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IN THE DISTRICT COURT OF APPEAL OF THE STATE

OF FLORIDA
FOURTH DISTRICT IN AND FOR PALM BEACH COUNTY, FLORIDA

CASE NO. 4D10-2674
LOWER CASE NO. 502007CA001349XXMB


BYRON HENN,

Appellant,

v.

ULTRASMITH RACING, L.L.C., etc.

Appellee.



REPLY BRIEF OF BYRON HENN






DANIEL S. WEINGER, ESQ.
CONRAD & SCHERER, LLP
Attorneys for Appellant
P. O. Box 14723
Fort Lauderdale, FL 33302
Tel: (954) 462-5500
Fax: (954) 463-9244
i
Table of Contents
Table of Contents ............................................................................................. i
Table of Authorities ........................................................................................ ii
Points on Appeal ............................................................................................ iv
Points on Appeal ............................................................................................ iv
Preface ............................................................................................................. v
I. Introduction and Response to Ultrasmiths Statement of Case and Facts ... 1
Argument ........................................................................................................ 2
II. The Trial Court Erred by Denying Defendants/Appellants
Motion for Prevailing Party Attorneys Fees When the Plaintiff
Voluntarily Dismissed its Case and Failed to Seek a Timely Review
Challenging the Validity of Said Voluntary Dismissal ............................... 2
III. Even Under the Trial Courts Revised Order, the Court Erred by
Denying Appellants Motion for Prevailing Party Attorneys Fees
When Dismissal was Involuntarily Entered as a Sanction .......................... 7
Conclusion .................................................................................................... 13
Certificate of Service .................................................................................... 15
Certificate of Type Size and Style ................................................................ 15
ii
Table of Authorities
Cases
Alhambra Homeowners Association, Inc. v. Asad,
943 So. 2d 316 (Fla. 4th DCA 2006) ................................................................ 1, 7
Anthony v. Marion County General Hospital,
617 F.2d 1164 (5th Cir. 1980) ............................................................................. 10
Caufield v. Cantele,
837 So. 2d 371 (Fla. 2002) .................................................................................. 12
DeLuca v. Harriman,
402 So. 2d 1205(Fla. 2d DCA 1981) .................................................................. 11
Frazier v. Dreyfuss,
14 So. 3d 1183 (Fla. 4th DCA 2009) ................................................................ 1, 7
Gordon v. Warren Heating & Air Conditioning, Inc.,
340 So.2d 1234 (Fla. 4th DCA 1976) ................................................................. 12
Grine v. Coombs,
214 F.R.D. 312 (W.D. Pa. 2003) ......................................................................... 10
Heston v. Vitale,
432 So. 2d 744 (Fla. 4th DCA 1983) .................................................................... 5
Link v. Wabash R.R. Co.
370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) ............................................. 9
McArthur Dairy, Inc. v. Guillen,
470 So. 2d 747 (Fla. 3d DCA 1985) ............................................................. 11, 13
McCullough v. Lynaugh,
835 F.2d 1126 (5th Cir. 1988) ............................................................................. 10
Mitchell v. Beach Club of Hallandale Condominium Association, Inc.,
17 So. 3d 1265 (Fla. 4th DCA 2009) .................................................................... 8
Moritz v. Hoyt Enter., Inc.,
604 So. 2d 807 (Fla. 1992) .................................................................................. 11
Nasious v. Two Unknown B.I.C.E. Agents,
492 F.3d 1158 (10th Cir. 2007) ........................................................................... 10
Olsen v. Mapes,
333 F.3d 1199 (10th Cir. 2003) ....................................................................... 9, 10
iii
Pegasus Companies, Inc. v. RREEF America,
995 So. 2d 1180 (Fla. 4th DCA 2008) .................................................................. 5
Pharmafax, Inc. v. Segal,
654 So. 2d 1244 (Fla. 3d DCA 1995) ................................................................... 5
Randle Eastern Ambulance Serv. v. Vasta,
360 So. 2d 68 (Fla. 1978) .................................................................................. 5, 6
Roscioli Yachting Center, Inc. v. Lexington Ins., Co.,
601 So. 2d 1246 (Fla. 4th DCA 1992) .......................................................... 10, 11
Shaw v. Schlusemeyer,
683 So. 2d 1187 (Fla. 5th DCA 1996) .................................................................. 8
Sholkoff v. Boca Raton Community Hospital, Inc.,
693 So. 2d 1114 (Fla. 4th DCA 1997) ................................................................ 12
Sun First National Bank of Delray Beach v. Green, Crane, Concrete Services,
Inc.,
371 So. 2d 492 (Fla. 4th DCA 1979) .................................................................... 6
Statutes
Florida Statutes 57.105 ......................................................................................... 13
Rules
Fed. R. Civ. P. 41 ................................................................................................ 9, 10
Fla. R. Civ. P. 1.090 .................................................................................................. 9
Fla. R. Civ. P. 1.420 .................................................................................. 4, 8, 11, 13
Fla. R. Civ. P. 1.530 .............................................................................................. 2, 4
iv
Points on Appeal
THE TRIAL COURT ERRED BY DENYING
DEFENDANTS/ APPELLANTS MOTION FOR
PREVAILING PARTY ATTORNEYS FEES WHEN
THE PLAINTIFF VOLUNTARILY DISMISSED ITS
CASE AND FAILED TO SEEK A TIMELY REVIEW
CHALLENGING THE VALIDITY OF SAID
VOLUNTARY DISMISSAL

