Third District Court of Appeal

State of Florida 

Opinion filed January 12, 2022.

Not final until disposition of timely filed motion for rehearing.

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No. 3D21-369

Lower Tribunal Nos. 19-SC-131 & 20-10 AP

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Catamaran B.Y., Inc.,

Appellant,

vs.

Deren Giordano,

Appellee.

An Appeal from the County Court for Monroe County, Sharon I. 

Hamilton, Judge.

Robert E. Turffs, P.A., and Robert E. Turffs (Sarasota), for appellant.

Ovadia Law Group, P.A., and Chris Kasper (Boca Raton); Michael A. 

Stewart (West Palm Beach), for appellee.

Before EMAS, LOGUE, and GORDO, JJ. 

LOGUE, J.
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Catamaran B.Y., Inc. appeals the trial court’s order denying its motion 

for attorney’s fees as the prevailing party after Deren Giordano voluntarily 

dismissed the case below. Because a voluntary dismissal, while not an 

adjudication on the merits, generally entitles a defendant to attorney’s fees 

as the prevailing party, we reverse and remand for the trial court to determine 

a reasonable fee award.

Factual and Procedural Background

The underlying dispute is not particularly relevant to this appeal. 

Suffice it to say, a dispute arose over fees charged for the storage and repair 

of Giordano’s boat at the Catamaran Boat Yard in Key Largo. The dispute 

seemingly turned violent, and police were called. The owner of Catamaran 

then banned Giordano from the property, forcing Giordano, who lived on his 

boat, to obtain accommodations at a hotel. Because Giordano was unable

to enter the property to retrieve his boat, the boat remained on the property 

and accrued additional overnight storage fees. After four days, Giordano 

hired a boat captain to enter the property and retrieve the vessel. Giordano 

then sued Catamaran to recover damages related to his hotel stay and 

extended overnight storage fees. Seven months after filing his complaint, 

Giordano filed a notice of voluntary dismissal without prejudice. The trial 

court dismissed the case.
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After the complaint was voluntarily dismissed, Catamaran moved for 

its reasonable attorney’s fees as the prevailing party pursuant to a valid 

contractual provision. Giordano opposed the motion for fees arguing that 

Catamaran was not the prevailing party because the voluntary dismissal did 

not act as an adjudication on the merits. Giordano claimed that he had 

dismissed the case because of irreconcilable differences with his attorney, 

and therefore, the dismissal was unrelated to the merits of the case. The trial 

court denied the motion for fees finding that Catamaran was not the 

prevailing party and the voluntary dismissal did not operate as an 

adjudication on the merits. Catamaran timely appealed.

Analysis

The standard of review on the issue of entitlement to prevailing party 

attorney’s fees is abuse of discretion. Shands Teaching Hosp. & Clinics, Inc. 

v. Mercury Ins. Co. of Fla., 97 So. 3d 204, 213 (Fla. 2012). 

In Moritz v. Hoyt Enterprises, Inc., 604 So. 2d 807, 810 (Fla. 1992), the 

Florida Supreme Court declared that “the party prevailing on the significant 

issues in the litigation is the party that should be considered the prevailing 

party for attorney’s fees.” The Court explained that “the fairest test to 

determine who is the prevailing party is to allow the trial judge to determine 
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from the record which party has in fact prevailed on the significant issues 

tried before the court.” Id.

The general rule in Florida is that “when a plaintiff voluntarily dismisses 

an action, the defendant is the prevailing party.” Thornber v. City of Fort 

Walton Beach, 568 So. 2d 914, 919 (Fla. 1990). “It is not necessary for there 

to be an adjudication on the merits in order to be entitled to fees as a 

prevailing party.” Valcarcel v. Chase Bank USA NA, 54 So. 3d 989, 990 (Fla. 

4th DCA 2010). Therefore, in basing its determination that Catamaran was 

not the prevailing party on its failure to achieve an adjudication on the merits, 

the trial court erred by applying the wrong legal test. The proper test is 

whether Catamaran “in fact prevailed on the significant issues tried before 

the court.” Moritz, 604 So. 2d at 810. Giordano sued Catamaran for damages 

and failed to recover, therefore, Catamaran is the prevailing party.

Giordano asserts that Florida courts routinely acknowledge that the 

Thornber “rule does not apply without exception and that a court may look 

behind a voluntary dismissal at the facts of the litigation to determine if a 

party has prevailed.” Residents for a Better Cmty. v. WCI Cmtys., Inc., 291 

So. 3d 632, 634 (Fla. 2d DCA 2020); see also Kelly v. BankUnited, FSB, 159 

So. 3d 403, 406 (Fla. 4th DCA 2015) (recognizing that “strictly apply[ing] the 

general rule [of Thornber] . . . would elevate form over substance and lead 
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to a result contrary to the purpose of” fee-shifting provisions). In other words, 

“courts must look to the substance of litigation outcomes—not just 

procedural maneuvers—in determining the issue of which party has 

prevailed in an action.” Residents, 291 So. 3d at 634 (quoting Tubbs v. 

Mechanik Nuccio Hearne & Wester, P.A., 125 So. 3d 1034, 1040 (Fla. 2d 

DCA 2013)).

In Residents, a group of community homeowners voluntarily dismissed

its suit when the homeowner’s association became involved in the litigation 

asserting the same claims as the group. Id. This essentially mooted the 

group’s claims, however, as the Second District noted, it did not result in the 

defendant “achiev[ing] its objective of making the litigation go away as a 

result of the dismissal—the same claims remained pending against [the 

defendant].” Id.; see also Tubbs, 125 So. 3d at 1041–42 (holding that 

defendant was not the prevailing party in a foreclosure case where the 

plaintiff voluntarily dismissed its claims after a third party successfully 

foreclosed on its superior mortgage lien); Kelly, 159 So. 3d at 407 (holding 

that “in a situation where both [parties] compromised in effectively agreeing 

to a settlement to end their litigation, we will not hold [one party] responsible 

for payment of [the other party]’s attorneys’ fees”). Giordano does not assert

either that his claims against Catamaran became moot or that the parties 
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stipulated to a dismissal pursuant to a settlement, therefore these exceptions

to the general rule do not apply.1

Applying the general Thornber rule—with those limited exceptions 

discussed in the Residents/Tubbs/Kelly line of cases—we therefore

conclude that Catamaran is the prevailing party and is entitled to its 

reasonable attorney’s fees.

Reversed and remanded with instructions.

1 We distinguish on their facts the cases of Simmons v. Schimmel, 476 So. 

2d 1342 (Fla. 3d DCA 1985), and Englander v. St. Francis Hospital, Inc., 506 

So. 2d 423 (Fla. 3d DCA 1987) (en banc). Without reaching the issue, 

because it is unnecessary for us to do so, we note that our sister courts have 

rejected attempts to extend the holdings in these cases beyond the medical 

malpractice statute discussed in each case. See Alhambra Homeowners 

Ass’n v. Asad, 943 So. 2d 316, 320–21 (Fla. 4th DCA 2006); Dam v. Heart

of Fla. Hosp., Inc., 536 So. 2d 1177, 1178 (Fla. 2d DCA 1989); Vidibor v. 

Adams, 509 So. 2d 973, 974 (Fla. 5th DCA 1987).