Fla. Stat. § 57 - SHD Legal Group · Page 5 of 145 Fla. Stat. § 57.105 Civil Procedure: Remedies:...

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Fla. Stat. § 57.105 The Florida code and constitution are updated through all legislation signed and in effect as of 6/9/2017. LexisNexis® Florida Annotated Statutes > Title VI. Civil Practice and Procedure (Chs. 45-88) > Chapter 57. Court Costs. § 57.105. Attorney’s fee; sanctions for raising unsupported claims or defenses; exceptions; service of motions; damages for delay of litigation. (1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) Was not supported by the material facts necessary to establish the claim or defense; or (b) Would not be supported by the application of then-existing law to those material facts. (2) At any time in any civil proceeding or action in which the moving party proves by a preponderance of the evidence that any action taken by the opposing party, including, but not limited to, the filing of any pleading or part thereof, the assertion of or response to any discovery demand, the assertion of any claim or defense, or the response to any request by any other party, was taken primarily for the purpose of unreasonable delay, the court shall award damages to the moving party for its reasonable expenses incurred in obtaining the order, which may include attorney’s fees, and other loss resulting from the improper delay. (3) Notwithstanding subsections (1) and (2), monetary sanctions may not be awarded: (a) Under paragraph (1)(b) if the court determines that the claim or defense was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success. (b) Under paragraph (1)(a) or paragraph (1)(b) against the losing party’s attorney if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts. (c) Under paragraph (1)(b) against a represented party. (d) On the court’s initiative under subsections (1) and (2) unless sanctions are awarded before a voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned. (4) A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. (5) In administrative proceedings under chapter 120, an administrative law judge shall award a reasonable attorney’s fee and damages to be paid to the prevailing party in equal amounts by the losing party and a losing party’s attorney or qualified representative in the same manner and upon the same basis as provided in subsections (1)-(4). Such award shall be a final order subject to judicial review pursuant to s. 120.68. If the losing party is an agency as defined in s. 120.52(1), the award to the prevailing party shall be against and paid by the agency. A voluntary dismissal by a nonprevailing party does not divest the administrative law judge of jurisdiction to make the award described in this subsection. (6) The provisions of this section are supplemental to other sanctions or remedies available under law or under court rules.

Transcript of Fla. Stat. § 57 - SHD Legal Group · Page 5 of 145 Fla. Stat. § 57.105 Civil Procedure: Remedies:...

Fla. Stat. § 57.105

The Florida code and constitution are updated through all legislation signed and in effect as of 6/9/2017.

LexisNexis® Florida Annotated Statutes > Title VI. Civil Practice and Procedure (Chs. 45-88) > Chapter 57. Court Costs.

§ 57.105. Attorney’s fee; sanctions for raising unsupported claims or defenses; exceptions; service of motions; damages for delay of litigation.

(1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:

(a) Was not supported by the material facts necessary to establish the claim or defense; or

(b) Would not be supported by the application of then-existing law to those material facts.

(2) At any time in any civil proceeding or action in which the moving party proves by a preponderance of the evidence that any action taken by the opposing party, including, but not limited to, the filing of any pleading or part thereof, the assertion of or response to any discovery demand, the assertion of any claim or defense, or the response to any request by any other party, was taken primarily for the purpose of unreasonable delay, the court shall award damages to the moving party for its reasonable expenses incurred in obtaining the order, which may include attorney’s fees, and other loss resulting from the improper delay.

(3) Notwithstanding subsections (1) and (2), monetary sanctions may not be awarded:

(a) Under paragraph (1)(b) if the court determines that the claim or defense was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success.

(b) Under paragraph (1)(a) or paragraph (1)(b) against the losing party’s attorney if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts.

(c) Under paragraph (1)(b) against a represented party.

(d) On the court’s initiative under subsections (1) and (2) unless sanctions are awarded before a voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.