EVEN UNDER THE TRIAL COURTS REVISED
ORDER, THE COURT ERRED BY DENYING
APPELLANTS MOTION FOR PREVAILING PARTY
ATTORNEYS FEES WHEN DISMISSAL WAS
INVOLUNTARILY ENTERED AS A SANCTION
v
Preface
This is the Reply Brief of BYRON HENN, Defendant below.
BYRON HENN is referred to as Appellant, Defendant, or his proper name.
ULTRASMITH RACING, LLC, is referred to as Appellee, Plaintiff, or
Ultrasmith.
The following symbols will be used:
R. ___ references are to the Record on Appeal.
I.B. ___ references are to Appellants Initial Brief
A.B. ___ references are to Appellees Answer Brief
Unless otherwise indicated, all emphasis is supplied by the writer.

1
I. Introduction and Response to Ultrasmiths Statement of Case and
Facts
As a threshold matter, the fact section of Ultrasmiths Answer Brief is a
mishmash of improper argument and factual allegations that are irrelevant to the
issues in this appeal. Mr. Henn disputes the recitation of Ultrasmiths factual
allegations and could just as easily present his own version casting the record
evidence in a completely different light. Such posturing, however, serves no
purpose in determining prevailing party status when a case is dismissed. In fact,
this is precisely the type of fact based jurisprudence that this Court sought to avoid
by developing the bright-line test first set forth in Alhambra Homeowners
Association, Inc. v. Asad, 943 So. 2d 316 (Fla. 4th DCA 2006), and later
reaffirmed in Frazier v. Dreyfuss, 14 So. 3d 1183 (Fla. 4th DCA 2009).
Ultrasmiths entire argument is nothing more than a transparent attempt to mislead
this Court into finding that one can only be the prevailing party for attorneys fees
purposes when they can claim a victory on the merits. This is simply not the law
in Florida.
2
Argument
II. THE TRIAL COURT ERRED BY DENYING
DEFENDANTS/ APPELLANTS MOTION FOR
PREVAILING PARTY ATTORNEYS FEES WHEN
THE PLAINTIFF VOLUNTARILY DISMISSED ITS
CASE AND FAILED TO SEEK A TIMELY REVIEW
CHALLENGING THE VALIDITY OF SAID
VOLUNTARY DISMISSAL
A. The Trial Court Erred by Making
Substantive Changes to its October 22, 2009, Final
Order Several Months After the Expiration of
Ultrasmiths Time for Seeking Rehearing
Ultrasmiths Motion to Strike Defendants Motion for Attorneys Fees and
for Clarification was a thinly veiled attempt to raise issues that were untimely and
which could only be raised by either a direct appeal or a motion under Rule 1.530.
As if to disprove its own claim, Ultrasmith opens the argument section of its brief
with a dissertation on the issue of when a representative can or cannot act on behalf
of a corporation; an issue that is wholly irrelevant unless one were challenging the
propriety of the underlying order. Ultrasmith essentially argues that the trial court
could not have accepted an oral voluntary dismissal by the sole shareholder of a
closely held corporation because it would have been error to do so. Whether by
error or not, this is exactly what the trial court did and Ultrasmith never followed
through with an appeal of that decision. Moreover, as discussed infra, Ultrasmiths
assertion of error in this regard is not supported by the applicable law in any event.
3
The intent of the October 22 order is crystal clear. Although the trial court
never used the term voluntary dismissal, the express language of the order leads
to no other reasonable conclusion but that it, correctly or not, accepted an oral
voluntary dismissal by Ultrasmith. The order in its entirety states:
This case is dismissed without prejudice. Barry Smith, who appeared
on behalf of Ultrasmith as its principal and managing agent, orally
agreed to dismissal. Barry Smith tried to submit a written dismissal
on behalf of Ultrasmith (a copy of which is attached); however, he
may not do so as Florida law requires corporations to file motions and
their court filings through counsel. The Court reserves jurisdiction to
entertain any motions for attorneys fees or costs.
(R. 500.) The clear import is that, because Barry Smith cannot submit a filing to
accomplish a voluntary dismissal, the court was creating an avenue to accomplish
his goal by proactively entering an order of voluntary dismissal pursuant to his oral
request. Critically, the court sought fit to attach a copy of the attempted written
dismissal to the order, which would be a meaningless act if the order were intended
as a sanction. Interestingly, and perhaps tellingly, Ultrasmith quotes the entire
order except for that portion indicating that a copy of Smiths written dismissal is
attached. (A.B. p. 8.) The order reads quite differently without this critical
inclusion.
Additionally, there is nothing in the order to indicate that the Court was
sanctioning Ultrasmith. The court does not even mention or reference in any way
its previous instruction that the case could be dismissed if Ultrasmith failed to
4
attend the hearing represented by counsel. The court simply acknowledges that a
corporation cannot file motions and other court filings without counsel. The court
makes no indication, however, that it believes it cannot take action on its own to
effectuate a dismissal based upon the oral request of the corporate representative
and sole shareholder of Ultrasmith. Drawing a distinction between when a party
