STATE MARSH v. DORAN (2007)

District Court of Appeal of Florida,First District.

STATE of Florida, ex rel., Elmer MARSH and Richard Storm, qui tam, Appellants, v. Theodore R. DORAN, individually, Doran, Wolfe, Rost & Ansay, P.A., a Law Firm incorporated under the laws of the State of Florida, Appellees.

No. 1D06-3323.

Decided: June 18, 2007

Paul M. Meredith and N. Kate Estes, of The Meredith Law Firm, St. Augustine, for Appellants. Theodore R. Doran, Michael Ciocchetti, and Audrie M. Harris, of Doran, Wolfe, Ansay, & Kundid, Daytona Beach; and David H. Burns, Tallahassee, for Appellees.

The primary issue in this case is whether the appellees were “prevailing parties” under section 68.086(3), Florida Statutes (2002). We hold that a defendant is entitled to recover attorney's fees under section 68.086(3), which awards fees to the prevailing party, after the plaintiff takes a voluntary dismissal without prejudice. The refiling of the same suit after the voluntary dismissal does not alter the appellees' right to recover prevailing party attorney's fees incurred in defense of the first suit. Caufield v. Cantele, 837 So.2d 371 (Fla.2002); Alhambra Homeowners Ass'n, Inc. v. Asad, 943 So.2d 316 (Fla. 4th DCA 2006). We find no error in the trial judge's denial of the motion for recusal.

AFFIRMED.

PER CURIAM.

BARFIELD, WOLF, and VAN NORTWICK, JJ., concur.

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