Empathy List Archives

LO

Law Offices of Scott A. Frank

Thu, Aug 25, 2011 9:29 PM

Folks - quick residential question (from this commercial attorney) on the
need for a new 3-day notice to quit where there is a partial rent payment
accepted between the date of the original notice and the date the complaint
is filed.

Specifically - Tenant withheld part of July rent due to repairs and a demand
from the association (LL had been previously notified of need for repairs,
and tenant did in fact send invoices and itemization of deductions).
Landlord then sent a 3-day notice. Then in August, tenant again withheld
part of rent and made a partial payment. Next correspondence from the
landlord was the Complaint - no new 3-day notice.

So again the question is whether the lack of the new 3-day notice after
acceptance of partial rent precludes the eviction?

Any and all thoughts, ideas, etc. are most welcome.

Thanks.

Scott A. Frank

Attorney at Law

LAW OFFICES OF SCOTT A. FRANK, P.A.

7781 NW Beacon Square Boulevard, Suite 102

Boca Raton, FL 33487

p: (561) 372-7860

f: (561) 423-5721

mailto:sfrank@saflaw.com sfrank@saflaw.com

http://www.saflaw.com/ www.saflaw.com

If you believe that you have received this message in error, please notify
the sender by reply transmission and delete the message without copying or
disclosing it.

Pursuant to Internal Revenue Service guidance, be advised that any federal
tax advice contained in this written or electronic communication, including
any attachments or enclosures, is not intended or written to be used and it
cannot be used by any person or entity for the purpose of (i) avoiding any
tax penalties that may be imposed by the Internal Revenue Service or any
other U.S. Federal taxing authority or agency or (ii) promoting, marketing
or recommending to another party any transaction or matter addressed herein.

Folks - quick residential question (from this commercial attorney) on the need for a new 3-day notice to quit where there is a partial rent payment accepted between the date of the original notice and the date the complaint is filed. Specifically - Tenant withheld part of July rent due to repairs and a demand from the association (LL had been previously notified of need for repairs, and tenant did in fact send invoices and itemization of deductions). Landlord then sent a 3-day notice. Then in August, tenant again withheld part of rent and made a partial payment. Next correspondence from the landlord was the Complaint - no new 3-day notice. So again the question is whether the lack of the new 3-day notice after acceptance of partial rent precludes the eviction? Any and all thoughts, ideas, etc. are most welcome. Thanks. Scott A. Frank Attorney at Law LAW OFFICES OF SCOTT A. FRANK, P.A. 7781 NW Beacon Square Boulevard, Suite 102 Boca Raton, FL 33487 p: (561) 372-7860 f: (561) 423-5721 <mailto:sfrank@saflaw.com> sfrank@saflaw.com <http://www.saflaw.com/> www.saflaw.com If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it. Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

PH

Phyllis Harley

Thu, Aug 25, 2011 10:33 PM

Was the August partial payment of rent to landlord due to the tenant
paying part of rent to the association per demand? If yes, then tenant
has defense against eviction by landlord per 720.3085(8)(a) OR
718.116(11)(a): "A tenant is immune from any claim by the parcel owner
related to the rent timely paid to the association after the association
has made written demand."

The acceptance by landlord of partial payment after posting 3-day notice
would be a defense for tenant. This is why landlords usually reject
partial payments of rent after 3-day notice was posted and only accept
full payments. FS 83.56(5) If the landlord accepts rent with actual
knowledge of a noncompliance by the tenant or accepts performance by the
tenant of any other provision of the rental agreement that is at
variance with its provisions, or if the tenant pays rent with actual
knowledge of a noncompliance by the landlord or accepts performance by
the landlord of any other provision of the rental agreement that is at
variance with its provisions, the landlord or tenant waives his or her
right to terminate the rental agreement or to bring a civil action for
that noncompliance, but not for any subsequent or continuing
noncompliance.

Sincerely,

Phyllis Harley, Esquire

Harley Law Offices, P.A.

4417 13th Street, #177

Saint Cloud, FL 34769

321.766.6024

www.harleylawoffices.com

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the sender immediately through
response email or phone call. Please destroy this email by deletion
and/or shredding if printed.

A portion of this firm's practice involves collection of a debt. This
law firm may be deemed a "debt
collector" under the Fair Debt Collection Practices Act. Any and all
information obtained during and from
communications may be used for the purpose of collecting a debt.

IRS Circular 230 disclosure: To ensure compliance with requirements
imposed by the IRS, we inform you
that any U. S. Federal tax advice contained in this communication
(Including any attachments) is not
intended or written to be used, and cannot be used, for the purpose of
(i) avoiding penalties under the
Internal Revenue Code, or (ii) promoting, marketing, or recommending to
another party any transaction
or matter addressed herein.

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Law Offices
of Scott A. Frank
Sent: Thursday, August 25, 2011 5:29 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Requirement for 3-day Notice [Scanned]

Folks - quick residential question (from this commercial attorney) on
the need for a new 3-day notice to quit where there is a partial rent
payment accepted between the date of the original notice and the date
the complaint is filed.

Specifically - Tenant withheld part of July rent due to repairs and a
demand from the association (LL had been previously notified of need for
repairs, and tenant did in fact send invoices and itemization of
deductions). Landlord then sent a 3-day notice. Then in August, tenant
again withheld part of rent and made a partial payment. Next
correspondence from the landlord was the Complaint - no new 3-day
notice.

So again the question is whether the lack of the new 3-day notice after
acceptance of partial rent precludes the eviction?

Any and all thoughts, ideas, etc. are most welcome.

Thanks.

Scott A. Frank

Attorney at Law

LAW OFFICES OF SCOTT A. FRANK, P.A.

7781 NW Beacon Square Boulevard, Suite 102

Boca Raton, FL 33487

p: (561) 372-7860

f: (561) 423-5721

sfrank@saflaw.com

www.saflaw.com http://www.saflaw.com/

If you believe that you have received this message in error, please
notify the sender by reply transmission and delete the message without
copying or disclosing it.

Pursuant to Internal Revenue Service guidance, be advised that any
federal tax advice contained in this written or electronic
communication, including any attachments or enclosures, is not intended
or written to be used and it cannot be used by any person or entity for
the purpose of (i) avoiding any tax penalties that may be imposed by the
Internal Revenue Service or any other U.S. Federal taxing authority or
agency or (ii) promoting, marketing or recommending to another party any
transaction or matter addressed herein.

Was the August partial payment of rent to landlord due to the tenant paying part of rent to the association per demand? If yes, then tenant has defense against eviction by landlord per 720.3085(8)(a) OR 718.116(11)(a): "A tenant is immune from any claim by the parcel owner related to the rent timely paid to the association after the association has made written demand." The acceptance by landlord of partial payment after posting 3-day notice would be a defense for tenant. This is why landlords usually reject partial payments of rent after 3-day notice was posted and only accept full payments. FS 83.56(5) If the landlord accepts rent with actual knowledge of a noncompliance by the tenant or accepts performance by the tenant of any other provision of the rental agreement that is at variance with its provisions, or if the tenant pays rent with actual knowledge of a noncompliance by the landlord or accepts performance by the landlord of any other provision of the rental agreement that is at variance with its provisions, the landlord or tenant waives his or her right to terminate the rental agreement or to bring a civil action for that noncompliance, but not for any subsequent or continuing noncompliance. Sincerely, Phyllis Harley, Esquire Harley Law Offices, P.A. 4417 13th Street, #177 Saint Cloud, FL 34769 321.766.6024 www.harleylawoffices.com This message contains confidential information and is intended only for the individual or entity named. If you are not the named addressee in this e-mail, you are hereby notified that any review, dissemination, distribution, copying, forwarding of this e-mail is prohibited. Notify the sender immediately through response email or phone call. Please destroy this email by deletion and/or shredding if printed. A portion of this firm's practice involves collection of a debt. This law firm may be deemed a "debt collector" under the Fair Debt Collection Practices Act. Any and all information obtained during and from communications may be used for the purpose of collecting a debt. IRS Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U. S. Federal tax advice contained in this communication (Including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code, or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein. From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Law Offices of Scott A. Frank Sent: Thursday, August 25, 2011 5:29 PM To: RPPTL Landlord Tenant Committee Subject: [RPPTL LandTen] Requirement for 3-day Notice [Scanned] Folks - quick residential question (from this commercial attorney) on the need for a new 3-day notice to quit where there is a partial rent payment accepted between the date of the original notice and the date the complaint is filed. Specifically - Tenant withheld part of July rent due to repairs and a demand from the association (LL had been previously notified of need for repairs, and tenant did in fact send invoices and itemization of deductions). Landlord then sent a 3-day notice. Then in August, tenant again withheld part of rent and made a partial payment. Next correspondence from the landlord was the Complaint - no new 3-day notice. So again the question is whether the lack of the new 3-day notice after acceptance of partial rent precludes the eviction? Any and all thoughts, ideas, etc. are most welcome. Thanks. Scott A. Frank Attorney at Law LAW OFFICES OF SCOTT A. FRANK, P.A. 7781 NW Beacon Square Boulevard, Suite 102 Boca Raton, FL 33487 p: (561) 372-7860 f: (561) 423-5721 sfrank@saflaw.com www.saflaw.com <http://www.saflaw.com/> If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it. Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

CS

Cary Sabol

Fri, Aug 26, 2011 12:16 PM

My opinion is that your 3 day notice becomes defective once any payment is accepted. Our Judges in PBC will not hesitate to dismiss an eviction on those grounds and award atty fees to the tenant. I would suggest you voluntarily dismiss the case before the tenant incurs legal fees and re-serve a new 3 day and start the process over again.

