     Case: 11-60300     Document: 00511731421         Page: 1     Date Filed: 01/20/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                         January 20, 2012

                                     No. 11-60300                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



J.G.T., INCORPORATED,

                                                  Plaintiff-Appellant
v.

ASHBRITT, INCORPORATED; FEDERAL INSURANCE COMPANY,

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:09-CV-00380


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant J.G.T., Inc., (“J.G.T.”) sued Defendants-Appellees
Ashbritt, Inc., and Federal Insurance Co. (collectively, “Ashbritt”) for breach of
contract. The district court, finding J.G.T.’s corporate status suspended at the
time the complaint was filed, granted Ashbritt’s motion for summary judgment
and dismissed the action without prejudice. The district court also awarded
attorney’s fees to Ashbritt. J.G.T. now appeals the fee award. We affirm.


        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11-60300

      The parties’ contract provided the basis for fee shifting: “In any dispute,
the prevailing part [sic] shall be entitled to an award of reasonable attorney’s
fees . . . .” J.G.T. alleged that, because there had been no adjudication on the
merits, Ashbritt could not be a “prevailing party” under the contract. The
district court responded that, under Florida law, adjudication on the merits is
not a precondition to prevailing party status, and entered an order granting
Ashbritt $58,826.16 in fees and costs. See Prescott v. Anthony, 803 So. 2d 835,
836 (Fla. 2d Dist. Ct. App. 2001) (“The general rule is that when a plaintiff
voluntarily dismisses an action, the defendant is the prevailing party.”). On
appeal, J.G.T. attempts to distinguish Prescott on the grounds that the dismissal
in the instant case was involuntary rather than voluntary. For the following
reasons, this distinction does not undermine the district court’s conclusion.
      Although Ashbritt does not direct us to precedent holding precisely that
grant of summary judgment and involuntary dismissal without prejudice results
in “prevailing party” status under a contract, Florida case law compels this
conclusion. First, the district court’s conclusion is well-settled that adjudication
on the merits is not necessary for “prevailing party” status. See, e.g., Alhambra
Homeowners Ass’n, Inc. v. Asad, 943 So. 2d 316, 318 (Fla. 4th Dist. Ct. App.
2006) (“The general rule is that when a plaintiff voluntarily dismisses an action,
the defendant is the ‘prevailing party’ within the meaning of statutory or
contractual provisions awarding attorney’s fees to the ‘prevailing party’ in
litigation.”). Second, Florida courts grant “prevailing party” status based on
various other types of involuntary dismissals.        See Baratta v. Valley Oak
Homeowners Ass’n, 891 So. 2d 1063, 1064-65 (Fla. 2d Dist. Ct. App. 2004)
(dismissal for failure to prosecute); Mardan Kitchen Cabinets, Inc. v. Bruns, 312
So. 2d 769, 770 (Fla. 3d Dist. Ct. App. 1975) (dismissal for lack of jurisdiction);
Point East Four Condominium Corp., Inc. v. Zevuloni & Assocs., Inc., 50 So. 3d
687, 688 (Fla. 4th Dist. Ct. App. 2010) (dismissal for failure to state a claim);

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                                 No. 11-60300

Valcarel v. Chase Bank USA NA, 54 So. 3d 989, 991 (Fla. 4th Dist. Ct. App.
2010) (dismissal for attorney misconduct).      Lastly, Florida courts do not
distinguish on the basis of voluntariness where fee shifting is statutory. Nudel
v. Flagstar Bank, FSB, 60 So. 3d 1163, 1165 (Fla. 4th Dist. Ct. App. 2011) (“For
the purpose of determining a ‘prevailing party’ under section 57.105(7), we see
no reason to distinguish between a voluntary dismissal without prejudice and
a court's involuntary dismissal without prejudice.”).
      The district court was correct to award fees to Ashbritt as a “prevailing
party.” Its judgment is AFFIRMED.




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