FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D23-121

LT Case No. 2018-CA-5658

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SEJAL KUTHIALA, M.D.,

Appellant,

v.

DAVID M. GOLDMAN and BETH 

MAYERS GOLDMAN,

Appellees.

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On appeal from the Circuit Court for Duval County.

Gilbert L. Feltel, Jr., Judge.

M. Scott Thomas, of Burr & Forman, LLP, Jacksonville, for 

Appellant.

Douglas Bradford Hughes, of Cobb & Gonzalez, P.A., Jacksonville, 

for Appellees.

September 15, 2023

WALLIS, J.

Sejal Kuthiala (Appellant) appeals an order denying her 

motion for attorney’s fees filed pursuant to section 768.79, Florida 

Statutes (2022). We reverse.
2

This case began when David M. Goldman and Beth Mayers 

Goldman (Appellees) filed a three-count complaint against 

Appellant. During the litigation, Appellant served proposals for 

settlement on both Appellees pursuant to section 768.79. Appellees 

did not respond to either proposal. 

The trial court granted Appellant’s summary judgment 

motion on the first and third counts of the complaint, and denied 

the motion on the second count of the complaint. After the court 

ruled on the motions for summary judgment, Appellees filed a 

notice of voluntary dismissal without prejudice of their case against 

Appellant. 

Thereafter, Appellant filed a motion to tax costs and 

attorney’s fees based on Appellees’ rejection of her proposals for 

settlement. The trial court ultimately denied Appellant’s request 

for attorney’s fees, finding that granting the motion “would be 

inconsistent with binding authority.”1 

On appeal, Appellant acknowledges that MX Investments v. 

Crawford, 700 So. 2d 640, 641–42 (Fla. 1997), held that a dismissal 

without prejudice does not support an award of attorneys’ fees 

under section 768.79. She argues, however, that MX Investments

is distinguishable from this case because, here, there was an 

adjudication on the merits on counts one and three. Instead, 

Appellant argues that this Court’s decision in Scherer Construction 

& Engineering of Central Florida, LLC v. Scott Partnership 

Architecture, Inc., 151 So. 3d 528 (Fla. 5th DCA 2014), is controlling 

and requires reversal of the order denying her request for attorney’s 

fees.

In Scherer, our court held that attorney’s fees were not 

awardable under section 768.79 for a claim that was voluntarily 

dismissed. 151 So. 3d at 530. However, the Scherer court affirmed 

the portion of the trial court’s order that awarded attorney’s fees 

under section 768.79 on the claim on which the trial court had 

entered summary judgment in favor of the defendant. Id.; see also 

1 The order granted Appellant’s request for costs and ordered 

that Appellees pay Appellant $2,207.38 in costs.
3

CodeVentures, LLC v. Vital Motion Inc., No. 22-11288, 2023 WL 

2644173 (11th Cir. Mar. 27, 2023) (following Scherer).

We agree with Appellant that MX Investments is factually 

distinguishable from the instant case because there the plaintiffs 

voluntarily dismissed the entire action and none of the claims were 

adjudicated on the merits. We likewise agree that the facts in this 

case are identical to those in Scherer, which controls the outcome of 

this case. Therefore, based on Scherer, we reverse the order denying 

Appellant’s motion to tax costs and attorney’s fees and remand for 

entry of an order awarding attorney’s fees to Appellant on counts 

one and three of her complaint. 

REVERSED and REMANDED with instructions. 

MAKAR and MACIVER, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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