Cary
Cary P. Sabol, Esq.
P.O. Box 15981
West Palm Beach, Florida 33416
Phone: (561) 281-2744

Confidentiality Notice: This email transmission and any attachments are confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or use of the information contained herein is STRICTLY PROHIBITED.

From: Law Offices of Scott A. Frank sfrank@saflaw.com
To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Sent: Thursday, August 25, 2011 5:29 PM
Subject: [RPPTL LandTen] Requirement for 3-day Notice

Folks – quick residential question (from this commercial attorney) on the need for a new 3-day notice to quit where there is a partial rent payment accepted between the date of the original notice and the date the complaint is filed.

Specifically – Tenant withheld part of July rent due to repairs and a demand from the association (LL had been previously notified of need for repairs, and tenant did in fact send invoices and itemization of deductions). Landlord then sent a 3-day notice. Then in August, tenant again withheld part of rent and made a partial payment. Next correspondence from the landlord was the Complaint – no new 3-day notice.

So again the question is whether the lack of the new 3-day notice after acceptance of partial rent precludes the eviction?

Any and all thoughts, ideas, etc. are most welcome.

Thanks.

Scott A. Frank
Attorney at Law
LAW OFFICES OF SCOTT A. FRANK, P.A.
7781 NW Beacon Square Boulevard, Suite 102
Boca Raton, FL 33487
p: (561) 372-7860
f: (561) 423-5721
sfrank@saflaw.com
www.saflaw.com

If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it.

Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

landten mailing list
landten@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/landten

My opinion is that your 3 day notice becomes defective once any payment is accepted. Our Judges in PBC will not hesitate to dismiss an eviction on those grounds and award atty fees to the tenant. I would suggest you voluntarily dismiss the case before the tenant incurs legal fees and re-serve a new 3 day and start the process over again. Cary Cary P. Sabol, Esq. P.O. Box 15981 West Palm Beach, Florida 33416 Phone: (561) 281-2744 Confidentiality Notice: This email transmission and any attachments are confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or use of the information contained herein is STRICTLY PROHIBITED. From: Law Offices of Scott A. Frank <sfrank@saflaw.com> To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.org> Sent: Thursday, August 25, 2011 5:29 PM Subject: [RPPTL LandTen] Requirement for 3-day Notice Folks – quick residential question (from this commercial attorney) on the need for a new 3-day notice to quit where there is a partial rent payment accepted between the date of the original notice and the date the complaint is filed. Specifically – Tenant withheld part of July rent due to repairs and a demand from the association (LL had been previously notified of need for repairs, and tenant did in fact send invoices and itemization of deductions). Landlord then sent a 3-day notice. Then in August, tenant again withheld part of rent and made a partial payment. Next correspondence from the landlord was the Complaint – no new 3-day notice. So again the question is whether the lack of the new 3-day notice after acceptance of partial rent precludes the eviction? Any and all thoughts, ideas, etc. are most welcome. Thanks. Scott A. Frank Attorney at Law LAW OFFICES OF SCOTT A. FRANK, P.A. 7781 NW Beacon Square Boulevard, Suite 102 Boca Raton, FL 33487 p: (561) 372-7860 f: (561) 423-5721 sfrank@saflaw.com www.saflaw.com If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it. Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. _______________________________________________ landten mailing list landten@lists.flabarrpptl.org http://mailman.fsr.com/mailman/listinfo/landten

AM

Alberto M. Cardet

Fri, Aug 26, 2011 1:50 PM

I agree with Cary, Judges in Miami-Dade will also dismiss, but not always award attorneys’ fees as fees are not mandatory

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Friday, August 26, 2011 8:17 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice

My opinion is that your 3 day notice becomes defective once any payment is accepted. Our Judges in PBC will not hesitate to dismiss an eviction on those grounds and award atty fees to the tenant. I would suggest you voluntarily dismiss the case before the tenant incurs legal fees and re-serve a new 3 day and start the process over again.

Cary

Cary P. Sabol, Esq.

P.O. Box 15981

West Palm Beach, Florida 33416

Phone: (561) 281-2744

Confidentiality Notice: This email transmission and any attachments are confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or use of the information contained herein is STRICTLY PROHIBITED.

From: Law Offices of Scott A. Frank sfrank@saflaw.com
To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Sent: Thursday, August 25, 2011 5:29 PM
Subject: [RPPTL LandTen] Requirement for 3-day Notice

Folks – quick residential question (from this commercial attorney) on the need for a new 3-day notice to quit where there is a partial rent payment accepted between the date of the original notice and the date the complaint is filed.

Specifically – Tenant withheld part of July rent due to repairs and a demand from the association (LL had been previously notified of need for repairs, and tenant did in fact send invoices and itemization of deductions). Landlord then sent a 3-day notice. Then in August, tenant again withheld part of rent and made a partial payment. Next correspondence from the landlord was the Complaint – no new 3-day notice.

So again the question is whether the lack of the new 3-day notice after acceptance of partial rent precludes the eviction?

Any and all thoughts, ideas, etc. are most welcome.

Thanks.

Scott A. Frank

Attorney at Law

LAW OFFICES OF SCOTT A. FRANK, P.A.

7781 NW Beacon Square Boulevard, Suite 102

Boca Raton, FL 33487

p: (561) 372-7860

f: (561) 423-5721

sfrank@saflaw.com

www.saflaw.com http://www.saflaw.com/

If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it.

Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

landten mailing list
landten@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/landten

I agree with Cary, Judges in Miami-Dade will also dismiss, but not always award attorneys’ fees as fees are not mandatory From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol Sent: Friday, August 26, 2011 8:17 AM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice My opinion is that your 3 day notice becomes defective once any payment is accepted. Our Judges in PBC will not hesitate to dismiss an eviction on those grounds and award atty fees to the tenant. I would suggest you voluntarily dismiss the case before the tenant incurs legal fees and re-serve a new 3 day and start the process over again. Cary Cary P. Sabol, Esq. P.O. Box 15981 West Palm Beach, Florida 33416 Phone: (561) 281-2744 Confidentiality Notice: This email transmission and any attachments are confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or use of the information contained herein is STRICTLY PROHIBITED. From: Law Offices of Scott A. Frank <sfrank@saflaw.com> To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.org> Sent: Thursday, August 25, 2011 5:29 PM Subject: [RPPTL LandTen] Requirement for 3-day Notice Folks – quick residential question (from this commercial attorney) on the need for a new 3-day notice to quit where there is a partial rent payment accepted between the date of the original notice and the date the complaint is filed. Specifically – Tenant withheld part of July rent due to repairs and a demand from the association (LL had been previously notified of need for repairs, and tenant did in fact send invoices and itemization of deductions). Landlord then sent a 3-day notice. Then in August, tenant again withheld part of rent and made a partial payment. Next correspondence from the landlord was the Complaint – no new 3-day notice. So again the question is whether the lack of the new 3-day notice after acceptance of partial rent precludes the eviction? Any and all thoughts, ideas, etc. are most welcome. Thanks. Scott A. Frank Attorney at Law LAW OFFICES OF SCOTT A. FRANK, P.A. 7781 NW Beacon Square Boulevard, Suite 102 Boca Raton, FL 33487 p: (561) 372-7860 f: (561) 423-5721 sfrank@saflaw.com www.saflaw.com <http://www.saflaw.com/> If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it. Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. _______________________________________________ landten mailing list landten@lists.flabarrpptl.org http://mailman.fsr.com/mailman/listinfo/landten

LC

Leonard Cabral

Fri, Aug 26, 2011 6:56 PM

Scott:

Acceptance of Rent is a waiver to a complaint. A new 3 day notice is
required any only past due rent should be listed on the notice unless the
lease describes any charges "as rent".

I just had a Default Final Judgment vacated and a Writ of Possession quashed
and complaint dismissed because the landlord accepted rent 3X after
complaint filed.

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Law Offices of
Scott A. Frank
Sent: Thursday, August 25, 2011 5:29 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Requirement for 3-day Notice

Folks - quick residential question (from this commercial attorney) on the
need for a new 3-day notice to quit where there is a partial rent payment
accepted between the date of the original notice and the date the complaint
is filed.

Specifically - Tenant withheld part of July rent due to repairs and a demand
from the association (LL had been previously notified of need for repairs,
and tenant did in fact send invoices and itemization of deductions).
Landlord then sent a 3-day notice. Then in August, tenant again withheld
part of rent and made a partial payment. Next correspondence from the
landlord was the Complaint - no new 3-day notice.

So again the question is whether the lack of the new 3-day notice after
acceptance of partial rent precludes the eviction?

Any and all thoughts, ideas, etc. are most welcome.

Thanks.

Scott A. Frank

Attorney at Law

LAW OFFICES OF SCOTT A. FRANK, P.A.

7781 NW Beacon Square Boulevard, Suite 102

Boca Raton, FL 33487

p: (561) 372-7860

f: (561) 423-5721

sfrank@saflaw.com

www.saflaw.com http://www.saflaw.com/

If you believe that you have received this message in error, please notify
the sender by reply transmission and delete the message without copying or
disclosing it.

