NOAM J COHEN, ESQ. Founder and Managing Partner at Pinerock Law
EPHRAIM BERGER, ESQ. Junior Partner at Pinerock Law
Pinerock Law is a Florida law firm representing creditors and businesses in commercial collections, debt recovery, judgment enforcement, garnishment, and related creditor-rights litigation throughout Florida.
A practical guide to voluntary dismissals, involuntary dismissals, failure to prosecute, service dismissals, contractual fee clauses, and Florida Statute § 57.105(7).
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A defendant may be entitled to attorney’s fees after a Florida lawsuit is dismissed, but dismissal alone does not automatically create a right to fees. Entitlement usually depends on (1) a contract, statute, or other fee basis; (2) the type and effect of the dismissal; and (3) whether the defendant properly qualifies as the prevailing party. |
Florida law generally treats a defendant as the prevailing party when a plaintiff voluntarily dismisses a lawsuit. But important exceptions and distinctions exist, particularly where the dismissal results from lack of service, lack of personal jurisdiction, settlement, mootness, or other procedural circumstances.
Understanding those distinctions can be particularly important in Florida debt collection, credit card, contract, foreclosure, and commercial litigation.
Does a Voluntary Dismissal Make the Defendant the Prevailing Party in Florida?
Generally, yes.
The Florida Supreme Court stated in Thornber v. City of Fort Walton Beach, 568 So. 2d 914 (Fla. 1990), that when a plaintiff voluntarily dismisses an action, the defendant is generally considered the prevailing party. The Court also explained that a decision on the merits is not necessarily required when the applicable statute awards fees to a prevailing party.
Florida appellate courts have repeatedly applied that rule. In Aderwel Holdings, Ltd. v. Aqua Trees, LLC, No. 3D25-1099 (Fla. 3d DCA Mar. 25, 2026), the Third District reversed an order denying contractual prevailing-party attorney’s fees after the plaintiff voluntarily dismissed a breach-of-contract action. The court emphasized both Florida’s general voluntary-dismissal rule and the breadth of the parties’ contractual attorney-fee provision.
Similarly, Florida courts have held that the general rule can apply even where relatively little litigation has occurred before the voluntary dismissal. See Viler v. Universal Property & Casualty Insurance Co., 386 So. 3d 941 (Fla. 4th DCA 2024).
A Dismissal Without Prejudice Can Still Result in Attorney’s Fees
A plaintiff generally cannot avoid prevailing-party attorney’s fees merely by dismissing the case without prejudice instead of with prejudice.
In Alhambra Homeowners Association, Inc. v. Asad, 943 So. 2d 316 (Fla. 4th DCA 2006), the court held that a defendant could be treated as the prevailing party following a voluntary dismissal even though the plaintiff later refiled the same claim. Thus, the fact that a claim may be refiled – or actually is refiled – does not by itself eliminate potential fee exposure from the dismissed case.
A Dismissal Does Not Automatically Create a Right to Attorney’s Fees
Florida generally follows the American Rule: each party pays its own attorney’s fees unless a contract, statute, or other recognized legal basis authorizes an award.
Accordingly, even if a defendant qualifies as the prevailing party after a dismissal, the defendant must still identify an independent basis for recovering attorney’s fees.
Common sources include:
- A contractual prevailing-party attorney-fee provision;
- Florida Statute § 57.105(7), which may make certain unilateral contractual fee provisions reciprocal;
- A statute governing the particular type of litigation; or
- In limited circumstances, a contractual or statutory definition treating attorney’s fees as recoverable “costs.”
The first question after any dismissal should therefore not simply be, “Who won?” It should be, “What law or contractual language authorizes attorney’s fees in this case?”
How Does Florida Statute § 57.105(7) Affect Contract Cases?
Section 57.105(7), Florida Statutes, is particularly important in contract and consumer-debt litigation.
If a contract allows one party to recover attorney’s fees when enforcing the agreement, Florida law may make that fee provision reciprocal so that the opposing party can also recover reasonable attorney’s fees if that party prevails in an action concerning the contract.