(4) A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

(5) In administrative proceedings under chapter 120, an administrative law judge shall award a reasonable attorney’s fee and damages to be paid to the prevailing party in equal amounts by the losing party and a losing party’s attorney or qualified representative in the same manner and upon the same basis as provided in subsections (1)-(4). Such award shall be a final order subject to judicial review pursuant to s. 120.68. If the losing party is an agency as defined in s. 120.52(1), the award to the prevailing party shall be against and paid by the agency. A voluntary dismissal by a nonprevailing party does not divest the administrative law judge of jurisdiction to make the award described in this subsection.

(6) The provisions of this section are supplemental to other sanctions or remedies available under law or under court rules.

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Fla. Stat. § 57.105

(7) If a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract. This subsection applies to any contract entered into on or after October 1, 1988.

History

S. 1, ch. 78-275; s. 61, ch. 86-160; ss. 1, 2, ch. 88-160; s. 1, ch. 90-300; s. 316, ch. 95-147; s. 4, ch. 99-225; s. 1, ch. 2002-77; s. 9, ch. 2003-94; s. 1, ch. 2010-129, eff. July 1, 2010.

Annotations

Notes

Amendments.

The 2003 amendment by s. 9, ch. 2003-94, effective June 4, 2003, added (5), and redesignated (5) and (6) as (6) and (7).

The 2010 amendment added “exceptions” in the section heading; added “including prejudgment interest” in the introductory language of (1); deleted the former last paragraph of (1), which read: “However, the losing party’s attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts. If the court awards attorney’s fees to a claimant pursuant to this subsection, the court shall also award prejudgment interest”; deleted former (2); redesignated former (3) as (2); and added (3).

LexisNexis ® Notes

Case Notes

Administrative Law: Judicial Review: Reviewability: Final Order Requirement

Administrative Law: Judicial Review: Reviewability: Preclusion

Antitrust & Trade Law: Private Actions: Costs & Attorney Fees: General Overview

Antitrust & Trade Law: Private Actions: Racketeer Influenced & Corrupt Organizations: General Overview

Banking Law: Consumer Protection: Fair Debt Collection: General Overview

Bankruptcy Law: Case Administration: Examiners, Officers & Trustees: Duties & Functions: Capacities & Roles

Bankruptcy Law: Case Administration: Professional Services: Compensation: General Overview

Bankruptcy Law: Case Administration: Professional Services: Compensation: Debtor's Counsel

Bankruptcy Law: Claims: Types: Secured Claims & Liens: Determinations

Bankruptcy Law: Discharge & Dischargeability: Nondischarge of Individual Debts: General Overview

Bankruptcy Law: Discharge & Dischargeability: Nondischarge of Individual Debts: Embezzlement & Fraud

Bankruptcy Law: Discharge & Dischargeability: Nondischarge of Individual Debts: Malicious & Reckless Behavior

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Fla. Stat. § 57.105

Bankruptcy Law: Estate Property: Noncustodial Turnovers

Bankruptcy Law: Exemptions: Bankruptcy Code

Bankruptcy Law: Practice & Proceedings: General Overview

Bankruptcy Law: Practice & Proceedings: Adversary Proceedings: General Overview

Bankruptcy Law: Practice & Proceedings: Adversary Proceedings: Judgments & Remedies

Business & Corporate Law: Corporations: Dissolution & Receivership: Termination & Winding Up: General Overview

Business & Corporate Law: Corporations: Shareholders: Disregard of Corporate Entity: General Overview

Civil Procedure: Justiciability: General Overview

Civil Procedure: Justiciability: Standing: General Overview

Civil Procedure: Jurisdiction: General Overview

Civil Procedure: Jurisdiction: Personal Jurisdiction & In Rem Actions: In Personam Actions: Challenges

Civil Procedure: Pleading & Practice: Defenses, Demurrers & Objections: Failures to State Claims

Civil Procedure: Pleading & Practice: Pleadings: General Overview

Civil Procedure: Pleading & Practice: Pleadings: Amended Pleadings: General Overview

Civil Procedure: Pleading & Practice: Pleadings: Answers

Civil Procedure: Pleading & Practice: Pleadings: Heightened Pleading Requirements: General Overview