Pursuant to Internal Revenue Service guidance, be advised that any federal
tax advice contained in this written or electronic communication, including
any attachments or enclosures, is not intended or written to be used and it
cannot be used by any person or entity for the purpose of (i) avoiding any
tax penalties that may be imposed by the Internal Revenue Service or any
other U.S. Federal taxing authority or agency or (ii) promoting, marketing
or recommending to another party any transaction or matter addressed herein.

Scott: Acceptance of Rent is a waiver to a complaint. A new 3 day notice is required any only past due rent should be listed on the notice unless the lease describes any charges "as rent". I just had a Default Final Judgment vacated and a Writ of Possession quashed and complaint dismissed because the landlord accepted rent 3X after complaint filed. _____ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Law Offices of Scott A. Frank Sent: Thursday, August 25, 2011 5:29 PM To: RPPTL Landlord Tenant Committee Subject: [RPPTL LandTen] Requirement for 3-day Notice Folks - quick residential question (from this commercial attorney) on the need for a new 3-day notice to quit where there is a partial rent payment accepted between the date of the original notice and the date the complaint is filed. Specifically - Tenant withheld part of July rent due to repairs and a demand from the association (LL had been previously notified of need for repairs, and tenant did in fact send invoices and itemization of deductions). Landlord then sent a 3-day notice. Then in August, tenant again withheld part of rent and made a partial payment. Next correspondence from the landlord was the Complaint - no new 3-day notice. So again the question is whether the lack of the new 3-day notice after acceptance of partial rent precludes the eviction? Any and all thoughts, ideas, etc. are most welcome. Thanks. Scott A. Frank Attorney at Law LAW OFFICES OF SCOTT A. FRANK, P.A. 7781 NW Beacon Square Boulevard, Suite 102 Boca Raton, FL 33487 p: (561) 372-7860 f: (561) 423-5721 sfrank@saflaw.com www.saflaw.com <http://www.saflaw.com/> If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it. Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

LC

Leonard Cabral

Sat, Aug 27, 2011 3:27 AM

Attorney's Fees are assessed under Rule 1.420(d) of the Florida Rules of
Civil Procedure if you voluntarily dismiss the case also and if you
voluntarily dismiss, the case is stayed until you pay the costs and
attorney fees in the previous case.

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Alberto M.
Cardet
Sent: Friday, August 26, 2011 9:51 AM
To: 'Cary Sabol'; 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice

I agree with Cary, Judges in Miami-Dade will also dismiss, but not always
award attorneys' fees as fees are not mandatory

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Friday, August 26, 2011 8:17 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice

My opinion is that your 3 day notice becomes defective once any payment is
accepted. Our Judges in PBC will not hesitate to dismiss an eviction on
those grounds and award atty fees to the tenant. I would suggest you
voluntarily dismiss the case before the tenant incurs legal fees and
re-serve a new 3 day and start the process over again.

Cary

Cary P. Sabol, Esq.

P.O. Box 15981

West Palm Beach, Florida 33416

Phone: (561) 281-2744

Confidentiality Notice: This email transmission and any attachments are
confidential and may be legally privileged. If you are not the intended
recipient, you are hereby notified that any disclosure, copying,
distribution, or use of the information contained herein is STRICTLY
PROHIBITED.

From: Law Offices of Scott A. Frank sfrank@saflaw.com
To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Sent: Thursday, August 25, 2011 5:29 PM
Subject: [RPPTL LandTen] Requirement for 3-day Notice

Folks - quick residential question (from this commercial attorney) on the
need for a new 3-day notice to quit where there is a partial rent payment
accepted between the date of the original notice and the date the complaint
is filed.

Specifically - Tenant withheld part of July rent due to repairs and a demand
from the association (LL had been previously notified of need for repairs,
and tenant did in fact send invoices and itemization of deductions).
Landlord then sent a 3-day notice. Then in August, tenant again withheld
part of rent and made a partial payment. Next correspondence from the
landlord was the Complaint - no new 3-day notice.

So again the question is whether the lack of the new 3-day notice after
acceptance of partial rent precludes the eviction?

Any and all thoughts, ideas, etc. are most welcome.

Thanks.

Scott A. Frank

Attorney at Law

LAW OFFICES OF SCOTT A. FRANK, P.A.

7781 NW Beacon Square Boulevard, Suite 102

Boca Raton, FL 33487

p: (561) 372-7860

f: (561) 423-5721

sfrank@saflaw.com

www.saflaw.com http://www.saflaw.com/

If you believe that you have received this message in error, please notify
the sender by reply transmission and delete the message without copying or
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Pursuant to Internal Revenue Service guidance, be advised that any federal
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any attachments or enclosures, is not intended or written to be used and it
cannot be used by any person or entity for the purpose of (i) avoiding any
tax penalties that may be imposed by the Internal Revenue Service or any
other U.S. Federal taxing authority or agency or (ii) promoting, marketing
or recommending to another party any transaction or matter addressed herein.

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Attorney's Fees are assessed under Rule 1.420(d) of the Florida Rules of Civil Procedure if you voluntarily dismiss the case also and if you voluntarily dismiss, the case is stayed until you pay the costs and attorney fees in the previous case. _____ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Alberto M. Cardet Sent: Friday, August 26, 2011 9:51 AM To: 'Cary Sabol'; 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice I agree with Cary, Judges in Miami-Dade will also dismiss, but not always award attorneys' fees as fees are not mandatory From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol Sent: Friday, August 26, 2011 8:17 AM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice My opinion is that your 3 day notice becomes defective once any payment is accepted. Our Judges in PBC will not hesitate to dismiss an eviction on those grounds and award atty fees to the tenant. I would suggest you voluntarily dismiss the case before the tenant incurs legal fees and re-serve a new 3 day and start the process over again. Cary Cary P. Sabol, Esq. P.O. Box 15981 West Palm Beach, Florida 33416 Phone: (561) 281-2744 Confidentiality Notice: This email transmission and any attachments are confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or use of the information contained herein is STRICTLY PROHIBITED. From: Law Offices of Scott A. Frank <sfrank@saflaw.com> To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.org> Sent: Thursday, August 25, 2011 5:29 PM Subject: [RPPTL LandTen] Requirement for 3-day Notice Folks - quick residential question (from this commercial attorney) on the need for a new 3-day notice to quit where there is a partial rent payment accepted between the date of the original notice and the date the complaint is filed. Specifically - Tenant withheld part of July rent due to repairs and a demand from the association (LL had been previously notified of need for repairs, and tenant did in fact send invoices and itemization of deductions). Landlord then sent a 3-day notice. Then in August, tenant again withheld part of rent and made a partial payment. Next correspondence from the landlord was the Complaint - no new 3-day notice. So again the question is whether the lack of the new 3-day notice after acceptance of partial rent precludes the eviction? Any and all thoughts, ideas, etc. are most welcome. Thanks. Scott A. Frank Attorney at Law LAW OFFICES OF SCOTT A. FRANK, P.A. 7781 NW Beacon Square Boulevard, Suite 102 Boca Raton, FL 33487 p: (561) 372-7860 f: (561) 423-5721 sfrank@saflaw.com www.saflaw.com <http://www.saflaw.com/> If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it. Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. _______________________________________________ landten mailing list landten@lists.flabarrpptl.org http://mailman.fsr.com/mailman/listinfo/landten

AH

Anthony Horky

Sat, Aug 27, 2011 7:26 PM

Under what authority are attorneys' fees assessed on filing the first notice
of voluntary dismissal without prejudice?

Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

301 Yamato Road, Suite 1240

Boca Raton, Florida 33431

Telephone: (754) 224-6178

Facsimile: (561) 994-6693

Email: mailto:AJH1502@gmail.com AJH1502@gmail.com

This message and the documents attached to it, if any, are intended only for
the use of the addressee and may contain information that is privileed or
confidential, and/or may contain attorney work product. If you are not the
intended recipient, you are hereby notified that any dissemination of this
communication is strictly prohibited. If you have received this
communication in error, please delete all electronic copies of this message
and its attachments, if any, destroy any hard copies you may have created
and notify me immediately at AJH1502@gmail.com.

Tax Advice Disclosure: To ensure compliance with requirements imposed by the
IRS under Circular 230, we inform you that any U.S. federal tax advice
contained in this communication (including any attachments), unless
otherwise specifically stated, was not intended or written to be used, and
cannot be used, for the purpose of (1) avoiding penalties under the Internal
Revenue Code or (2) promoting, marketing or recommending to another party
any matters addressed herein.

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Leonard Cabral
Sent: Friday, August 26, 2011 11:27 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice

Attorney's Fees are assessed under Rule 1.420(d) of the Florida Rules of
Civil Procedure if you voluntarily dismiss the case also and if you
voluntarily dismiss, the case is stayed until you pay the costs and
attorney fees in the previous case.

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Alberto M.
Cardet
Sent: Friday, August 26, 2011 9:51 AM
To: 'Cary Sabol'; 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice

I agree with Cary, Judges in Miami-Dade will also dismiss, but not always
award attorneys' fees as fees are not mandatory

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Friday, August 26, 2011 8:17 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice

My opinion is that your 3 day notice becomes defective once any payment is
accepted. Our Judges in PBC will not hesitate to dismiss an eviction on
those grounds and award atty fees to the tenant. I would suggest you
voluntarily dismiss the case before the tenant incurs legal fees and
re-serve a new 3 day and start the process over again.

