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Florida Appeals Court Allows Condo Association to Re-File Breach of Warranty Case It Previously Dismissed

The 5th District Court of Appeal recently revived a condominium association’s lawsuit against the property’s owner for breach of warranty. The appeals court decided that, although Florida recognizes a rule that prevents a plaintiff from reviving a case it already voluntarily dismissed twice, one voluntary dismissal and one agreed order signed by the trial judge do not amount to the same as two dismissals. The case serves as a clear reminder of the importance of understanding the precise bounds of the rules governing civil litigation in order to maximize the options available to you.

The events that eventually led to this ruling revolved around the conversion of an Orange County apartment complex into condominiums. Unhappy with the conversion, the Cypress Fairway Condominium Association, Inc. sued the property owner, Cypress Madison Ownership Co., for breach of statutory and implied warranties.

After the condo association launched its action, the owner asked the trial court to dismiss the lawsuit, contending that the association failed to state a claim. In other words, the owner argued that, even if the trial court accepted as true every fact advanced by the association, the association still did not have a valid claim for breach. The parties eventually resolved the owner’s motion by submitting to the judge a proposed agreed order that called for dismissal of the case but gave the association 30 days to amend its complaint. The judge signed the order.

The association re-filed, but not until seven months had passed. The owner challenged the amended complaint as being too late. The association, in turn, simply chose to file a voluntary dismissal of the case. Later, the association filed a new lawsuit that was largely identical to the previous one. The owner asked the court to throw out the case, arguing that, under Florida’s rules that govern civil litigation, the association had previously dismissed the case twice, and this amounted to a final ruling on the merits.

The trial court agreed and threw out the case, but the association appealed. The appeals court disagreed, giving the association’s case new life. The court explained that, while the owner was correct that the Florida Rules of Civil Procedure recognize a “two-dismissal rule,” that was not what happened in this case. Here, there was only one dismissal, not two. The first cessation of the case resulted from an order entered by the trial judge in response to a motion filed by the owner. The fact that the order the judge signed was an “agreed order” did not make it the equivalent of a motion for dismissal launched by the association.

The court reached this conclusion by looking to the federal law. Florida’s two-dismissal rule is contained in Rule 1.420, which is the state’s counterpart to Rule 41 in the Federal Rules of Civil Procedure. Under federal law, a dismissal that results from the entry of a court order cannot count as being the same as a dismissal by the party who launched the lawsuit. In this case, the association only voluntarily dismissed its case once, so the rule did not apply.

When you encounter a business dispute, engaging in civil litigation involves many strategies and maneuvers that potentially can benefit your side and enhance your position. Used incorrectly or imprecisely, though, these same techniques can harm or even destroy your case. That’s why, if you find yourself facing a lawsuit over your real estate dispute, you should retain experienced legal counsel The knowledgeable Florida real estate attorneys at Stok Kon + Braverman can help you as you pursue or defend your needs. Our skilled and zealous attorneys can offer you a clear understanding of your options and advise about how best to protect your interests.

Contact us online or by calling (954) 237-1777 to schedule your consultation.

More blog posts:

Seller Allowed to Keep Buyer’s Deposit For Failing to Close on Time, Florida Business Lawyers Blog, March 11, 2015

Commercial Property Broker Entitled to Enforce Lien to Collect Commission on Sale, Florida Business Lawyers Blog, Feb. 3, 2015

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