Civil Procedure: Pleading & Practice: Pleadings: Rule Application & Interpretation

Civil Procedure: Pleading & Practice: Service of Process: General Overview

Civil Procedure: Pleading & Practice: Service of Process: Methods: Electronic Means

Civil Procedure: Pleading & Practice: Service of Process: Proof: General Overview

Civil Procedure: Parties: Joinder: General Overview

Civil Procedure: Parties: Joinder: Necessary Parties

Civil Procedure: Parties: Joinder: Permissive Joinder

Civil Procedure: Judicial Officers: Judges: Discretion

Civil Procedure: Judicial Officers: Masters: General Overview

Civil Procedure: Discovery: Disclosures: Sanctions

Civil Procedure: Discovery: Methods: General Overview

Civil Procedure: Discovery: Misconduct

Civil Procedure: Dismissals: Involuntary Dismissals: General Overview

Civil Procedure: Dismissals: Involuntary Dismissals: Failures to Comply

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Civil Procedure: Dismissals: Voluntary Dismissals: General Overview

Civil Procedure: Pretrial Judgments: Default: Relief From Default

Civil Procedure: Summary Judgment: General Overview

Civil Procedure: Summary Judgment: Standards: General Overview

Civil Procedure: Alternative Dispute Resolution: Mandatory ADR

Civil Procedure: Alternative Dispute Resolution: Validity of ADR Methods

Civil Procedure: Settlements: Releases From Liability: General Overview

Civil Procedure: Settlements: Settlement Agreements: Effects

Civil Procedure: Settlements: Settlement Agreements: Validity

Civil Procedure: Trials: Bench Trials

Civil Procedure: Trials: Judgment as Matter of Law: General Overview

Civil Procedure: Judgments: Entry of Judgments: Enforcement & Execution: Garnishments

Civil Procedure: Judgments: Preclusion & Effect of Judgments: Estoppel: Collateral Estoppel

Civil Procedure: Judgments: Preclusion & Effect of Judgments: Estoppel: Judicial Estoppel

Civil Procedure: Judgments: Preclusion & Effect of Judgments: Law of the Case

Civil Procedure: Judgments: Relief From Judgment: General Overview

Civil Procedure: Judgments: Relief From Judgment: Additurs & Remittiturs: General Overview

Civil Procedure: Judgments: Relief From Judgment: Motions for New Trials

Civil Procedure: Judgments: Relief From Judgment: Motions to Alter & Amend

Civil Procedure: Judgments: Relief From Judgment: Newly Discovered Evidence

Civil Procedure: Remedies: Costs & Attorney Fees: General Overview

Civil Procedure: Remedies: Costs & Attorney Fees: Attorney Expenses & Fees

Civil Procedure: Remedies: Costs & Attorney Fees: Attorney Expenses & Fees: General Overview

Civil Procedure: Remedies: Costs & Attorney Fees: Attorney Expenses & Fees: American Rule

Civil Procedure: Remedies: Costs & Attorney Fees: Attorney Expenses & Fees: Bad Faith Awards

Civil Procedure: Remedies: Costs & Attorney Fees: Attorney Expenses & Fees: English Rule

Civil Procedure: Remedies: Costs & Attorney Fees: Attorney Expenses & Fees: Reasonable Fees

Civil Procedure: Remedies: Costs & Attorney Fees: Attorney Expenses & Fees: Statutory Awards

Civil Procedure: Remedies: Costs & Attorney Fees: Costs

Civil Procedure: Remedies: Costs & Attorney Fees: Costs: General Overview

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Civil Procedure: Remedies: Costs & Attorney Fees: Costs: Depositions & Transcripts