Cary

Cary P. Sabol, Esq.

P.O. Box 15981

West Palm Beach, Florida 33416

Phone: (561) 281-2744

Confidentiality Notice: This email transmission and any attachments are
confidential and may be legally privileged. If you are not the intended
recipient, you are hereby notified that any disclosure, copying,
distribution, or use of the information contained herein is STRICTLY
PROHIBITED.

From: Law Offices of Scott A. Frank sfrank@saflaw.com
To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Sent: Thursday, August 25, 2011 5:29 PM
Subject: [RPPTL LandTen] Requirement for 3-day Notice

Folks - quick residential question (from this commercial attorney) on the
need for a new 3-day notice to quit where there is a partial rent payment
accepted between the date of the original notice and the date the complaint
is filed.

Specifically - Tenant withheld part of July rent due to repairs and a demand
from the association (LL had been previously notified of need for repairs,
and tenant did in fact send invoices and itemization of deductions).
Landlord then sent a 3-day notice. Then in August, tenant again withheld
part of rent and made a partial payment. Next correspondence from the
landlord was the Complaint - no new 3-day notice.

So again the question is whether the lack of the new 3-day notice after
acceptance of partial rent precludes the eviction?

Any and all thoughts, ideas, etc. are most welcome.

Thanks.

Scott A. Frank

Attorney at Law

LAW OFFICES OF SCOTT A. FRANK, P.A.

7781 NW Beacon Square Boulevard, Suite 102

Boca Raton, FL 33487

p: (561) 372-7860

f: (561) 423-5721

sfrank@saflaw.com

www.saflaw.com http://www.saflaw.com/

If you believe that you have received this message in error, please notify
the sender by reply transmission and delete the message without copying or
disclosing it.

Pursuant to Internal Revenue Service guidance, be advised that any federal
tax advice contained in this written or electronic communication, including
any attachments or enclosures, is not intended or written to be used and it
cannot be used by any person or entity for the purpose of (i) avoiding any
tax penalties that may be imposed by the Internal Revenue Service or any
other U.S. Federal taxing authority or agency or (ii) promoting, marketing
or recommending to another party any transaction or matter addressed herein.

landten mailing list
landten@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/landten

Under what authority are attorneys' fees assessed on filing the first notice of voluntary dismissal without prejudice? Anthony J. Horky, Esquire Anthony J. Horky, P.A. 301 Yamato Road, Suite 1240 Boca Raton, Florida 33431 Telephone: (754) 224-6178 Facsimile: (561) 994-6693 Email: <mailto:AJH1502@gmail.com> AJH1502@gmail.com This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is privileed or confidential, and/or may contain attorney work product. If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at AJH1502@gmail.com. ------------------------------------------------------- Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein. From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Leonard Cabral Sent: Friday, August 26, 2011 11:27 PM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice Attorney's Fees are assessed under Rule 1.420(d) of the Florida Rules of Civil Procedure if you voluntarily dismiss the case also and if you voluntarily dismiss, the case is stayed until you pay the costs and attorney fees in the previous case. _____ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Alberto M. Cardet Sent: Friday, August 26, 2011 9:51 AM To: 'Cary Sabol'; 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice I agree with Cary, Judges in Miami-Dade will also dismiss, but not always award attorneys' fees as fees are not mandatory From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol Sent: Friday, August 26, 2011 8:17 AM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice My opinion is that your 3 day notice becomes defective once any payment is accepted. Our Judges in PBC will not hesitate to dismiss an eviction on those grounds and award atty fees to the tenant. I would suggest you voluntarily dismiss the case before the tenant incurs legal fees and re-serve a new 3 day and start the process over again. Cary Cary P. Sabol, Esq. P.O. Box 15981 West Palm Beach, Florida 33416 Phone: (561) 281-2744 Confidentiality Notice: This email transmission and any attachments are confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or use of the information contained herein is STRICTLY PROHIBITED. From: Law Offices of Scott A. Frank <sfrank@saflaw.com> To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.org> Sent: Thursday, August 25, 2011 5:29 PM Subject: [RPPTL LandTen] Requirement for 3-day Notice Folks - quick residential question (from this commercial attorney) on the need for a new 3-day notice to quit where there is a partial rent payment accepted between the date of the original notice and the date the complaint is filed. Specifically - Tenant withheld part of July rent due to repairs and a demand from the association (LL had been previously notified of need for repairs, and tenant did in fact send invoices and itemization of deductions). Landlord then sent a 3-day notice. Then in August, tenant again withheld part of rent and made a partial payment. Next correspondence from the landlord was the Complaint - no new 3-day notice. So again the question is whether the lack of the new 3-day notice after acceptance of partial rent precludes the eviction? Any and all thoughts, ideas, etc. are most welcome. Thanks. Scott A. Frank Attorney at Law LAW OFFICES OF SCOTT A. FRANK, P.A. 7781 NW Beacon Square Boulevard, Suite 102 Boca Raton, FL 33487 p: (561) 372-7860 f: (561) 423-5721 sfrank@saflaw.com www.saflaw.com <http://www.saflaw.com/> If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it. Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. _______________________________________________ landten mailing list landten@lists.flabarrpptl.org http://mailman.fsr.com/mailman/listinfo/landten

LC

Leonard Cabral

Sat, Aug 27, 2011 8:26 PM

Anthony:

From one of my briefs: Let me know if this helps clarify my statement. I

believe this is still good law.

Plaintiff, through his attorney, filed a Voluntary Dismissal. Pursuant to
Rule 1.420(d) of the Florida Rules of Civil Procedure, costs in any action
dismissed under this rule shall be assessed and judgment for costs entered
in that action. . . . and shall stay the proceeding in the action until the
party seeking affirmative relief has complied with the order. (Emphasis
added) Defendant requests to tax costs and stay any new action for Tenant
eviction for non-payment of rent until all costs and attorney fees awarded
are paid.

Defendants is entitled to all costs including reasonable attorney fees, as a
voluntary dismissal requires a mandatory award of costs under Fla. R. Civ.
P. 1.420(d) which states in relevant part, "Costs in any action dismissed
under this Rule shall be assessed and judgment for costs entered in that
action." (Emphasis added) State ex rel Marsh v. Doran, 958 So. 2d 1082, 1082
(Fla. 1st DCA 2007); (prevailing party attorney fees due to Defendant upon
Plaintiff's voluntary dismissal without prejudice - "the refiling of the
same suit after voluntary dismissal does not alter the [prevailing party's]
right to recover prevailing party attorney's fees incurred in defense of the
first suit"); Alhambra Homeowner's Ass'n v. Asad, 943 So. 2d 316, 318-19
(Fla. 4th DCA 2006) (prevailing party attorney fees due to Defendant upon
Plaintiff's voluntary dismissal without prejudice); Stuart Plaza, LTD v.
Atlantic Coast Development Corp., 493 So. 2d 1136, 1137-37 (Fla. 4th DCA
1986) (prevailing party attorney fees due to Defendant upon Plaintiff's
voluntary dismissal of action without prejudice)

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony Horky
Sent: Saturday, August 27, 2011 3:26 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice

Under what authority are attorneys' fees assessed on filing the first notice
of voluntary dismissal without prejudice?

Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

301 Yamato Road, Suite 1240

Boca Raton, Florida 33431

Telephone: (754) 224-6178

Facsimile: (561) 994-6693

Email: AJH1502@gmail.com

This message and the documents attached to it, if any, are intended only for
the use of the addressee and may contain information that is privileed or
confidential, and/or may contain attorney work product. If you are not the
intended recipient, you are hereby notified that any dissemination of this
communication is strictly prohibited. If you have received this
communication in error, please delete all electronic copies of this message
and its attachments, if any, destroy any hard copies you may have created
and notify me immediately at AJH1502@gmail.com.

Tax Advice Disclosure: To ensure compliance with requirements imposed by the
IRS under Circular 230, we inform you that any U.S. federal tax advice
contained in this communication (including any attachments), unless
otherwise specifically stated, was not intended or written to be used, and
cannot be used, for the purpose of (1) avoiding penalties under the Internal
Revenue Code or (2) promoting, marketing or recommending to another party
any matters addressed herein.

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Leonard Cabral
Sent: Friday, August 26, 2011 11:27 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice

Attorney's Fees are assessed under Rule 1.420(d) of the Florida Rules of
Civil Procedure if you voluntarily dismiss the case also and if you
voluntarily dismiss, the case is stayed until you pay the costs and
attorney fees in the previous case.

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Alberto M.
Cardet
Sent: Friday, August 26, 2011 9:51 AM
To: 'Cary Sabol'; 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice

I agree with Cary, Judges in Miami-Dade will also dismiss, but not always
award attorneys' fees as fees are not mandatory

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Friday, August 26, 2011 8:17 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice

My opinion is that your 3 day notice becomes defective once any payment is
accepted. Our Judges in PBC will not hesitate to dismiss an eviction on
those grounds and award atty fees to the tenant. I would suggest you
voluntarily dismiss the case before the tenant incurs legal fees and
re-serve a new 3 day and start the process over again.

Cary

Cary P. Sabol, Esq.

P.O. Box 15981

West Palm Beach, Florida 33416

Phone: (561) 281-2744

Confidentiality Notice: This email transmission and any attachments are
confidential and may be legally privileged. If you are not the intended
recipient, you are hereby notified that any disclosure, copying,
distribution, or use of the information contained herein is STRICTLY
PROHIBITED.

