mechanik Nuccio Hearne & Wester, P.A., 125 So.3d 1034, 1041-42 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D1611d]; Padow v. Knollwood Club Ass’n, 839 So.2d 744, 745-46 (Fla 4th DCA 2006) [28 Fla. L. Weekly D123d]. As was the case in Kelly, the case of Alhambra Homeowners Ass’n v. Assad, 943 So.2d 316 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D3118a] is clearly distinguishable. To rule otherwise would, in the Court’s view, encourage gamesmanship.

FAMSUN INVEST LLC, vs. IRVI INTERNATIONAL LLC, County Court, 17th Judicial Circuit in and for Broward County.  24 Fla. L. Weekly Supp. 889a

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