Civil Procedure: Remedies: Injunctions: General Overview

Civil Procedure: Remedies: Injunctions: Contempt

Civil Procedure: Remedies: Judgment Interest

Civil Procedure: Remedies: Judgment Interest: General Overview

Civil Procedure: Remedies: Judgment Interest: Prejudgment Interest

Civil Procedure: Remedies: Lis Pendens: General Overview

Civil Procedure: Sanctions: General Overview

Civil Procedure: Sanctions: Baseless Filings

Civil Procedure: Sanctions: Baseless Filings: General Overview

Civil Procedure: Sanctions: Baseless Filings: Bad Faith Motions

Civil Procedure: Sanctions: Baseless Filings: Certification Requirements

Civil Procedure: Sanctions: Baseless Filings: Frivolous Lawsuits

Civil Procedure: Sanctions: Baseless Filings: Vexatious Litigants

Civil Procedure: Sanctions: Misconduct & Unethical Behavior: General Overview

Civil Procedure: Appeals: Appellate Jurisdiction: Final Judgment Rule

Civil Procedure: Appeals: Appellate Jurisdiction: Lower Court Jurisdiction

Civil Procedure: Appeals: Appellate Jurisdiction: State Court Review

Civil Procedure: Appeals: Costs & Attorney Fees

Civil Procedure: Appeals: Frivolous Appeals

Civil Procedure: Appeals: Rehearings

Civil Procedure: Appeals: Reviewability: General Overview

Civil Procedure: Appeals: Reviewability: Notice of Appeal

Civil Procedure: Appeals: Reviewability: Preservation for Review

Civil Procedure: Appeals: Standards of Review: Abuse of Discretion

Civil Rights Law: Practice & Procedure: Costs & Attorney Fees: Statutory Attorney Fee Awards

Constitutional Law: Separation of Powers

Constitutional Law: Bill of Rights: Fundamental Freedoms: Freedom of Speech: Defamation: General Overview

Contracts Law: Breach: Causes of Action: General Overview

Contracts Law: Contract Conditions & Provisions

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Contracts Law: Contract Conditions & Provisions: General Overview

Contracts Law: Contract Interpretation: General Overview

Contracts Law: Debtor & Creditor Relations

Contracts Law: Defenses: Public Policy Violations

Contracts Law: Remedies

Contracts Law: Remedies: General Overview

Contracts Law: Remedies: Compensatory Damages: General Overview

Contracts Law: Secured Transactions: Perfection & Priority: Priority: Liens: Attorneys' Liens

Contracts Law: Third Parties: Beneficiaries: General Overview

Contracts Law: Types of Contracts: Bilateral Contracts

Contracts Law: Types of Contracts: Guaranty Contracts

Contracts Law: Types of Contracts: Unilateral Contracts: General Overview

Criminal Law & Procedure: Criminal Offenses: Racketeering: Racketeer Influenced & Corrupt Organizations: General Overview

Criminal Law & Procedure: Discovery & Inspection: Discovery Misconduct: General Overview

Estate, Gift & Trust Law: Estate Administration: Claims Against Estates: General Overview

Estate, Gift & Trust Law: Probate: Procedures in Probate: General Overview

Evidence: Procedural Considerations: Limited Admissibility

Family Law: Child Custody: Awards: Standards: Best Interests of Child

Family Law: Child Custody: Procedures

Family Law: Child Support: Obligations: Enforcement: General Overview

Family Law: Child Support: Obligations: Enforcement: Interstate Enforcement: Uniform Interstate Family Support Act

Family Law: Child Support: Procedures

Family Law: Delinquency & Dependency: Dependency Proceedings

Family Law: Family Protection & Welfare: Children: General Overview

Family Law: Family Protection & Welfare: Cohabitants & Spouses

Family Law: Marital Duties & Rights: Property Rights: Premarital Agreements: Enforcement

Family Law: Marital Termination & Spousal Support: General Overview

Family Law: Marital Termination & Spousal Support: Costs & Attorney Fees

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Family Law: Marital Termination & Spousal Support: Dissolution & Divorce: Property Distribution: Characterization: Nonmarital Property