may submit a written dismissal and when the court may do so in an order pursuant
to an oral request is supported by the express language of Rule 1.420(a)(2), which
states that [e]xcept as provided in subdivision (a)(1) of this rule, an action shall
not be dismissed at a party's instance except on order of the court. . .
The question of whether the court was arguably mistaken in accepting Barry
Smiths oral request for a voluntary dismissal became irrelevant when Ultrasmith
failed to file a timely challenge under Rule 1.530 and abandoned its appeal. For
purposes of Mr. Henns Motion for Attorneys Fees, the case was voluntarily
dismissed. The only reasonable conclusion to be drawn from the courts order is
that the case was voluntarily dismissed at Ultrasmiths request.
Ultrasmith correctly concedes that Rule 1.540 does not apply to this case
because it was not asking the court to correct a mistake or clerical error. (A.B. p.
12.) With this concession in mind, Ultrasmith can offer no procedural basis for the
trial courts ability to revisit the content of the October 22, 2009, order.
5
Finally, it should be noted that Ultrasmiths claim that Barry Smith was
without power to request a voluntary dismissal is incorrect in any event. Although
generally, a corporation may only appear in court and submit filings through
counsel, a corporate representative is permitted, without counsel, to take actions on
behalf of the company that relate to submitting to the courts jurisdiction. See
Pharmafax, Inc. v. Segal, 654 So. 2d 1244, 1246 (Fla. 3d DCA 1995) (recognizing
that submitting to the trial court's jurisdiction is a decision that may be made by
the proper corporate agent, without the formality of an attorney's representation,
since it does not amount to a court appearance, but, rather, is a decision that can
be made by any party, including a corporate party). See also Pegasus Companies,
Inc. v. RREEF America, 995 So. 2d 1180 (Fla. 4th DCA 2008) (affirming on the
authority of Pharmafax). Because announcing a voluntary dismissal is nothing
more than a method for a party to revoke its submission to the jurisdiction of the
court, it necessarily follows that a corporate representative has the power to
announce its intention to voluntarily dismiss its case without the assistance of an
attorney. See Randle Eastern Ambulance Serv. v. Vasta, 360 So. 2d 68, 68 (Fla.
1978) (recognizing that the effect of a voluntary dismissal is equivalent in all
respects to a deprivation of jurisdiction); Heston v. Vitale, 432 So. 2d 744, 745
(Fla. 4th DCA 1983) (acknowledging the well-established proposition that a
6
voluntary dismissal is a mechanism that acts to relinquish jurisdiction to such an
extent that a court is not even permitted to reinstate a cause of action).
In fact, this Court has held that even when a voluntary dismissal is a nullity,
a trial court is still without authority to reinstate the claims. See Sun First National
Bank of Delray Beach v. Green, Crane, Concrete Services, Inc., 371 So. 2d 492,
492 (Fla. 4th DCA 1979) (finding that based upon the strong language in Vasta, a
trial court is without jurisdiction to reinstate a case even when the voluntary
dismissal itself was improper).
Based upon the foregoing, as well as the more extensive arguments
contained in Appellants Initial Brief, the trial court committed reversible error in
failing to award prevailing party attorneys fees to Appellant after Appellee
voluntarily dismissed its case.
B. Because the Final Order in this Case was
Based Upon a Voluntary Dismissal, the Trial
Court Committed Reversible Error When it Denied
Appellants Motion for Prevailing Party Attorneys
Fees
Appellee does not challenge the proposition that Mr. Henn is entitled to
prevailing party attorneys fees if the trial courts October 22, 2009, order were a
voluntary dismissal. Appellant relies on the argument in the Initial Brief as to this
issue, including this Courts adoption of a bright-line test in Alhambra
7
Homeowners Association, Inc. v. Asad, 943 So. 2d 316 (Fla. 4th DCA 2006), as
well as the authorities cited therein.
Based upon the foregoing, as well as the more extensive arguments
contained in Appellants Initial Brief, the trial court committed reversible error in
failing to award prevailing party attorneys fees to Appellant after Appellee
voluntarily dismissed its case.
III. EVEN UNDER THE TRIAL COURTS REVISED
ORDER, THE COURT ERRED BY DENYING
APPELLANTS MOTION FOR PREVAILING PARTY
ATTORNEYS FEES WHEN DISMISSAL WAS
INVOLUNTARILY ENTERED AS A SANCTION
Even if the trial court was correct in treating the October 22, 2009, final
order as an involuntary dismissal as a sanction against Ultrasmith for ignoring the
courts previous orders to appear with counsel, the court still erred by failing to
award prevailing party attorneys fees to Mr. Henn. For the most part, Appellant
relies upon the argument in his Initial Brief, and specifically the discussion of this
Courts decision in Frazier v. Dreyfuss, 14 So. 3d 1183 (Fla. 4th DCA 2009),
which applied the bright-line test established in Alhambra Homeowners
Association, Inc. v. Asad, 943 So. 2d 316 (Fla. 4th DCA 2006), to an involuntary
dismissal.
1


