
    ARISTAR, INC., Appellant, v. James J. ARMSTRONG, Appellee.
    No. 86-56.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1986.
    Alley & Alley and John Edward Alley, Tampa, for appellant.
    Squire, Sanders & Dempsey and Joanne M. Rose, Miami, for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Finding that the trial court erred in denying Aristar, Inc.’s [Aristar] motion for attorney’s fees following Armstrong’s voluntary dismissal of his complaint against Ar-istar, we reverse, in part, the Order on Defendant’s Motion to Tax Costs and Attorney’s Fees. We remand the cause and direct the trial court first, to determine which party prevailed in the case at bar under the analogous principles enunciated in Simmons v. Schimmel, 476 So.2d 1342 (Fla. 3d DCA 1985), review denied, 486 So.2d 597 (Fla.1986), and then, if appropriate, to exercise its discretion by ruling on the merits of Aristar’s request for attorney’s fees pursuant to section 448.08, Florida Statutes (1981).

Affirmed in part; reversed and remanded for further proceedings.

NESBITT and BASKIN, JJ. concur.

FERGUSON, Judge

(specially concurring).

I am still firmly of the view that, for the purpose of attorney’s fees, a defendant does not become a prevailing party on the merits where a plaintiff voluntarily dismisses the complaint without prejudice. In such cases the court should, in the exercise of its discretion, award reasonable fees as costs where it would be inequitable not to do so. McKelvey v. Kismet, Inc., 430 So.2d 919 (Fla. 3d DCA) (Ferguson, J., dissenting), review denied, 440 So.2d 352 (Fla.1983). A rigid rule of law is not workable, as evidenced by the tumultuous inconsistency in the case law.

I agree to reverse and remand, not for the court to decide whether appellant is a prevailing party, but for the court to determine whether the circumstances are such that it would be unfair not to compensate Aristar for the cost of defending.  