Family Law: Paternity & Surrogacy: General Overview

Governments: Courts: Judges

Governments: Legislation: Effect & Operation: Operability

Governments: Legislation: Effect & Operation: Prospective Operation

Governments: Legislation: Effect & Operation: Retrospective Operation

Governments: Legislation: Interpretation

Governments: Legislation: Statutes of Limitations: Extension & Revival

Governments: Legislation: Statutes of Limitations: Time Limitations

Governments: State & Territorial Governments: Claims By & Against

Immigration Law: Deportation & Removal: General Overview

Insurance Law: Claims & Contracts: Cancellation & Nonrenewal: Notice Requirements

Insurance Law: Claims & Contracts: Costs & Attorney Fees: General Overview

Insurance Law: General Liability Insurance: Obligations: Defense

Insurance Law: General Liability Insurance: Persons Insured: General Overview

Labor & Employment Law: Discrimination: Harassment: Sexual Harassment: Remedies: Costs & Attorney Fees

Labor & Employment Law: Employment Relationships: At-Will Employment: General Overview

Labor & Employment Law: Employment Relationships: Employment Contracts: Conditions & Terms: Trade Secrets & Unfair Competition: Noncompetition & Nondisclosure Agreements

Labor & Employment Law: Wage & Hour Laws: Coverage & Definitions: Employers

Labor & Employment Law: Wage & Hour Laws: Remedies: Costs & Attorney Fees

Labor & Employment Law: Wrongful Termination: Whistleblower Protection Act: General Overview

Legal Ethics: Client Relations: Attorney Fees: General Overview

Legal Ethics: Client Relations: Conflicts of Interest

Legal Ethics: Judicial Conduct

Legal Ethics: Professional Conduct: Frivolous Claims

Legal Ethics: Professional Conduct: Tribunals

Legal Ethics: Sanctions: Disciplinary Proceedings: Investigations

Real Property Law: Adjoining Landowners: Easements

Real Property Law: Brokers: Brokerage Agreements

Page 8 of 145

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Real Property Law: Common Interest Communities: Condominiums: Condominium Associations

Real Property Law: Common Interest Communities: Homeowners Associations

Real Property Law: Estates: Concurrent Ownership: General Overview

Real Property Law: Financing: Mortgages & Other Security Instruments

Real Property Law: Financing: Mortgages & Other Security Instruments: Foreclosures

Real Property Law: Financing: Mortgages & Other Security Instruments: Foreclosures: General Overview

Real Property Law: Homestead Exemptions

Real Property Law: Landlord & Tenant: Landlord's Remedies & Rights: Eviction Actions: General Overview

Real Property Law: Landlord & Tenant: Lease Agreements: Damages: General Overview

Real Property Law: Landlord & Tenant: Tenant's Remedies & Rights: General Overview

Real Property Law: Limited Use Rights: Easements: General Overview

Real Property Law: Nonmortgage Liens: Mechanics' Liens

Real Property Law: Purchase & Sale: Contracts of Sale: General Overview

Real Property Law: Title Quality: Adverse Claim Actions: General Overview

Real Property Law: Title Quality: Marketable Title: Abstracts

Securities Law: Liability: RICO Actions: General Overview

Torts: Business Torts: Fraud & Misrepresentation: General Overview

Torts: Damages: Costs & Attorney Fees: General Overview

Torts: Intentional Torts: Conversion

Torts: Intentional Torts: Defamation: Defenses: Privileges: Absolute Privileges

Torts: Intentional Torts: Defamation: Public Figures: Limited Purpose Public Figures

Torts: Intentional Torts: Intentional Infliction of Emotional Distress: General Overview

Torts: Intentional Torts: Malicious Prosecution: General Overview

Torts: Intentional Torts: Malicious Prosecution: Elements: Malice

Torts: Malpractice & Professional Liability: Healthcare Providers

Torts: Negligence: General Overview

Trademark Law: Special Marks: Service Marks: General Overview

Workers' Compensation & SSDI: Administrative Proceedings: Claims: Time Limitations: General Overview

Workers' Compensation & SSDI: Administrative Proceedings: Costs & Attorney Fees

Administrative Law: Judicial Review: Reviewability: Final Order Requirement

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1. By the explicit terms of the statute, a request for an award of attorney’s fees made pursuant to Fla. Stat. § 57.105(5) was to be considered by the administrative law judge; a decision by the judge on such a request was a final order subject to judicial review. Jain v. Fla. Agric. & Mech. Univ., 914 So. 2d 998, 2005 Fla. App. LEXIS 16636 (Fla. 1st DCA 2005).