That means a contract does not necessarily need to say expressly that both sides receive attorney’s fees.
For example, a credit agreement might provide that the creditor can recover its attorney’s fees if legal action becomes necessary to collect the account. If Florida law applies, § 57.105(7) may permit the consumer to invoke that same provision reciprocally upon prevailing.
The Florida Supreme Court confirmed in Ham v. Portfolio Recovery Associates, LLC, 308 So. 3d 942 (Fla. 2020), that this principle can apply even where a creditor pleads an account-stated claim arising from an underlying credit-card agreement rather than labeling the count simply “breach of contract.”
What If the Contract Is Governed by Another State’s Law?
This can change the answer significantly.
A Florida lawsuit does not necessarily mean Florida’s reciprocal attorney-fee statute governs the contract.
In Giles v. Portfolio Recovery Associates, LLC, 317 So. 3d 1287 (Fla. 1st DCA 2021), a credit-card agreement contained both a unilateral attorney-fee provision and a clause selecting South Dakota law. The First District held that South Dakota law governed the fee issue and that Florida’s policy favoring reciprocal attorney’s fees was not strong enough to override the contractual choice-of-law provision.
The First District reached a similar result in Florida First Financial Services, LLC v. Randolph, 350 So. 3d 820 (Fla. 1st DCA 2022), involving an Alabama choice-of-law provision.
But choice of law presents its own procedural trap. In Engelin v. Portfolio Recovery Associates, LLC, No. 2D2024-0640 (Fla. 2d DCA 2025), the Second District held that the creditor had waived reliance on a Virginia choice-of-law provision because it did not timely raise Virginia law when the fee issue had already been squarely presented. The practical lesson is that courts may examine not only what law the contract selects, but also whether the choice-of-law issue was properly and timely preserved.
What Happens When a Case Is Dismissed for Failure to Prosecute?
A dismissal for failure to prosecute can support prevailing-party attorney’s fees.
In Kyte v. Discover Bank, 369 So. 3d 726 (Fla. 2d DCA 2023), Discover Bank’s small-claims action was dismissed for failure to prosecute after its counsel failed to appear at a pretrial conference. The Second District held that the defendant was the prevailing party for purposes of § 57.105(7).
Kyte is especially instructive because the court identified more than one route to recovery. The defendant qualified as the prevailing party under the reciprocal contractual fee provision and § 57.105(7), and the agreement itself defined recoverable legal costs to include reasonable attorney’s fees. Because Florida Small Claims Rule 7.110(d) required costs to be assessed in an action dismissed under that rule, the contract’s definition of legal costs provided an additional basis for recovering fees.
That additional theory will not exist in every case. The precise wording of the contract matters.
What If the Case Is Dismissed Because the Defendant Was Never Properly Served?
This is substantially different.
A defendant who obtains a dismissal because of lack of service or personal jurisdiction may not be a prevailing party, particularly where no significant issue concerning the underlying dispute was decided.
In Torruella v. Nationstar Mortgage, LLC, 308 So. 3d 674 (Fla. 5th DCA 2020), a foreclosure case was dismissed after unsuccessful efforts to obtain valid service. The Fifth District concluded that the defendant was not a prevailing party because the dismissal for lack of personal jurisdiction did not resolve an issue central to the merits, and the parties’ legal relationship was not materially changed.
A recent federal case applying Florida law reached a similar result. In U.S. Bank National Association v. Rivabem, No. 25-13110 (11th Cir. Apr. 27, 2026), the foreclosure action was dismissed without prejudice because the bank failed to timely serve the defendants under Federal Rule of Civil Procedure 4(m). The Eleventh Circuit affirmed the denial of fees, applying Florida’s “significant issue” prevailing-party analysis and concluding that the service dismissal did not resolve a disputed issue central to the underlying litigation.
