Kelly v. Bankunited, FSB, ___ So. 3d ___, 40 Fla. L. Weekly D684 (Fla. 4th DCA March 18, 2015)
The defendant in a mortgage foreclosure was not entitled to attorney’s fees when the plaintiff voluntarily dismissed the action after a short sale of the property because neither party substantially prevailed. Although the general rule is that the defendant is the prevailing party when the plaintiff takes a voluntary dismissal, applying the general rule under the facts of this case would elevate form over substance. The defendant lost its home and did not receive any proceeds from the sale, and the plaintiff received only 25% of its damages. Everyone took a beating in this case despite the merits. The court “noted that [its] holding does not require trial courts ‘to look behind a voluntary dismissal to decide whether the dismissal represents ‘an end or finality to the litigation on the merits,’’” an approach the court previously rejected.
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