27 Fla. L. Weekly Supp. 373a

Online Reference: FLWSUPP 2704BEITInsurance — Property — Attorney’s fees — Where insureds filed voluntary dismissal of suit less than 24 hours before hearing on insurer’s motion for summary judgment, to which insureds had offered no opposing evidence, dismissal was at stage of litigation equivalent to summary judgment, and insureds had no absolute right to voluntary dismissal — Allowing insureds to avoid liability for attorney’s fees and costs by strategic move of voluntarily dismissing suit on eve of summary judgment and re-filing action before another judge would be grossly inequitable — Insurer’s motion for final summary judgment is granted, and voluntary dismissal is stricken

DANIEL BEITRA and JEANNETTE BEITRA, Plaintiffs, v. CITIZENS PROPERTY INSURANCE CORPORATION, Defendant. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. CACE-17-012159, Division 09. June 6, 2019. Jeffrey R. Levenson, Judge. Counsel: Daniel Norton, Shochet Law Group, Lake Worth, for Plaintiffs. Michael J. Kranzler, Goldstein Law Group, P.A., Fort Lauderdale, for Defendant.

ORDER ON DEFENDANT’S AMENDED RENEWEDMOTION FOR ENTRY OF FINAL JUDGMENT

THIS CAUSE having come to be heard before the Court on Defendant’s Amended Renewed Motion for Entry of Final Judgment, and the Court having considered the record, having heard counsel and being otherwise advised in the Premises, finds as follows:

I. STATEMENT OF FACTS

This matter stems from a first party property insurance lawsuit filed by the Plaintiffs seeking the recovery of insurance benefits, for a loss allegedly occurring on or about June 30, 2012. Litigation ensued, and the Defendant subsequently filed their Motion for Final Summary Judgment on June 6, 2018, and the Parties mutually coordinated a hearing on Defendant’s Motion for Final Summary Judgment to occur before this Court on September 18, 2018 at 9:30AM. The Defendant had previously served the Plaintiffs with Proposals for Settlement (which have since expired without acceptance) and a safe harbor letter pursuant to Florida Statute § 57.105, and subsequently filed with this Court its motion seeking an award of sanctions pursuant to Florida Statute § 57.105, titled “Defendant’s Notice of Intent to Seek Attorney’s Fees and Costs Pursuant to Section 57.105 F.S.” on June 15, 2018.¹ On September 17, 2018, at 2:43 PM, the Plaintiffs filed their Notice of Voluntary Dismissal Without Prejudice for the above-captioned action, rendering moot the Defendant’s Motion for Final Summary Judgment.

On October 2, 2018, the Plaintiffs re-filed this lawsuit as a new cause of action, before the Honorable Martin Bidwill. This Court quickly entered an Order transferring this matter away from Judge Bidwill and back before this Court, as it was premised on the exact same alleged loss as the instant lawsuit previously dismissed by the Plaintiffs. However, this second filing, of the original lawsuit occurred more than a year after the expiration of the statute of limitations. As such, the Court has already entered an Order Granting Defendant’s Motion to Dismiss Plaintiffs’ Complaint with Prejudice for Expiration of Statute of Limitations. At the Parties’ February 19, 2019 hearing, counsel for the Plaintiffs, Daniel Norton, Esq., admitted on the record that the voluntary dismissal prior to summary judgment “was just a strategic move to try to clean things up.” See February 19, 2019 Transcript at 4:12-17.

The Defendant now presents to this Court its Amended Renewed Motion for Entry of Final Judgment, seeking to have the Court strike the Plaintiffs’ Voluntary Dismissal Without Prejudice pursuant to Florida Rule 1.540(b), and enter in its place a Final Judgment in favor of the Defendant. For the reasons outlined below, the Court grants Defendant’s Motion.

II. ANALYSIS

“Florida Rule of Civil Procedure 1.420(a). . . gives plaintiffs the right to voluntarily dismiss their action at any time ‘before a hearing on motion for summary judgment, or if none is served or if the motion is denied, before retirement of the jury in a case tried before a jury or before submission of a nonjury case to the court.’ Until the line drawn by this rule is crossed, the plaintiff’s right to a voluntary dismissal is ‘absolute.’ ” Patterson v. Allstate Insurance Co., 884 So. 2d 178, 180 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D1708a], citing Fears v. Lunsford, 314 So. 2d 5788 (Fla. 1975). However, [t]here are limited exceptions to a plaintiff’s ‘absolute’ right to take a voluntary dismissal as a matter of right: (1) if there is fraud on the court, (2) if the defendant can establish the common law exception to the right of voluntary dismissal, or (3) if the plaintiff dismisses the case at a stage which is deemed the equivalent of a summary judgment.” Serv. Experts, LLC v. Northside Air Conditioning & Elec. Serv., 56 So. 3d 26, 29-30 (Fla. 2d DCA 2010) [35 Fla. L. Weekly D2512a].

