JOHN ANNESSER v. INNOVATIVE SERVICE TECHNOLOGY MANAGEMENT SERVICES, INC.

• Court: District Court of Appeal of Florida
• Decided: August 17, 2022
• Docket: 19-2429
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed August 17, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D19-2429 Lower Tribunal No. 17-12030 ________________

John Annesser, Appellant,

vs.

Innovative Service Technology Management Services Inc., Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Antonio Arzola, Judge.

Annesser Armenteros, PLLC, and John W. Annesser, Miguel Armenteros and Megan Conkey Gonzalez, for appellant.

GrayRobinson P.A., and Gary M. Carman and Richard F. Danese , for appellee.

Before LINDSEY, LOBREE, and BOKOR, JJ.

BOKOR, J. John Annesser, a partner and shareholder of the law firm Annesser

Armenteros, PLLC, appeals the trial court’s denial of his motion for costs and

fees following dismissal of a complaint in which he was named as a

defendant. As explained below, we affirm as to the denial of fees, but

reverse and remand as to the denial of costs.

BACKGROUND

Innovative Service Technology Management Services added

Annesser as a defendant in the first amended complaint. Annesser served

two offers of judgment under section 768.79, Florida Statutes, and Innovative

Services rejected both. Subsequently, Annesser moved to dismiss, which

the trial court granted, without prejudice. This dismissal without prejudice

constituted an involuntary dismissal under Florida Rule of Civil Procedure

1.420(b). Innovative Services filed a second amended complaint which

didn’t include Annesser as a defendant.1

After the conclusion of the matter as it pertained to him, Annesser

sought costs and fees. Annesser sought entitlement to costs under section

57.041, Florida Statutes, and Rule 1.420(d), and fees under section 768.79,

1 Annesser filed a motion seeking a dismissal with prejudice, which was never heard or ruled on by the trial court, and therefore not relevant to this appeal.

2 Florida Statutes, and Rule 1.420(a)(1). The trial court denied the motion,

equating the removal of Annesser from the second amended complaint to a

dismissal without prejudice that did not operate as an adjudication on the

merits entitling Annesser to costs or fees. This appeal followed.

ANALYSIS

Our review of a trial court’s determination as to a party’s entitlement to

costs and fees under a statute is a question of law reviewed de novo. See,

e.g., Magdalena v. Toyota Motor Corp., 253 So. 3d 24, 25 (Fla. 3d DCA

2017). Annesser first claims entitlement to court costs pursuant to section

57.041, Florida Statutes, and Florida Rule of Civil Procedure 1.420(d).

Section 57.041(1) provides that “[t]he party recovering judgment shall

recover all his or her legal costs and charges which shall be included in the

judgment.” As noted above, the trial court entered a dismissal without

prejudice. An involuntary dismissal without prejudice doesn’t constitute a

judgment on the merits. Importantly, the court entered the involuntary

dismissal. Therefore, the subsequent dismissal of Annesser by International

Services, after the court’s involuntary dismissal without prejudice, fails to

trigger the adjudication on the merits “second dismissal” provision under

Rule 1.420(a)(1). See Britt v. Knowles, 792 So. 2d 635, 635 (Fla. 4th DCA

2001); see also Bright v. Baltzell, 65 So. 3d 90, 93 (Fla. 4th DCA 2011)

3 (finding that voluntary dismissal following prior administrative closure of case

was not a “second dismissal” constituting an “adjudication on the merits” as

described in Rule 1.420(a)(1), because the court, not the plaintiff, dismissed

the prior action). So, 57.041(1) fails as a basis for costs because no

adjudication on the merits occurred.

But the inquiry doesn’t end there for costs. Rule 1.420(d) provides that

“[c]osts in any action dismissed under this rule shall be assessed and

judgment for costs entered in that action, once the action is concluded as to

the party seeking taxation of costs.” This portion of the rule makes no

distinction between final adjudication on the merits and dismissal without

prejudice, nor does it matter whether such dismissal occurred through an

involuntary dismissal by the court or a voluntary dismissal by a plaintiff.2

Here, the court acted under Rule 1.420(b) and involuntarily dismissed the

amended complaint against Annesser, without prejudice. Since the action

concluded with respect to Annesser, Rule 1.420(d) mandates entitlement to

costs. Wilson v. Rose Printing Co., 624 So. 2d 257, 258 (Fla. 1993) (“Rule

1.420(d) is unambiguous— costs are to be assessed in the action that is the

2 We have held that a party dropped pursuant to Florida Rule of Civil Procedure 1.250(b) is effectively “dismissed” within the meaning of Rule 1.420(a)(1), with the “same entitlement to costs which would have been enjoyed had the dismissal occurred entirely under Rule 1.420(a)(1).” Bay View Inn, Inc. v. Friedman, 545 So. 2d 417, 419 (Fla. 3d DCA 1989).

4 subject of the voluntary dismissal. . . . Where a nondismissing party seeks

costs under this rule, a court is without authority to defer assessment

pending disposition of a subsequent action.”); Peraza v. Citizens Prop. Ins.

Corp., 973 So. 2d 490, 492 (Fla. 3d DCA 2007) (quoting Wilson and

explaining that “[o]nce Citizens filed its voluntary dismissal, Peraza was

entitled to costs”). Accordingly, the trial court erred in denying entitlement to

costs under Rule 1.420(d).

However, we affirm the trial court’s denial of Annesser’s claim for

attorney’s fees. Annesser asserts an entitlement to fees under section

768.79, the offer of judgment statute. Section 768.79 entitles a defendant to

an award of attorney’s fees and costs where the defendant filed an offer of

judgment, not accepted by the plaintiff within 30 days, and “(1)

the judgment is one of no liability; (2) the judgment obtained by the plaintiff

is at least twenty-five percent less than the defendant's offer; or (3) the cause

of action was dismissed with prejudice.” Smith v. Loews Miami Beach Hotel

Operating Co., 35 So. 3d 101, 103 (Fla. 3d DCA 2010) (emphasis omitted).

Here, entitlement to fees under the offer of judgment statute fails for the

same reason explained in relation to the entitlement to costs under section

57.041(1). Nothing on the record constitutes a dismissal with prejudice or

final judgment or adjudication on the merits in favor of Annesser. To trigger

5 the offer of judgment statute, the dismissal must be with prejudice,

“represent[ing] a judgment of no liability.” See id. at 103 (relying on MX Invs.,

Inc. v. Crawford, 700 So. 2d 640, 642 (Fla. 1997). The court dismissed

Annesser without prejudice and he simply remained dismissed when

International Services chose not to add him to the subsequent complaint.3

Accordingly, we affirm the trial court’s denial of entitlement to fees.

Affirmed in part, reversed in part, and remanded.

3 The court ordered Annesser’s involuntary dismissal without prejudice. International Services’ affirmative representation that it wasn’t adding Annesser to the second amended complaint, at most, established that the action “[was] concluded as to the party [Annesser] seeking taxation of costs.” Fla. R. Civ. P. 1.420(d). But, as explained, it didn’t count as a second dismissal triggering the adjudication on the merits language of Rule 1.420(a)(1).