Filing # 145122410 E-Filed 03/04/2022 04:20:03 PM

IN THE COUNTY COURT FOR THE ELEVENTH JUDICAL CIRCUIT

IN AND FOR MIAMI-DADE COUNTY, FLORIDA

AKLIPSE ASSET MANAGEMENT, INC.

Plaintiff,
CIVIL DIVISION
vs. CASE NO. 2020-25273 CC 26

NATALIA SOLANGE FONT POMALES

AND ANTHONY MARTINEZ,

Defendants.
_____________________________________/

DEFENDANTS’ MOTION FOR AWARD OF TRIAL COURT

AND APPELLATE COURT ATTORNEYS’ FEES AND COSTS

COMES NOW the Defendants, NATALIA SOLANGE FONT POMALES and

ANTHONY MARTINEZ, by and through the undersigned counsel, and pursuant to Rule 1.525,

Fla. R. Civ. P., and this Court’s Order Vacating Order of Voluntary Dismissal and Order of

Dismissal with Prejudice, hereby moves for an award of attorneys’ fees and costs incurred at both

the trial and appellate levels. In support thereof, Defendants further state:

1. This was a residential eviction action brought under a lease agreement and Florida

Chapter 83.

2. Following the appellate opinion rendered February 23, 2022 by the Florida Third

District Court of Appeals, on March 2, 2022 this Court entered an Order Vacating Order

of Voluntary Dismissal while also entering its own Order of Dismissal.

3. Following entry of the Order of Dismissal, and pursuant to the Order’s own findings

and ruling, the Defendants are deemed the prevailing party in this action.

4. As the prevailing party, Defendants seek reimbursement of their attorneys’ fees and

costs incurred in both the trial court and appellate court under Florida Chapter 83, the parties’ lease

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agreement, Rule 1.420, Fla. R. Civ. P., and the Order Granting Appellant’s Motion for Attorney’s

Fees rendered by the Third District Court of Appeals on February 23, 2022 (a copy of which is

docketed in the Court record).

5. Defendants and their attorneys are parties to written fee agreement(s) wherein

Defendant is indebted to the undersigned and co-counsel for its time and costs expended in

both this action as well as in the appeal.

6. This motion is timely under Rule 1.525, Fla. R. Civ. P. and in accordance with this

Courts March 2, 2022, Dismissal Order.

MEMORANDUM OF LAW

Fla. Stat. § 83.48 provides in pertinent part:

“In any civil action brought to enforce the provisions of the rental agreement or this
part, the party in whose favor a judgment or decree has been rendered may recover
reasonable attorney fees and court costs from the nonprevailing party. The right to
attorney fees in this section may not be waived in a lease agreement . . .”

As succinctly stated by this Court in its Order of Dismissal, the Defendants are deemed

the prevailing party in this action, and therefore entitled to an award of attorneys’ fees from the

Plaintiff, who is the nonprevailing party. Additionally, an involuntary dismissal or dismissal of

this action as a sanction is an adjudication on the merits. Smith v. St. Vil, 714 So. 2d 603 (Fla. 4th

DCA 1998)(An order dismissing “an action or claim for failure to comply with the rules or any

order of court is an adjudication on the merits.”)

The lease agreement between the parties contains a provision that defines costs as including

attorneys’ fees, providing:

“In any lawsuit to enforce the Lease or under applicable law, the party in whose
favor a judgment or decree has been rendered may recover its reasonable court
costs, including attorney’s fees, from the nonprevailing party.” (emphasis added)

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 Defendants are also entitled to attorney’s fees as costs under Fla. R. Civ. P. 1.420(d). See

Wilson v. Rose Printing Co., 624 So. 2d 257, 258 (Fla. 1993) (“[w]here a statute or agreement of

the parties provides that the term ‘costs’ includes attorney's fees, such fees are taxable

under Rule 1.420(d).”).1 Here, the lease contract defines the term 'costs' to include attorney's fees.

Because Defendants are the prevailing party in this action by virtue of the Court’s Order

of Dismissal, including the Order’s specific finding and ruling that Defendants are deemed to be

the prevailing party, they are entitled to their costs under Rule 1.420, Fla. R. Civ. P. Furthermore,

where, as here, a contract makes attorney’s fees part of recoverable costs, the Court has

no discretion and is mandated to award them under Fla. R. Civ. P. 1.420(d). Wilson; Hertz

Corp. v. Brown, 678 So.929 (Fla. 3rd DCA 1996)(holding that Rule. 1.420(d) is unambiguous).2

WHEREFORE, Defendants request that this Court to enter an Order granting entitlement

to attorney’s fees and costs incurred in this action and petitions this Court for an Order

and Judgment directing the Plaintiff to pay reasonable attorney’s fees and costs incurred in both

this action and the appellate action under the authority cited in this motion and the Court’s

inherent powers. The Defendants also seek a multiplier in this cause for work and times

expended at the trial level.3

1 See also Stout Jewelers, Inc. v. Corson, 639 So. 2d 82 (Fla. 2d DCA 1994) (“Rule 1.420(d) provides in
pertinent part that [c]osts in any action dismissed under this rule shall be assessed and judgment for costs
entered in that action.")

2 See Nat’l Union Fire Ins. Co. v. F. Vicino Drywall II, Inc., 2011 U.S. Dist. LEXIS 164353 (S.D. Fla.,
Aug. 22, 2011) (“[Fla. Stat. 627.428(1)] provides that entry of any "judgment or decree" against an
insurer, in favor of an insured, entitles the insured to recover its attorney’s fees. Judge Gold's November
29, 2011 order dismissing National Union's lawsuit certainly qualifies as such a judgment or decree.”);
see Renovaship Inc v. Quatermain, 208 So. 3d 280 (Fla. 3d DCA 2016) (“[b]y its terms, rule
1.540(b)(4) provides relief only from a "judgment or decree." However, this court has recently held that
the term "judgment" includes a final order of dismissal)
3 Affidavits and timesheets shall be furnished and filed with the Court shortly.

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 Respectfully submitted on March 4, 2022.

s/ Robert Wayne, Esq.

Robert Wayne, Esq.
Florida Bar No.: 130049
Shawn A. Wayne, Esq.
Florida Bar No.: 105633
LAW OFFICE OF ROBERT WAYNE
1225 S.W. 87th Ave.
Miami, Florida 33174
Telephone: 305-264-5397
Email: RwayneA36@aol.com
Email: Sandresw@aol.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing motion was served
by electronic service via Florida’s E-filing Portal to all interested parties registered to receive such
service, and by U.S. First-Class Mail on the following:

Aklipse Asset Management, Inc.

c/o Elisabeth Knights
P.O. Box 1232
Conyers, GA 30012
Homes@aklipse.com

s/ Robert Wayne, Esq.

Robert Wayne, Esq.
Florida Bar No.: 130049
Shawn A. Wayne, Esq.
Florida Bar No.: 105633

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