1
Appellant also relies upon the argument in his Initial Brief that the opinions in
Mitchell v. Beach Club of Hallandale Condominium Association, Inc., 17 So. 3d
8
Ultrasmith attempts to distinguish Frazier by making the spurious argument,
without any supporting authority, that a sua sponte dismissal as a sanction for
failure to comply with a court order is not an involuntary dismissal under Rule
1.420(b) because it was not the result of a motion by Mr. Henn. This argument
defies logic and begs the question: if a sua sponte dismissal as a sanction for
failure to comply with a court order is not an involuntary dismissal under Rule
1.420, which Rule of Procedure authorizes a court to ever enter such a dismissal?
Rule 1.420 is titled Dismissal of Actions. Rule 1.420(b) is titled
Involuntary Dismissal. The remainder of this subsection does not purport to be a
definition of any and all involuntary dismissals, but merely sets parameters for
certain situations. Nowhere does the Rule state that a court may not enter an
involuntary dismissal on its own motion. Ultrasmith takes the myopic approach of
focusing on the introductory language of the rule that [a]ny party may move for
dismissal of an action or of any claim against that party for failure of an adverse
party to comply with these rules or any order of court. Notice of hearing on the
motion shall be served as required under rule 1.090(d). The clear import of this
language is to ensure that when a party moves for an involuntary dismissal, they
comply with the time for service requirements of Rule 1.090(d) so that the non-