Administrative Law: Judicial Review: Reviewability: Preclusion

2. In an action against a contractor to levy on a performance bond brought by a subcontractor, where both parties agreed to submit the issue of attorney fees to arbitration along with the substantive issues on damages, a trial court committed reversible error by awarding attorney fees to the subcontractor as the prevailing party under Fla. Stat. § 57.105, where the arbitrator had only awarded the contractor a credit against the award, but had not made an express finding that the subcontractor was the prevailing party. Robert Gay Constr. Co. v. CECO Bldg. Sys., 680 So. 2d 1124, 1996 Fla. App. LEXIS 10766 (Fla. 1st DCA 1996).

Antitrust & Trade Law: Private Actions: Costs & Attorney Fees: General Overview

3. Award of attorney’s fees to a corporation in a retailer’s antitrust claim was proper because the evidence of any conspiracy was speculative as to all defendants and particularly lacking as to the corporation; further, contrary to the retailer’s claim, the 21-day safe harbor provision of Fla. Stat. § 57.105(4) did not apply retroactively to this matter. Hampton v. Cale of Fort Meyers, Inc., 964 So. 2d 822, 2007 Fla. App. LEXIS 14616 (Fla. 4th DCA 2007).

Antitrust & Trade Law: Private Actions: Racketeer Influenced & Corrupt Organizations: General Overview

4. Under Fla. Stat. § 772.104, a defendant is entitled to reasonable attorney’s fees upon a finding that the claimant raised a civil RICO claim that was without substantial factual or legal support; this standard is less strict than that contained in Fla. Stat. § 57.105(1), which requires a complete absence of a justiciable issue of either law or fact. Hartford Ins. Co. v. Miller, 681 So. 2d 301, 1996 Fla. App. LEXIS 10293 (Fla. 3rd DCA 1996).

Banking Law: Consumer Protection: Fair Debt Collection: General Overview

5. Award of attorney’s fees to a lawyer and a law firm pursuant to Fla. Stat. § 57.105 was error because dismissal of a counterclaim alleging a Florida Consumer Collection Protection Act violation was improper; there was no suggestion in Fla. Stat. § 559.55(1) that a debt or consumer debt arose only after there had been an extension of credit. Under the applicable statute, no extension of credit was required. Morgan v. Wilkins, 74 So. 3d 179, 2011 Fla. App. LEXIS 18125 (Fla. 1st DCA 2011).

Bankruptcy Law: Case Administration: Examiners, Officers & Trustees: Duties & Functions: Capacities & Roles

6. Barton doctrine did not require defendants in a state court action instituted by a Chapter 7 trustee under 11 U.S.C.S. § 323 to obtain leave of the bankruptcy court before seeking monetary sanctions against the trustee and her special counsel under Fla. Stat. § 57.105. The court would not usurp the state court’s jurisdiction, interfere with its ability to control its own proceedings, or defeat the clear intent of the Florida legislature where federal policy concerns were not significantly present. In re Ridley Owens, Inc., 391 B.R. 867, 2008 Bankr. LEXIS 1978 (Bankr. N.D. Fla. 2008).

Bankruptcy Law: Case Administration: Professional Services: Compensation: General Overview

7. Bankruptcy court found that it was not allowed to award attorney fees under Fla. Stat. § 57.105 to a Committee of Unsecured Creditors that prevailed on its claims that liens a Chapter 11 debtor’s subsidiaries gave to a bank to secure a loan were avoidable under 11 U.S.C.S. §§ 544(b) and 548 and comparable state law provisions, because the Florida Supreme Court had ruled that the right to recover attorney fees under § 57.105 was a substantive right. However, the court had the power

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under the Bankruptcy Code to award attorney fees and costs to the committee. Official Comm. of Unsecured Creditors of Tousa, Inc. v. Citicorp N. Am., Inc., 422 B.R. 783, 2009 Bankr. LEXIS 3311 (Bankr. S.D. Fla. 2009).