Rivabem is an unpublished federal decision, not a Florida appellate decision binding on Florida state courts. It is nevertheless useful because it addresses the precise question of a dismissal for failure to timely effectuate service under Florida prevailing-party law.
Why Are Failure-to-Prosecute and Failure-to-Serve Dismissals Treated Differently?
At first glance, the cases can appear inconsistent. A failure-to-prosecute dismissal may support fees under Kyte, while a service-based dismissal may not under Torruella or Rivabem.
The distinction is that Florida’s prevailing-party analysis is not always controlled simply by the word “dismissed.” Courts may examine the nature and legal effect of the disposition.
In Moritz v. Hoyt Enterprises, Inc., 604 So. 2d 807 (Fla. 1992), the Florida Supreme Court described the prevailing party as the party prevailing on the significant issues in the litigation. That framework helps explain why some procedural dismissals create fee entitlement while others do not.
Are There Exceptions Even After a Voluntary Dismissal?
Yes. Although voluntary dismissal ordinarily favors the defendant for prevailing-party purposes, Florida courts recognize circumstances in which looking only at the docket entry would elevate procedure over the actual result.
The Defendant Substantially Satisfied the Plaintiff’s Demand
In Padow v. Knollwood Club Association, Inc., 839 So. 2d 744 (Fla. 4th DCA 2003), a condominium owner paid substantially all of the association’s claim before the association voluntarily dismissed the case. The court held that the owner was not the prevailing party merely because the plaintiff later dismissed. In substance, the association had achieved the principal objective of its litigation.
The Case Ended by Compromise or Settlement
In Kelly v. BankUnited, FSB, 159 So. 3d 403 (Fla. 4th DCA 2015), the court looked beyond the procedural dismissal to the substance of a compromise between the parties. Where neither side substantially prevailed in the litigation outcome, the court held that neither party should be treated as the prevailing party for attorney-fee purposes.
These cases illustrate why the prevailing-party determination cannot always be reduced to a mechanical rule.
Can Attorney’s Fees Be Recovered as “Costs” After a Dismissal?
Sometimes – but only where there is a sufficient legal basis.
Florida Rule of Civil Procedure 1.420(d) generally requires costs to be assessed in an action dismissed under that rule. Florida Small Claims Rule 7.110(d) contains similar cost language for dismissals under the small-claims rule. Attorney’s fees, however, are not ordinarily synonymous with taxable costs.
The Florida Supreme Court recognized an important exception in Wilson v. Rose Printing Co., 624 So. 2d 257 (Fla. 1993). Where the parties expressly agreed that recoverable “costs” include attorney’s fees, the contractual definition may permit those fees to be taxed as costs following dismissal. The Second District applied that principle in Kyte.
Attorneys reviewing a dismissed case should therefore read the actual fee clause carefully. A provision stating merely that the “prevailing party is entitled to attorney’s fees and costs” is materially different from a provision expressly defining legal costs as including attorney’s fees.
Does the Defendant Have to Plead a Claim for Attorney’s Fees?
Generally, yes.
In Stockman v. Downs, 573 So. 2d 835 (Fla. 1991), the Florida Supreme Court held that a claim for attorney’s fees based upon statute or contract generally must be pleaded because the opposing party is entitled to notice that fee exposure is at issue. Failure to plead fees can result in waiver.
There are exceptions, particularly where a case is dismissed before the defendant has had an opportunity to file an answer. Florida courts have permitted defendants in that circumstance to preserve their fee claims through a timely post-dismissal motion. See Prescott v. Anthony, 803 So. 2d 835 (Fla. 2d DCA 2001).
Accordingly, entitlement to fees depends not only on the substantive fee provision, but also on whether the claim for fees was properly preserved.
Does a Dismissed Florida Lawsuit Always Result in Attorney’s Fees?
No.
A useful way to analyze the issue is:
| Voluntary dismissal + valid fee basis + prevailing-party status + properly preserved claim = potential fee entitlement |
Examples:
- Voluntary dismissal of a contract action: The defendant will often qualify as the prevailing party.