1265 (Fla. 4th DCA 2009), and Shaw v. Schlusemeyer, 683 So. 2d 1187 (Fla. 5th
DCA 1996), are factually inapplicable.
9
moving party is given proper notice. Notice that its case might be dismissed if it
did not obtain counsel was provided to Ultrasmith by the court in its September 15,
2009, order setting the status conference. (R. 496-97.) A second notice was
provided after Ultrasmith failed to appear at the subsequent status conference on
October 15, 2009. (R. 498.) Moreover, the issue of notice has never even been
challenged.
Without specifically stating as much, Ultrasmith is claiming that a court is
prohibited from entering a sua sponte involuntary dismissal under the rule by
negative implication. Although the undersigned has not found any Florida caselaw
on point, federal jurisprudence is brimming with opinions rejecting this same
contention under the corresponding Federal Rule of Civil Procedure. Rule 41 of
the federal rules provides:
(b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute
or to comply with these rules or a court order, a defendant may move
to dismiss the action or any claim against it.
The federal courts have consistently held that sua sponte orders of dismissal
for failure to comply with the rules or a court order are involuntary dismissals
under Rule 41. See Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003)
(citing Link v. Wabash R.R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 8 L.Ed.2d
734 (1962), for the proposition that [a]lthough the language of Rule 41(b) requires
that the defendant file a motion to dismiss, the Rule has long been interpreted to
10
permit courts to dismiss actions sua sponte for a plaintiff's failure to prosecute or
comply with the rules of civil procedure or court's orders); Nasious v. Two
Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 n.2 (10th Cir. 2007) (citing Olsen);
McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988) (holding that under
Rule 41(b), [a] district court may dismiss an action for failure of a plaintiff to
prosecute or to comply with any order of court. . . . The court possesses the
inherent authority to dismiss the action sua sponte, without motion by a
defendant); Anthony v. Marion County General Hospital, 617 F.2d 1164, 1167
(5th Cir. 1980) (recognizing that under Rule 41(b), a court may not only dismiss
for want of prosecution upon motion of a defendant, but it may also sua sponte
dismiss an action whenever necessary to achieve the orderly and expeditious
disposition of cases); Grine v. Coombs, 214 F.R.D. 312, 361-62 (W.D. Pa. 2003)
(Courts have recognized that motions to dismiss an action under Rule 41 may be
raised sua sponte by the court under its inherent case management powers).
For its part, Ultrasmith relies on nothing but the inapplicable decision in
Roscioli Yachting Center, Inc. v. Lexington Ins., Co., 601 So. 2d 1246 (Fla. 4th
DCA 1992). in support of the outlandish proposition that a court is without
authority to issue a sua sponte involuntary dismissal as a sanction under the Rule.
That case, however, involved a voluntary dismissal that was never filed, was never
the basis of a written order, and was never consented to by the plaintiff in any way,
11
shape, or form. Id. at 1247. Furthermore, in Roscioli, the Court found that there
was no colorable basis under the rule to dismiss the plaintiffs case either
voluntarily or involuntarily. Id. at 1248. As a result, this Court found that the trial
courts sua sponte dismissal was not sustainable on any grounds. Here, the
grounds for dismissal is not even in issue, as Ultrasmith never challenged the trial
courts authority to dismiss its case as a sanction. Moreover, nowhere in Roscioli
does the court say that a trial court never has authority under Rule 1.420(b) to enter
an involuntary dismissal, sua sponte, as a sanction.
Ultrasmith also cites to Moritz v. Hoyt Enter., Inc., 604 So. 2d 807 (Fla.
1992) for the proposition that a prevailing party is one who succeeds on the
significant issues in a case. However, that case involved a determination of
prevailing party after the entry of final judgment as opposed to after a dismissal