Bankruptcy Law: Case Administration: Professional Services: Compensation: Debtor's Counsel

8. Florida's reciprocal attorney's fee provision, in conjunction with a mortgage agreement, provided a sufficient basis for awarding fees to bankruptcy debtors who prevailed on a creditor's motion to dismiss the bankruptcy petition; although the creditor argued that the mortgage had merged into a judgment of foreclosure, the creditor opened the door to a fee award by requesting fees in connection with its motion to dismiss. Centennial Bank v. Nabavi (In re Nabavi), 514 B.R. 895, 2014 U.S. Dist. LEXIS 111217 (M.D. Fla. 2014).

9. Chapter 11 debtor who had objected to claims filed by a creditor and the creditor had agreed on the eve of trial over some of the objections not to pursue the claims could not recover attorney’s fees and costs based on provisions in the disputed mortgage agreement because the debtor had not specifically pled or put the creditor on notice of the debtor’s intent to seek attorney’s fees, costs, and sanctions and had in fact not filed to recover such fees until the claim proceeding was settled. In re Full Gospel Assembly, 371 B.R. 559, 2007 Bankr. LEXIS 3300 (Bankr. S.D. Fla. 2007).

10. Debtor’s motion for reconsideration under Fed. R. Civ. P. 59(e) and Fed. R. Bankr. P. 9023 was granted because in its earlier decision the court had mistakenly concluded that the court had discretion to deny attorney’s fees under Fla. Stat. § 57.105 when in fact if there were a contractual fee provision, the court was without discretion to decline to enforce. In re Full Gospel Assembly, 371 B.R. 559, 2007 Bankr. LEXIS 3300 (Bankr. S.D. Fla. 2007).

Bankruptcy Law: Claims: Types: Secured Claims & Liens: Determinations

11. Mortgage company that held second mortgage on Chapter 13 debtor's home failed to show that plan debtor proposed could not be confirmed because it was filed in bad faith, was not feasible, and proposed to pay first mortgage debtor owed outside court's MMM program, and debtor was allowed to treat mortgage company's claim as unsecured because she owed more on her first mortgage than her home was worth; however, mortgage company's motion to value debtor's home was not type of action which allowed debtor to recover attorney's fees under Fla. Stat. § 57.105. In re Olivares, 2016 Bankr. LEXIS 4003 (Bankr. S.D. Fla. Nov. 16, 2016).

Bankruptcy Law: Discharge & Dischargeability: Nondischarge of Individual Debts: General Overview

12. Where there is a contractual basis for an award of legal fees, such fees may be awarded even if the only matter presented in the U.S. Bankruptcy Court for the Southern District of Florida is whether a previously liquidated debt should be excepted from discharge. Allen v. Entrust Admin. Servs. (In re Allen), 2012 Bankr. LEXIS 2444 (Bankr. S.D. Fla. May 30, 2012).

13. Dischargeability determination cause of action could not possibly have been included in the state court action as debtor’s bankruptcy case had yet to be filed. Additionally (i) the Complaint included a broad request for damages that would encompass additional legal fees, (ii) it was, in part, an attempt to liquidate an additional debt under the promissory notes, (iii) because such cause of action was not and could not have been included in the state court action, it was not precluded under the doctrine of merger, and (iv) at the time the Complaint was filed in the bankruptcy court, the creditors had a continuing ability to pursue such additional damages under the promissory notes. This was sufficient to support debtor’s reciprocal right under Fla. Stat. § 57.105(7). Allen v. Entrust Admin. Servs. (In re Allen), 2012 Bankr. LEXIS 2444 (Bankr. S.D. Fla. May 30, 2012).