From: Law Offices of Scott A. Frank sfrank@saflaw.com
To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Sent: Thursday, August 25, 2011 5:29 PM
Subject: [RPPTL LandTen] Requirement for 3-day Notice

Folks - quick residential question (from this commercial attorney) on the
need for a new 3-day notice to quit where there is a partial rent payment
accepted between the date of the original notice and the date the complaint
is filed.

Specifically - Tenant withheld part of July rent due to repairs and a demand
from the association (LL had been previously notified of need for repairs,
and tenant did in fact send invoices and itemization of deductions).
Landlord then sent a 3-day notice. Then in August, tenant again withheld
part of rent and made a partial payment. Next correspondence from the
landlord was the Complaint - no new 3-day notice.

So again the question is whether the lack of the new 3-day notice after
acceptance of partial rent precludes the eviction?

Any and all thoughts, ideas, etc. are most welcome.

Thanks.

Scott A. Frank

Attorney at Law

LAW OFFICES OF SCOTT A. FRANK, P.A.

7781 NW Beacon Square Boulevard, Suite 102

Boca Raton, FL 33487

p: (561) 372-7860

f: (561) 423-5721

sfrank@saflaw.com

www.saflaw.com http://www.saflaw.com/

If you believe that you have received this message in error, please notify
the sender by reply transmission and delete the message without copying or
disclosing it.

Pursuant to Internal Revenue Service guidance, be advised that any federal
tax advice contained in this written or electronic communication, including
any attachments or enclosures, is not intended or written to be used and it
cannot be used by any person or entity for the purpose of (i) avoiding any
tax penalties that may be imposed by the Internal Revenue Service or any
other U.S. Federal taxing authority or agency or (ii) promoting, marketing
or recommending to another party any transaction or matter addressed herein.

landten mailing list
landten@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/landten

Anthony: >From one of my briefs: Let me know if this helps clarify my statement. I believe this is still good law. Plaintiff, through his attorney, filed a Voluntary Dismissal. Pursuant to Rule 1.420(d) of the Florida Rules of Civil Procedure, costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action. . . . and shall stay the proceeding in the action until the party seeking affirmative relief has complied with the order. (Emphasis added) Defendant requests to tax costs and stay any new action for Tenant eviction for non-payment of rent until all costs and attorney fees awarded are paid. Defendants is entitled to all costs including reasonable attorney fees, as a voluntary dismissal requires a mandatory award of costs under Fla. R. Civ. P. 1.420(d) which states in relevant part, "Costs in any action dismissed under this Rule shall be assessed and judgment for costs entered in that action." (Emphasis added) State ex rel Marsh v. Doran, 958 So. 2d 1082, 1082 (Fla. 1st DCA 2007); (prevailing party attorney fees due to Defendant upon Plaintiff's voluntary dismissal without prejudice - "the refiling of the same suit after voluntary dismissal does not alter the [prevailing party's] right to recover prevailing party attorney's fees incurred in defense of the first suit"); Alhambra Homeowner's Ass'n v. Asad, 943 So. 2d 316, 318-19 (Fla. 4th DCA 2006) (prevailing party attorney fees due to Defendant upon Plaintiff's voluntary dismissal without prejudice); Stuart Plaza, LTD v. Atlantic Coast Development Corp., 493 So. 2d 1136, 1137-37 (Fla. 4th DCA 1986) (prevailing party attorney fees due to Defendant upon Plaintiff's voluntary dismissal of action without prejudice) _____ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony Horky Sent: Saturday, August 27, 2011 3:26 PM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice Under what authority are attorneys' fees assessed on filing the first notice of voluntary dismissal without prejudice? Anthony J. Horky, Esquire Anthony J. Horky, P.A. 301 Yamato Road, Suite 1240 Boca Raton, Florida 33431 Telephone: (754) 224-6178 Facsimile: (561) 994-6693 Email: AJH1502@gmail.com This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is privileed or confidential, and/or may contain attorney work product. If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at AJH1502@gmail.com. ------------------------------------------------------- Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein. From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Leonard Cabral Sent: Friday, August 26, 2011 11:27 PM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice Attorney's Fees are assessed under Rule 1.420(d) of the Florida Rules of Civil Procedure if you voluntarily dismiss the case also and if you voluntarily dismiss, the case is stayed until you pay the costs and attorney fees in the previous case. _____ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Alberto M. Cardet Sent: Friday, August 26, 2011 9:51 AM To: 'Cary Sabol'; 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice I agree with Cary, Judges in Miami-Dade will also dismiss, but not always award attorneys' fees as fees are not mandatory From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol Sent: Friday, August 26, 2011 8:17 AM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice My opinion is that your 3 day notice becomes defective once any payment is accepted. Our Judges in PBC will not hesitate to dismiss an eviction on those grounds and award atty fees to the tenant. I would suggest you voluntarily dismiss the case before the tenant incurs legal fees and re-serve a new 3 day and start the process over again. Cary Cary P. Sabol, Esq. P.O. Box 15981 West Palm Beach, Florida 33416 Phone: (561) 281-2744 Confidentiality Notice: This email transmission and any attachments are confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or use of the information contained herein is STRICTLY PROHIBITED. From: Law Offices of Scott A. Frank <sfrank@saflaw.com> To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.org> Sent: Thursday, August 25, 2011 5:29 PM Subject: [RPPTL LandTen] Requirement for 3-day Notice Folks - quick residential question (from this commercial attorney) on the need for a new 3-day notice to quit where there is a partial rent payment accepted between the date of the original notice and the date the complaint is filed. Specifically - Tenant withheld part of July rent due to repairs and a demand from the association (LL had been previously notified of need for repairs, and tenant did in fact send invoices and itemization of deductions). Landlord then sent a 3-day notice. Then in August, tenant again withheld part of rent and made a partial payment. Next correspondence from the landlord was the Complaint - no new 3-day notice. So again the question is whether the lack of the new 3-day notice after acceptance of partial rent precludes the eviction? Any and all thoughts, ideas, etc. are most welcome. Thanks. Scott A. Frank Attorney at Law LAW OFFICES OF SCOTT A. FRANK, P.A. 7781 NW Beacon Square Boulevard, Suite 102 Boca Raton, FL 33487 p: (561) 372-7860 f: (561) 423-5721 sfrank@saflaw.com www.saflaw.com <http://www.saflaw.com/> If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it. Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. _______________________________________________ landten mailing list landten@lists.flabarrpptl.org http://mailman.fsr.com/mailman/listinfo/landten

SW

Shane Weaver

Sat, Aug 27, 2011 11:32 PM

Adding to Leonard's comment, attorneys fees are not ordinarily included as "costs" for Rule 1.420(d) purposes except when the authorizing statute allows it. Fla. Stat. 83.48 does just that by stating a party may recover "reasonable court costs, including attorney's fees." There's case law on that, as well.

The mandatory abatement under Rule 1.420(d) is for actions "based upon or including the same claim," so it may not apply if, for example, the first action was for unpaid rent but the second is an unconditional termination.

Shane Weaver, Esq.
Legal Aid Society of Palm Beach County
423 Fern Street, Suite 200
West Palm Beach, FL 33401
Tel. (561) 822-9785
Fax (561) 822-9885

From: landten-bounces@lists.flabarrpptl.org [landten-bounces@lists.flabarrpptl.org] On Behalf Of Leonard Cabral [dungsorter@gmail.com]
Sent: Saturday, August 27, 2011 4:26 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice

Anthony:

From one of my briefs: Let me know if this helps clarify my statement. I believe this is still good law.

Plaintiff, through his attorney, filed a Voluntary Dismissal. Pursuant to Rule 1.420(d) of the Florida Rules of Civil Procedure, costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action. . . . and shall stay the proceeding in the action until the party seeking affirmative relief has complied with the order. (Emphasis added) Defendant requests to tax costs and stay any new action for Tenant eviction for non-payment of rent until all costs and attorney fees awarded are paid.

Defendants is entitled to all costs including reasonable attorney fees, as a voluntary dismissal requires a mandatory award of costs under Fla. R. Civ. P. 1.420(d) which states in relevant part, “Costs in any action dismissed under this Rule shall be assessed and judgment for costs entered in that action.” (Emphasis added) State ex rel Marsh v. Doran, 958 So. 2d 1082, 1082 (Fla. 1st DCA 2007); (prevailing party attorney fees due to Defendant upon Plaintiff’s voluntary dismissal without prejudice – "the refiling of the same suit after voluntary dismissal does not alter the [prevailing party’s] right to recover prevailing party attorney’s fees incurred in defense of the first suit"); Alhambra Homeowner’s Ass’n v. Asad, 943 So. 2d 316, 318-19 (Fla. 4th DCA 2006) (prevailing party attorney fees due to Defendant upon Plaintiff’s voluntary dismissal without prejudice); Stuart Plaza, LTD v. Atlantic Coast Development Corp., 493 So. 2d 1136, 1137-37 (Fla. 4th DCA 1986) (prevailing party attorney fees due to Defendant upon Plaintiff’s voluntary dismissal of action without prejudice)

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony Horky
Sent: Saturday, August 27, 2011 3:26 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice

Under what authority are attorneys’ fees assessed on filing the first notice of voluntary dismissal without prejudice?

