In Wells Fargo Bank v. Lauri Mailloux, 2D14-5116 (Fla. 2d DCA October 30, 2015), the Second District Court of Appeal held that the inclusion of language purporting to render a notice of voluntary dismissal conditional upon an agreement between the parties which did not exist served to invalidate entirely the effect of the notice. Specifically, the Plaintiff is the case dismissed its foreclosure ” expressly … conditional upon Plaintiff and the Defendants agreeing to pay their own attorneys’ fees and costs.” Unfortunately, as the Plaintiff stipulated for purposes of appeal, no such agreement existed. The Defendant’s then moved to dismiss the case, succeded in securing the dismissal and then moved for attorney’s fees under Fla. R. Civ. P. 1.525 thirty days after the order of dismissal they obtained (but in excess of the notice of voluntary dismissal).

The issue on appeal was whether the voluntary dismissal was effective and whether the motion for attorney’s fees was timely. The Court held that the notice of voluntary dismissal, because it was expressly conditioned on an agreement that did not exist or come into fruition, was not effective. Efforts to characterize the language as a scriviner’s error were not accepted by either the trial or appellate court. The appellate court observed that due to the short time frame and harsh nature of the thirty day window within which to move for attorney’s fees, it would work inequity to commence the window from a facially ambiguous document like the conditional notice of voluntary dismissal. The Court also notes in a footnote that it rejects conditional notices of dismissal in the appellate context.

The opinion appears in conflict with Tunison v. Bank of America, N.A., 144 So. 3d 588, 592 (Fla. 2d DCA 2014) where the same court previously held that a similarly worded notice of voluntary dismissal was simply non-binding on the issue of whether the parties would bear their own fees and costs. The Second District Court of Appeal rationalized the divergent results by finding that since the motion for attorney’s fees in Tunison was filed within thirty days of the notice “whether the notice could be sufficient to serve a voluntary dismissal . . . was not an issue resolved . . . .” There certainly seems to be some tension between the opinions. On the one hand, the Mailloux opinion holds that notice was ineffective because it was conditional, but the Tunison opinion treats the condition as “non-binding.” Regardless, these two opinion make one thing clear, adding conditions or terms to a notice of voluntary dismissal should only be done where such an agreement is reach and the notice is jointly stipulated and signed by both parties. Otherwise, there is a risk that, as was the case in Mailloux, the Court may find the notice ineffective, to the great detriment of the party laboring under the belief that the case was dismissed.