under Rule 1.420. As exhaustively discussed in the Initial Brief, no such
determination is made when a case comes to an end through dismissal.
The purpose of permitting a party to recover costs for taking a voluntary
dismissal under the rule is to insure that the plaintiff bear the cost of using a
voluntary dismissal as a tactical tool against a particular defendant. McArthur
Dairy, Inc. v. Guillen, 470 So. 2d 747, 748 (Fla. 3d DCA 1985) (quoting DeLuca v.
Harriman, 402 So. 2d 1205, 1207 (Fla. 2d DCA 1981)). See also Gordon v.
Warren Heating & Air Conditioning, Inc., 340 So.2d 1234, 1235-36 (Fla. 4th DCA
12
1976) (opining that the rule has the obvious salutary effect of discouraging
repeated lawsuits of the same claim). It is not only illogical, but patently absurd,
for Ultrasmith to claim that a sua sponte involuntary dismissal as a sanction is not
likewise covered by this same principle. Carving out a sua sponte exception would
lead to the unjust result of rewarding a party for flagrantly ignoring an order of the
court. In the instant case, the parties engaged in extensive litigation, going so far
as to complete discovery. If this Court accepts Ultrasmiths proposition,
Ultrasmith would reap a financial windfall by virtue of blatantly disregarding the
trial courts authority to such an extent that the court was compelled into striking
their pleadings before Henn even had a chance to file a motion under the Rule. If
this is the case, then the rules should specify as much if only to alert the trial courts
of the possibility that such sanctions will have the opposite effect of their
punitive intent.
It should be kept in mind that a plaintiff whose case is dismissed as a
sanction still has a method for recouping their costs/fees if they bring a new cause
of action and eventually prevail on the merits. See Caufield v. Cantele, 837 So. 2d
371, 375 (Fla. 2002) (recognizing that where a party has previously paid costs after
a dismissal if that party subsequently prevails in the same action, then such a
party may recover at least some of the costs previously paid); Sholkoff v. Boca
Raton Community Hospital, Inc., 693 So. 2d 1114, 1115 (Fla. 4th DCA 1997) (the
13
cases hold that the dismissing party who pays costs after the voluntary dismissal
but who then prevails in the refiled action may recover from the losing party at
least some of the costs previously paid); McArthur Dairy, Inc., 470 So. 2d at 749
(finding that the Rule's abuse-prevention purpose is not disserved by permitting
an ultimately successful plaintiff to recoup the costs of the earlier dismissed action
which he has been compelled by the rule to pay). The non-sanctioned defendant,
on the other hand, is left without any remedy. Such a result is not only inapposite
to the abuse prevention underpinnings of Rule 1.420, but in contravention of the
mutuality of remedies under Florida Statutes section 57.105(7).
Based upon the foregoing, as well as the more extensive arguments
contained in Appellants Initial Brief, the trial court reversibly erred in failing to
award prevailing party attorneys fees to Appellant after the court entered a final
order involuntarily dismissing Ultrasmiths case as a sanction for disregarding the
courts orders to obtain and appear with counsel at two separate status conferences.
Conclusion
For the aforementioned reasons, this Court should reverse the trial courts
order denying Byron Henns Motion for Attorneys Fees and remand the matter for
an evidentiary hearing as to the issue of the amount to be awarded.

14
Respectfully submitted,

By:
DANIEL S. WEINGER, ESQ.
15
Certificate of Service
I HEREBY CERTIFY that a true and correct copy of the foregoing was
furnished via U.S. Mail to Les Stracher, Esq., Kurkin Forehand Brandes, LLP,
Attorneys for Appellee, 2900 Glades Circle, Suite 700, Weston, FL 33327-2271 on
this 22nd day of October, 2010.
Certificate of Type Size and Style
The undersigned counsel certifies that the type and style used in this brief is
14 point Times New Roman.
_________________________

CONRAD & SCHERER, LLP
Attorneys for Appellee
P. O. Box 14723
Fort Lauderdale, FL 33302
Phone: (954) 462-5500




By:__________________________
DANIEL S. WEINGER
Florida Bar No. 0172900