- Dismissal without prejudice: Fees can still be available.
- Plaintiff later refiles the case: That does not necessarily eliminate fees from the first action.
- Failure to prosecute: The defendant may qualify as the prevailing party.
- Failure to timely serve the defendant: The defendant may not qualify where no significant disputed issue was resolved.
- Lack of personal jurisdiction: May not support prevailing-party status, depending on the circumstances and governing authority.
- Defendant substantially satisfies the plaintiff’s demand before dismissal: The defendant may not be the prevailing party.
- Settlement or compromise followed by dismissal: There may be no prevailing party.
- Foreign-law clause: May prevent Florida’s reciprocal fee statute from applying.
- Fee clause defines attorney’s fees as costs: An additional route to recovery may exist.
The Contract and the Reason for Dismissal Both Matter
Perhaps the biggest mistake in analyzing attorney’s fees after dismissal is assuming that “dismissed” automatically means “defendant gets fees.” Florida law is more nuanced.
The court may need to determine:
- Why the lawsuit was dismissed;
- Whether the dismissal was voluntary or involuntary;
- Whether any significant issue was actually decided;
- What litigation objective each party achieved;
- Whether the parties reached a settlement;
- Whether a contract or statute authorizes attorney’s fees;
- Whether § 57.105(7) makes the contractual provision reciprocal;
- What state’s law governs the contract;
- Whether the contract defines attorney’s fees as costs; and
- Whether the party seeking fees properly preserved the claim.
For creditors, businesses, consumers, and litigants considering dismissal, the attorney-fee consequences should therefore be evaluated before the dismissal is filed whenever possible.
Frequently Asked Questions
Can a defendant get attorney’s fees if the plaintiff voluntarily dismisses a Florida lawsuit?
Generally yes, if a statute or contract authorizes prevailing-party attorney’s fees. Florida generally treats the defendant as the prevailing party following a voluntary dismissal, subject to recognized exceptions.
Can the defendant recover fees if the dismissal is without prejudice?
Yes. A dismissal does not necessarily need to be with prejudice for prevailing-party fees to be available.
Does refiling the lawsuit eliminate the attorney’s fees from the first case?
Not necessarily. Florida courts have held that a defendant may remain the prevailing party in the first dismissed action even if the plaintiff later refiles the claim.
Can a defendant recover attorney’s fees when the case was dismissed because he or she was never served?
Not automatically. Torruella and the Eleventh Circuit’s 2026 Rivabem decision indicate that a dismissal based solely on service or personal-jurisdiction grounds may not make the defendant a prevailing party where no significant issue in the underlying dispute was resolved.
Can attorney’s fees be awarded after a failure-to-prosecute dismissal?
Yes, depending on the applicable fee provision or statute. Kyte v. Discover Bank held that a defendant was entitled to fees following a failure-to-prosecute dismissal under the circumstances of that case.
Does Florida’s reciprocal attorney-fee statute always apply to credit-card agreements?
No. Section 57.105(7) can make a unilateral fee provision reciprocal when Florida law governs, but a valid choice-of-law provision selecting another state’s law may change the result. The timing and preservation of the choice-of-law argument can also matter.
Florida Attorney’s Fees and Collection Litigation
Attorney-fee entitlement after dismissal can materially affect the economics of a lawsuit, particularly in debt collection and contract cases where the amount of attorney’s fees can equal or exceed the underlying dispute.
Pinerock Law represents creditors and businesses in Florida collection litigation, commercial debt disputes, judgment enforcement, and related creditor-remedy proceedings.
Questions regarding attorney’s fees, dismissal strategy, contractual fee provisions, or Florida collection litigation should be evaluated based on the particular contract, procedural history, and applicable Florida law.
| DISCLAIMER
This article is for general informational purposes only and does not constitute legal advice. Attorney-fee entitlement is fact-specific. Florida appellate decisions may differ depending on the type of dismissal, the governing fee provision, the procedural posture, and the applicable body of law. The law may change after publication. |