Anthony J. Horky, Esquire
Anthony J. Horky, P.A.
301 Yamato Road, Suite 1240
Boca Raton, Florida 33431
Telephone: (754) 224-6178
Facsimile: (561) 994-6693
Email: AJH1502@gmail.com mailto:AJH1502@gmail.com
This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is privileed or confidential, and/or may contain attorney work product. If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at AJH1502@gmail.com.

Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Leonard Cabral
Sent: Friday, August 26, 2011 11:27 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice

Attorney’s Fees are assessed under Rule 1.420(d) of the Florida Rules of Civil Procedure if you voluntarily dismiss the case also and if you voluntarily dismiss, the case is stayed until you pay the costs and attorney fees in the previous case.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Alberto M. Cardet
Sent: Friday, August 26, 2011 9:51 AM
To: 'Cary Sabol'; 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice

I agree with Cary, Judges in Miami-Dade will also dismiss, but not always award attorneys’ fees as fees are not mandatory

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Friday, August 26, 2011 8:17 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice

My opinion is that your 3 day notice becomes defective once any payment is accepted. Our Judges in PBC will not hesitate to dismiss an eviction on those grounds and award atty fees to the tenant. I would suggest you voluntarily dismiss the case before the tenant incurs legal fees and re-serve a new 3 day and start the process over again.
Cary
Cary P. Sabol, Esq.
P.O. Box 15981
West Palm Beach, Florida 33416
Phone: (561) 281-2744

Confidentiality Notice: This email transmission and any attachments are confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or use of the information contained herein is STRICTLY PROHIBITED.

From: Law Offices of Scott A. Frank sfrank@saflaw.com
To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Sent: Thursday, August 25, 2011 5:29 PM
Subject: [RPPTL LandTen] Requirement for 3-day Notice
Folks – quick residential question (from this commercial attorney) on the need for a new 3-day notice to quit where there is a partial rent payment accepted between the date of the original notice and the date the complaint is filed.

Specifically – Tenant withheld part of July rent due to repairs and a demand from the association (LL had been previously notified of need for repairs, and tenant did in fact send invoices and itemization of deductions). Landlord then sent a 3-day notice. Then in August, tenant again withheld part of rent and made a partial payment. Next correspondence from the landlord was the Complaint – no new 3-day notice.

So again the question is whether the lack of the new 3-day notice after acceptance of partial rent precludes the eviction?

Any and all thoughts, ideas, etc. are most welcome.

Thanks.

Scott A. Frank
Attorney at Law
LAW OFFICES OF SCOTT A. FRANK, P.A.
7781 NW Beacon Square Boulevard, Suite 102
Boca Raton, FL 33487
p: (561) 372-7860
f: (561) 423-5721
sfrank@saflaw.com mailto:sfrank@saflaw.com
www.saflaw.com http://www.saflaw.com/

If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it.

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Adding to Leonard's comment, attorneys fees are not ordinarily included as "costs" for Rule 1.420(d) purposes except when the authorizing statute allows it. Fla. Stat. 83.48 does just that by stating a party may recover "reasonable court costs, including attorney's fees." There's case law on that, as well. The mandatory abatement under Rule 1.420(d) is for actions "based upon or including the same claim," so it may not apply if, for example, the first action was for unpaid rent but the second is an unconditional termination. Shane Weaver, Esq. Legal Aid Society of Palm Beach County 423 Fern Street, Suite 200 West Palm Beach, FL 33401 Tel. (561) 822-9785 Fax (561) 822-9885 ________________________________________ From: landten-bounces@lists.flabarrpptl.org [landten-bounces@lists.flabarrpptl.org] On Behalf Of Leonard Cabral [dungsorter@gmail.com] Sent: Saturday, August 27, 2011 4:26 PM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice Anthony: >From one of my briefs: Let me know if this helps clarify my statement. I believe this is still good law. Plaintiff, through his attorney, filed a Voluntary Dismissal. Pursuant to Rule 1.420(d) of the Florida Rules of Civil Procedure, costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action. . . . and shall stay the proceeding in the action until the party seeking affirmative relief has complied with the order. (Emphasis added) Defendant requests to tax costs and stay any new action for Tenant eviction for non-payment of rent until all costs and attorney fees awarded are paid. Defendants is entitled to all costs including reasonable attorney fees, as a voluntary dismissal requires a mandatory award of costs under Fla. R. Civ. P. 1.420(d) which states in relevant part, “Costs in any action dismissed under this Rule shall be assessed and judgment for costs entered in that action.” (Emphasis added) State ex rel Marsh v. Doran, 958 So. 2d 1082, 1082 (Fla. 1st DCA 2007); (prevailing party attorney fees due to Defendant upon Plaintiff’s voluntary dismissal without prejudice – "the refiling of the same suit after voluntary dismissal does not alter the [prevailing party’s] right to recover prevailing party attorney’s fees incurred in defense of the first suit"); Alhambra Homeowner’s Ass’n v. Asad, 943 So. 2d 316, 318-19 (Fla. 4th DCA 2006) (prevailing party attorney fees due to Defendant upon Plaintiff’s voluntary dismissal without prejudice); Stuart Plaza, LTD v. Atlantic Coast Development Corp., 493 So. 2d 1136, 1137-37 (Fla. 4th DCA 1986) (prevailing party attorney fees due to Defendant upon Plaintiff’s voluntary dismissal of action without prejudice) ________________________________ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony Horky Sent: Saturday, August 27, 2011 3:26 PM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice Under what authority are attorneys’ fees assessed on filing the first notice of voluntary dismissal without prejudice? Anthony J. Horky, Esquire Anthony J. Horky, P.A. 301 Yamato Road, Suite 1240 Boca Raton, Florida 33431 Telephone: (754) 224-6178 Facsimile: (561) 994-6693 Email: AJH1502@gmail.com<mailto:AJH1502@gmail.com> This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is privileed or confidential, and/or may contain attorney work product. If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at AJH1502@gmail.com. ------------------------------------------------------- Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein. From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Leonard Cabral Sent: Friday, August 26, 2011 11:27 PM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice Attorney’s Fees are assessed under Rule 1.420(d) of the Florida Rules of Civil Procedure if you voluntarily dismiss the case also and if you voluntarily dismiss, the case is stayed until you pay the costs and attorney fees in the previous case. ________________________________ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Alberto M. Cardet Sent: Friday, August 26, 2011 9:51 AM To: 'Cary Sabol'; 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice I agree with Cary, Judges in Miami-Dade will also dismiss, but not always award attorneys’ fees as fees are not mandatory From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol Sent: Friday, August 26, 2011 8:17 AM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice My opinion is that your 3 day notice becomes defective once any payment is accepted. Our Judges in PBC will not hesitate to dismiss an eviction on those grounds and award atty fees to the tenant. I would suggest you voluntarily dismiss the case before the tenant incurs legal fees and re-serve a new 3 day and start the process over again. Cary Cary P. Sabol, Esq. P.O. Box 15981 West Palm Beach, Florida 33416 Phone: (561) 281-2744 Confidentiality Notice: This email transmission and any attachments are confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or use of the information contained herein is STRICTLY PROHIBITED. From: Law Offices of Scott A. Frank <sfrank@saflaw.com> To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.org> Sent: Thursday, August 25, 2011 5:29 PM Subject: [RPPTL LandTen] Requirement for 3-day Notice Folks – quick residential question (from this commercial attorney) on the need for a new 3-day notice to quit where there is a partial rent payment accepted between the date of the original notice and the date the complaint is filed. Specifically – Tenant withheld part of July rent due to repairs and a demand from the association (LL had been previously notified of need for repairs, and tenant did in fact send invoices and itemization of deductions). Landlord then sent a 3-day notice. Then in August, tenant again withheld part of rent and made a partial payment. Next correspondence from the landlord was the Complaint – no new 3-day notice. So again the question is whether the lack of the new 3-day notice after acceptance of partial rent precludes the eviction? Any and all thoughts, ideas, etc. are most welcome. Thanks. Scott A. Frank Attorney at Law LAW OFFICES OF SCOTT A. FRANK, P.A. 7781 NW Beacon Square Boulevard, Suite 102 Boca Raton, FL 33487 p: (561) 372-7860 f: (561) 423-5721 sfrank@saflaw.com<mailto:sfrank@saflaw.com> www.saflaw.com<http://www.saflaw.com/> If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it. Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. _______________________________________________ landten mailing list landten@lists.flabarrpptl.org<mailto:landten@lists.flabarrpptl.org> http://mailman.fsr.com/mailman/listinfo/landten

MF

Manuel Farach

Sun, Aug 28, 2011 8:20 PM

Anthony,
Voluntary dismissal, even without prejudice, typically makes the defendant the prevailing party and entitled to fees under contract or statute. The only exception is when it is a first dismissal without prejudice and the defendant seeks fees under a Proposal for Settlement/Offer of Judgment. That is F.S. 768.79 requires a "judgment" or other finality (e.g., dismissal with prejudice) in order for a party to be considered a "prevailing party." Here's a recent case from the Fourth DCA on the topic:

--- So.3d ----, 2011 WL 3687448 (Fla.App. 4 Dist.)

Briefs and Other Related Documents
Judges and Attorneys
Only the Westlaw citation is currently available.

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

District Court of Appeal of Florida,
Fourth District.
Byron HENN, Appellant,
v.
ULTRASMITH RACING, LLC, a Florida limited liability company, Appellee.