Here, the Plaintiffs filed their voluntary dismissal on the eve of the summary judgment hearing, at a time where the deadline for submitting evidence in opposition had already passed with no evidence being offered by the Plaintiffs. This Court had also previously ordered the Plaintiffs to file a Response prior to the hearing on Defendant’s Motion for Final Summary Judgment, one of four Orders violated by the Plaintiffs and their counsel in this matter. The Plaintiffs voluntarily dismissed their lawsuit less than 24 hours before the hearing on Defendant’s Motion for Final Summary Judgment, which reasonably constitutes a stage of litigation which is the equivalent of summary judgment. As such, there is an applicable exception to the Plaintiffs’ “absolute” right to a voluntary dismissal here.

Relief is permitted, pursuant to Florida Rule of Civil Procedure 1.540(b), due to “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing,” as well as instances of “fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.” See Id. (Emphasis added.) Here, the Plaintiffs have violated four of this Court’s Orders, and not only failed to offer any evidence in opposition to the Defendant’s Motion for Entry of Final Judgment, but further failed to file anything in opposition to the instant Motion filed by the Defendant seeking entry of final judgment. In fact, at the Parties’ June 4, 2019 hearing on Defendant’s Amended Renewed Motion for Entry of Final Judgment, counsel for the Plaintiffs simply requested that this Court grant the Defendant’s Motion and enter final judgment in favor of the Defendant so that he could take up the matter on appeal. Further, counsel for the Plaintiffs has already admitted on the record that the voluntary dismissal was a “strategic move,” and the Plaintiffs’ subsequent conduct in re-filing this same lawsuit reasonably demonstrates that they did so solely in an attempt to avoid liability for the sanctions pursuant to Florida Statute § 57.105 the expired Proposals for Settlement. This is not an appropriate application of the Plaintiffs’ right to a voluntary dismissal.

The sole argument raised in opposition to the relief sought by the Defendant here is the Plaintiffs’ claim that this Court lacks the jurisdiction to issue any award of attorney’s fees and costs for any reason to the Defendant because of the Plaintiffs’ voluntary dismissal of the above-captioned lawsuit. As previously stated on the record at the February 19, 2019 hearing, the Court disagrees with the Plaintiffs’ reasoning. See February 19, 2019 Transcript at 29:8-17; See also Pino v. Bank of New York, etc., et al. (“If the plaintiff does not file a notice of voluntary dismissal or withdraw the offending pleading within twenty-one days of a defendant’s request for sanctions under section 57.105, the defendant may file the sanctions motion with the trial court, whereupon the trial court will have continuing jurisdiction to resolve the pending motion and to award attorney’s fees under that provision if appropriate, regardless of the plaintiff’s subsequent dismissal.”) 121 So. 3d 23 at 42-3 [38 Fla. L. Weekly S78a] (Emphasis added.)

To permit the Plaintiffs to avoid liability for attorney’s fees and costs which are procedurally proper simply by voluntarily dismissing the lawsuit and re-filing it in front of another judge would be grossly inequitable, and this Court declines to permit such a tactic as an end-run around the Court’s authority. Such actions, coupled with the totality of the misconduct by the Plaintiffs and their counsel in this matter, which has been thoroughly documented in the record of this case, demonstrate that the Defendant is reasonably entitled to relief pursuant to Florida Rule of Civil Procedure 1.540(b). Based upon the record evidence, arguments of counsel, and the Court’s analysis as outlined in greater detail above, this Court grants the Defendant’s Amended Renewed Motion for Entry of Final Judgment, striking the Plaintiffs’ Notice of Voluntary Dismissal Without Prejudice pursuant to Florida Rule of Civil Procedure 1.540(b) and entering final judgment in favor of the Defendant and against the Plaintiffs.

Accordingly, it is hereby ORDERED AND ADJUDGED:

1. Defendant’s Amended Renewed Motion for Entry of Final Judgment is hereby GRANTED.

2. The Plaintiffs’ Notice of Voluntary Dismissal Without Prejudice is hereby stricken pursuant to Florida Rule of Civil Procedure 1.540(b) due to the misconduct of the Plaintiffs and their counsel.

3. Final Judgment is hereby entered for the Defendant, Citizens Property Insurance Corporation, and against the Plaintiffs, Daniel Beitra and Jeannette Beitra. The Plaintiffs shall take nothing by this action and the Defendant shall go hence without day.

4. The Court reserves jurisdiction to consider a timely motion to tax costs and attorney’s fees, as well as any other motion for entitlement to attorney’s fees and costs as is just and proper.

__________________

¹This Court has already granted the Defendant’s entitlement to sanctions pursuant to Florida Statute § 57.105 due to the overwhelming record in support of the relief sought by the Defendant, which was memorialized on the record at the Parties’ February 19, 2019 hearing, the transcript for which has been filed with the Court and is available on the Court’s docket.