No. 4D10-2674.

Aug. 24, 2011.

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Donald W. Hafele, Judge; L.T. Case No. 502007CA001349XXXXMB.
Daniel S. Weinger of Conrad & Scherer, LLP, Fort Lauderdale, for appellant.

Les Stracher of Kurkin Forehand Brandes, LLP, Weston, and R. Craig Spickard of Kurkin Forehand Brandes, LLP, Tallahassee, for appellee.

LEVINE, J.

*1 The issue presented in this appeal is whether the trial court erred in denying appellant's motion for attorney's fees after the trial court dismissed appellee's case without prejudice. We find that appellant was entitled to attorney's fees in this case, and we reverse.

Appellee sued appellant for a single count of breach of contract due to damage to a race car that appellant rented from appellee. After two years of litigation, appellee's attorney moved to withdraw from the case. The trial court granted counsel's motion to withdraw and set a mandatory status conference for October 15, 2009. The trial court required attendance and stated that "[f]ailure to attend (plaintiff must have counsel) shall result in dismissal/default & /or other sanctions." When appellee did not appear on October 15, the trial court reset the status conference for October 22, and the court restated its admonition that dismissal, default and/or other sanctions would result if appellee did not attend the conference with counsel. On October 22, appellee's "principal and managing agent" appeared at the hearing without counsel and attempted to file a notice of voluntary dismissal. The trial court dismissed the case without prejudice at the October 22 hearing, noting that the managing agent could not submit a notice of voluntary dismissal for the corporation without counsel, but recognizing the agent's oral request for dismissal.

Since the court reserved jurisdiction for attorney's fees, appellant subsequently filed a motion for attorney's fees and costs on the basis that the dismissal was voluntary, and as such, appellant was the prevailing party under the rental contract. Appellee responded, this time through counsel, by filing a motion to strike the request for attorney's fees and a motion for clarification regarding the reason for dismissal on October 22. After a hearing on the motion for clarification, the trial court held that it dismissed the case without prejudice as a sanction for appellee's failure to comply with the trial court's order to appear at the status conference with counsel. The trial court subsequently denied appellant's motion for attorney's fees without prejudice to refile the motion based on the clarification. Appellant refiled his motion, and the trial court denied the request for attorney's fees, concluding that since the dismissal was without prejudice, the litigation did not necessarily end with the trial court's order of dismissal. This appeal ensues.

We review de novo the trial court's rulings on entitlement to attorney's fees in this case as a question of law. See, e.g., Save on Cleaners of Pembroke II Inc. v. Verde Pines City Center Plaza LLC, 14 So.3d 295, 297 n. 4 (Fla. 4th DCA 2009).

We find that the trial court erred in not finding appellant the prevailing party. "The general rule is that when a plaintiff voluntarily dismisses an action, the defendant is the 'prevailing party' within the meaning of statutory or contractual provisions awarding attorney's fees to the 'prevailing party' in litigation." Alhambra Homeowners Ass'n v. Asad, 943 So.2d 316, 318 (Fla. 4th DCA 2006).

*2 Likewise, when the court dismisses an action without prejudice as a sanction, the defendant may be deemed a prevailing party. In Valcarcel v. Chase Bank USA NA, 54 So.3d 989 (Fla. 4th DCA 2010), the trial court dismissed without prejudice the plaintiff's foreclosure action as a sanction due to the plaintiff's counsel's misconduct. The defendants filed a motion for attorney's fees on the basis that the suit was involuntarily dismissed and that they were the prevailing parties. The trial court concluded that the order of dismissal without prejudice was not a final judgment and denied the motion for attorney's fees and costs. This court disagreed and determined that it was "not necessary for there to be an adjudication on the merits in order to be entitled to fees as a prevailing party." Id. at 990. This court also concluded that the defendants were entitled to attorney's fees as prevailing parties in the case. "Although the dismissal order was not an adjudication on the merits, the [defendants] can nonetheless be considered the prevailing party. They are entitled to an award of attorney's fees because the action against them was dismissed." Id. at 991.

In the present case, we do not reach the issue of whether the dismissal order was predicated on appellee's agent's notice or whether the dismissal was a sanction. Either way, appellant was entitled to attorney's fees as the prevailing party in the case under Alhambra or Valcarcel. Like Valcarcel, the dismissal in this case was not an adjudication on the merits, since it was a dismissal without prejudice. Under Valcarcel, however, a defendant may "prevail" even where the case is not dismissed on the merits. The fact that the trial court dismissed the case without prejudice was sufficient to trigger appellant's entitlement to attorney's fees as the prevailing party under the rental contract.

For the foregoing reasons, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

WARNER and POLEN, JJ., concur.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony Horky
Sent: Saturday, August 27, 2011 3:26 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice

Under what authority are attorneys' fees assessed on filing the first notice of voluntary dismissal without prejudice?

Anthony J. Horky, Esquire
Anthony J. Horky, P.A.
301 Yamato Road, Suite 1240
Boca Raton, Florida 33431
Telephone: (754) 224-6178
Facsimile: (561) 994-6693
Email: AJH1502@gmail.com mailto:AJH1502@gmail.com
This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is privileed or confidential, and/or may contain attorney work product. If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at AJH1502@gmail.com mailto:AJH1502@gmail.com.

Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein.

From: landten-bounces@lists.flabarrpptl.org mailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org]mailto:[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Leonard Cabral
Sent: Friday, August 26, 2011 11:27 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice

Attorney's Fees are assessed under Rule 1.420(d) of the Florida Rules of Civil Procedure if you voluntarily dismiss the case also and if you voluntarily dismiss, the case is stayed until you pay the costs and attorney fees in the previous case.

Richman Greer P.A.
Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar
Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401

Office:561.803.3500
Fax: 561.820.1608
Direct:561.803.3501
Email:MFarach@richmangreer.com

http://www.richmangreer.com/
To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
This message contains confidential information and is intended for landten@lists.flabarrpptl.org. If you are not landten@lists.flabarrpptl.org you are notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender (MFarach@richmangreer.com) therefore does not accept liability for any errors or omissions in the contents of this message, which arise as a result of e-mail transmission. If verification is required please request a hard-copy version.

From: landten-bounces@lists.flabarrpptl.org mailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org]mailto:[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Alberto M. Cardet
Sent: Friday, August 26, 2011 9:51 AM
To: 'Cary Sabol'; 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice

I agree with Cary, Judges in Miami-Dade will also dismiss, but not always award attorneys' fees as fees are not mandatory

From: landten-bounces@lists.flabarrpptl.org mailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org]mailto:[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Friday, August 26, 2011 8:17 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice

My opinion is that your 3 day notice becomes defective once any payment is accepted. Our Judges in PBC will not hesitate to dismiss an eviction on those grounds and award atty fees to the tenant. I would suggest you voluntarily dismiss the case before the tenant incurs legal fees and re-serve a new 3 day and start the process over again.
Cary
Cary P. Sabol, Esq.
P.O. Box 15981
West Palm Beach, Florida 33416
Phone: (561) 281-2744

Confidentiality Notice: This email transmission and any attachments are confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or use of the information contained herein is STRICTLY PROHIBITED.

From: Law Offices of Scott A. Frank <sfrank@saflaw.com mailto:sfrank@saflaw.com>
To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.org mailto:landten@lists.flabarrpptl.org>
Sent: Thursday, August 25, 2011 5:29 PM
Subject: [RPPTL LandTen] Requirement for 3-day Notice
Folks - quick residential question (from this commercial attorney) on the need for a new 3-day notice to quit where there is a partial rent payment accepted between the date of the original notice and the date the complaint is filed.

Specifically - Tenant withheld part of July rent due to repairs and a demand from the association (LL had been previously notified of need for repairs, and tenant did in fact send invoices and itemization of deductions). Landlord then sent a 3-day notice. Then in August, tenant again withheld part of rent and made a partial payment. Next correspondence from the landlord was the Complaint - no new 3-day notice.

So again the question is whether the lack of the new 3-day notice after acceptance of partial rent precludes the eviction?

Any and all thoughts, ideas, etc. are most welcome.

Thanks.

Scott A. Frank
Attorney at Law
LAW OFFICES OF SCOTT A. FRANK, P.A.
7781 NW Beacon Square Boulevard, Suite 102
Boca Raton, FL 33487
p: (561) 372-7860
f: (561) 423-5721
sfrank@saflaw.com mailto:sfrank@saflaw.com
www.saflaw.com http://www.saflaw.com/

If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it.

Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

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http://mailman.fsr.com/mailman/listinfo/landten

Anthony, Voluntary dismissal, even without prejudice, typically makes the defendant the prevailing party and entitled to fees under contract or statute. The only exception is when it is a first dismissal without prejudice and the defendant seeks fees under a Proposal for Settlement/Offer of Judgment. That is F.S. 768.79 requires a "judgment" or other finality (e.g., dismissal with prejudice) in order for a party to be considered a "prevailing party." Here's a recent case from the Fourth DCA on the topic: --- So.3d ----, 2011 WL 3687448 (Fla.App. 4 Dist.) Briefs and Other Related Documents Judges and Attorneys Only the Westlaw citation is currently available. NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. District Court of Appeal of Florida, Fourth District. Byron HENN, Appellant, v. ULTRASMITH RACING, LLC, a Florida limited liability company, Appellee. No. 4D10-2674. Aug. 24, 2011. Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Donald W. Hafele, Judge; L.T. Case No. 502007CA001349XXXXMB. Daniel S. Weinger of Conrad & Scherer, LLP, Fort Lauderdale, for appellant. Les Stracher of Kurkin Forehand Brandes, LLP, Weston, and R. Craig Spickard of Kurkin Forehand Brandes, LLP, Tallahassee, for appellee. LEVINE, J. *1 The issue presented in this appeal is whether the trial court erred in denying appellant's motion for attorney's fees after the trial court dismissed appellee's case without prejudice. We find that appellant was entitled to attorney's fees in this case, and we reverse. Appellee sued appellant for a single count of breach of contract due to damage to a race car that appellant rented from appellee. After two years of litigation, appellee's attorney moved to withdraw from the case. The trial court granted counsel's motion to withdraw and set a mandatory status conference for October 15, 2009. The trial court required attendance and stated that "[f]ailure to attend (plaintiff must have counsel) shall result in dismissal/default & /or other sanctions." When appellee did not appear on October 15, the trial court reset the status conference for October 22, and the court restated its admonition that dismissal, default and/or other sanctions would result if appellee did not attend the conference with counsel. On October 22, appellee's "principal and managing agent" appeared at the hearing without counsel and attempted to file a notice of voluntary dismissal. The trial court dismissed the case without prejudice at the October 22 hearing, noting that the managing agent could not submit a notice of voluntary dismissal for the corporation without counsel, but recognizing the agent's oral request for dismissal. Since the court reserved jurisdiction for attorney's fees, appellant subsequently filed a motion for attorney's fees and costs on the basis that the dismissal was voluntary, and as such, appellant was the prevailing party under the rental contract. Appellee responded, this time through counsel, by filing a motion to strike the request for attorney's fees and a motion for clarification regarding the reason for dismissal on October 22. After a hearing on the motion for clarification, the trial court held that it dismissed the case without prejudice as a sanction for appellee's failure to comply with the trial court's order to appear at the status conference with counsel. The trial court subsequently denied appellant's motion for attorney's fees without prejudice to refile the motion based on the clarification. Appellant refiled his motion, and the trial court denied the request for attorney's fees, concluding that since the dismissal was without prejudice, the litigation did not necessarily end with the trial court's order of dismissal. This appeal ensues. We review de novo the trial court's rulings on entitlement to attorney's fees in this case as a question of law. See, e.g., Save on Cleaners of Pembroke II Inc. v. Verde Pines City Center Plaza LLC, 14 So.3d 295, 297 n. 4 (Fla. 4th DCA 2009). We find that the trial court erred in not finding appellant the prevailing party. "The general rule is that when a plaintiff voluntarily dismisses an action, the defendant is the 'prevailing party' within the meaning of statutory or contractual provisions awarding attorney's fees to the 'prevailing party' in litigation." Alhambra Homeowners Ass'n v. Asad, 943 So.2d 316, 318 (Fla. 4th DCA 2006). *2 Likewise, when the court dismisses an action without prejudice as a sanction, the defendant may be deemed a prevailing party. In Valcarcel v. Chase Bank USA NA, 54 So.3d 989 (Fla. 4th DCA 2010), the trial court dismissed without prejudice the plaintiff's foreclosure action as a sanction due to the plaintiff's counsel's misconduct. The defendants filed a motion for attorney's fees on the basis that the suit was involuntarily dismissed and that they were the prevailing parties. The trial court concluded that the order of dismissal without prejudice was not a final judgment and denied the motion for attorney's fees and costs. This court disagreed and determined that it was "not necessary for there to be an adjudication on the merits in order to be entitled to fees as a prevailing party." Id. at 990. This court also concluded that the defendants were entitled to attorney's fees as prevailing parties in the case. "Although the dismissal order was not an adjudication on the merits, the [defendants] can nonetheless be considered the prevailing party. They are entitled to an award of attorney's fees because the action against them was dismissed." Id. at 991. In the present case, we do not reach the issue of whether the dismissal order was predicated on appellee's agent's notice or whether the dismissal was a sanction. Either way, appellant was entitled to attorney's fees as the prevailing party in the case under Alhambra or Valcarcel. Like Valcarcel, the dismissal in this case was not an adjudication on the merits, since it was a dismissal without prejudice. Under Valcarcel, however, a defendant may "prevail" even where the case is not dismissed on the merits. The fact that the trial court dismissed the case without prejudice was sufficient to trigger appellant's entitlement to attorney's fees as the prevailing party under the rental contract. For the foregoing reasons, we reverse and remand for further proceedings consistent with this opinion. Reversed and remanded. WARNER and POLEN, JJ., concur. From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony Horky Sent: Saturday, August 27, 2011 3:26 PM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice Under what authority are attorneys' fees assessed on filing the first notice of voluntary dismissal without prejudice? Anthony J. Horky, Esquire Anthony J. Horky, P.A. 301 Yamato Road, Suite 1240 Boca Raton, Florida 33431 Telephone: (754) 224-6178 Facsimile: (561) 994-6693 Email: AJH1502@gmail.com<mailto:AJH1502@gmail.com> This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is privileed or confidential, and/or may contain attorney work product. If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at AJH1502@gmail.com<mailto:AJH1502@gmail.com>. ------------------------------------------------------- Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein. From: landten-bounces@lists.flabarrpptl.org<mailto:landten-bounces@lists.flabarrpptl.org> [mailto:landten-bounces@lists.flabarrpptl.org]<mailto:[mailto:landten-bounces@lists.flabarrpptl.org]> On Behalf Of Leonard Cabral Sent: Friday, August 26, 2011 11:27 PM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice Attorney's Fees are assessed under Rule 1.420(d) of the Florida Rules of Civil Procedure if you voluntarily dismiss the case also and if you voluntarily dismiss, the case is stayed until you pay the costs and attorney fees in the previous case. Richman Greer P.A. Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar Richman Greer P.A. One Clearlake Centre Suite 1504 250 Australian Avenue South West Palm Beach, Florida 33401 Office:561.803.3500 Fax: 561.820.1608 Direct:561.803.3501 Email:MFarach@richmangreer.com http://www.richmangreer.com/ To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. This message contains confidential information and is intended for landten@lists.flabarrpptl.org. If you are not landten@lists.flabarrpptl.org you are notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender (MFarach@richmangreer.com) therefore does not accept liability for any errors or omissions in the contents of this message, which arise as a result of e-mail transmission. If verification is required please request a hard-copy version. ________________________________ From: landten-bounces@lists.flabarrpptl.org<mailto:landten-bounces@lists.flabarrpptl.org> [mailto:landten-bounces@lists.flabarrpptl.org]<mailto:[mailto:landten-bounces@lists.flabarrpptl.org]> On Behalf Of Alberto M. Cardet Sent: Friday, August 26, 2011 9:51 AM To: 'Cary Sabol'; 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice I agree with Cary, Judges in Miami-Dade will also dismiss, but not always award attorneys' fees as fees are not mandatory From: landten-bounces@lists.flabarrpptl.org<mailto:landten-bounces@lists.flabarrpptl.org> [mailto:landten-bounces@lists.flabarrpptl.org]<mailto:[mailto:landten-bounces@lists.flabarrpptl.org]> On Behalf Of Cary Sabol Sent: Friday, August 26, 2011 8:17 AM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Requirement for 3-day Notice My opinion is that your 3 day notice becomes defective once any payment is accepted. Our Judges in PBC will not hesitate to dismiss an eviction on those grounds and award atty fees to the tenant. I would suggest you voluntarily dismiss the case before the tenant incurs legal fees and re-serve a new 3 day and start the process over again. Cary Cary P. Sabol, Esq. P.O. Box 15981 West Palm Beach, Florida 33416 Phone: (561) 281-2744 Confidentiality Notice: This email transmission and any attachments are confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or use of the information contained herein is STRICTLY PROHIBITED. From: Law Offices of Scott A. Frank <sfrank@saflaw.com<mailto:sfrank@saflaw.com>> To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.org<mailto:landten@lists.flabarrpptl.org>> Sent: Thursday, August 25, 2011 5:29 PM Subject: [RPPTL LandTen] Requirement for 3-day Notice Folks - quick residential question (from this commercial attorney) on the need for a new 3-day notice to quit where there is a partial rent payment accepted between the date of the original notice and the date the complaint is filed. Specifically - Tenant withheld part of July rent due to repairs and a demand from the association (LL had been previously notified of need for repairs, and tenant did in fact send invoices and itemization of deductions). Landlord then sent a 3-day notice. Then in August, tenant again withheld part of rent and made a partial payment. Next correspondence from the landlord was the Complaint - no new 3-day notice. So again the question is whether the lack of the new 3-day notice after acceptance of partial rent precludes the eviction? Any and all thoughts, ideas, etc. are most welcome. Thanks. Scott A. Frank Attorney at Law LAW OFFICES OF SCOTT A. FRANK, P.A. 7781 NW Beacon Square Boulevard, Suite 102 Boca Raton, FL 33487 p: (561) 372-7860 f: (561) 423-5721 sfrank@saflaw.com<mailto:sfrank@saflaw.com> www.saflaw.com<http://www.saflaw.com/> If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it. Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. _______________________________________________ landten mailing list landten@lists.flabarrpptl.org<mailto:landten@lists.flabarrpptl.org> http://mailman.fsr.com/mailman/listinfo/landten