14. Where creditors failed to prove that loans and advances were nondischargeable under 11 U.S.C.S. § 523(a)(2)(A) or (a)(4), a Chapter 13 debtor was not entitled to attorney’s fees and costs under Fla. Stat. § 772.11 because the creditors did not plead or

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prosecute a theft, robbery, or exploitation cause of action against her, and the debtor was not entitled to attorney’s fees and costs under 11 U.S.C.S. § 523(d) because the debts owed by the debtor to the creditors were business debts, not consumer debts. However, the debtor was entitled to reasonable attorney’s fees and costs under Fla. Stat. § 57.105(7) because a nominee agreement between the parties contained a provision allowing attorney’s fees, and the adversary proceeding was, in part, an action to enforce the terms of that agreement. Kaplus v. Lorenzo (In re Lorenzo), 434 B.R. 695, 2010 Bankr. LEXIS 2260 (Bankr. M.D. Fla. 2010).

Bankruptcy Law: Discharge & Dischargeability: Nondischarge of Individual Debts: Embezzlement & Fraud

15. Where a lender failed to establish any element to support nondischargeability of bankruptcy debtors’ loan debt to the lender based on alleged misrepresentations, the debtors were entitled to an award of attorney fees under Fla. Stat. § 57.105(7) since the loan documents provided that the lender could recover fees and costs in any action to enforce the loan agreement. CIT Small Bus. Lending Corp. v. Diaz (In re Diaz), 402 B.R. 407, 2008 Bankr. LEXIS 3808 (Bankr. M.D. Fla. 2008).

Bankruptcy Law: Discharge & Dischargeability: Nondischarge of Individual Debts: Malicious & Reckless Behavior

16. State court judgment was not entitled to collateral estoppel effect in a nondischargeability proceeding against a Chapter 7 debtor, as the judgment did not clarify the basis for the damages awarded or which damages pertained to which allegation. With respect to an award of attorney's fees, the judgment referenced two Florida statutes, one of which awarded fees and costs to a prevailing party in a civil theft action and one of which awarded fees and costs as a sanction for asserting an unsupported claim or defense, but there was no explanation as to what portion, if any, of the fees were awarded in connection with civil theft. Flemm v. Trexler (In re Trexler), 2015 Bankr. LEXIS 1150 (Mar. 30, 2015).

17. Father and two of his children were entitled to summary judgment on their claim that a debt they were owed by a debtor, a third child who declared Chapter 7 bankruptcy, was nondischargeable under 11 U.S.C.S. § 523(a)(6) because it resulted from willful and malicious conduct. The debt was created when a Florida court awarded the father and the debtor’s siblings attorney fees and costs, pursuant to Fla. Stat. § 57.105, after it dismissed a lawsuit the debtor filed against his father, seeking a judgment that $ 2.4 million his father was awarded in an action he filed against his former business partners belonged to a trust the father created in 1977; the debtor was an attorney and a co-trustee for the trust until the trust was revoked in 1991, and he knew his father and mother revoked the trust ten years before he filed his action in state court. Kutchins v. Kutchins (In re Kutchins), 2008 Bankr. LEXIS 4362 (Bankr. M.D. Fla. Dec. 5, 2008).

Bankruptcy Law: Estate Property: Noncustodial Turnovers

18. Chapter 11 debtor was entitled to an order pursuant to 11 U.S.C.S. § 542(a) directing his ex-wife to turn over certain rings and a Note because such property was property of the estate. However, the debtor was not entitled to attorney’s fees and costs under Fla. Stat. § 57.105 or the court’s equitable powers under 11 U.S.C.S. § 105 because the Florida provision was not applicable and when the court lacks a statutory basis to award fees and costs, it cannot rely on its equitable powers to do so. Inman v. Hearn (In re Inman), 2012 Bankr. LEXIS 2859 (Bankr. S.D. Fla. June 22, 2012).

Bankruptcy Law: Exemptions: Bankruptcy Code

19. Bankruptcy court found it appropriate to award attorney’s fees, pursuant to Fla. Stat. § 57.105(1)(a), and costs for failure on the part of the debtor’s attorney to withdraw a motion to avoid lien where the debtor had died while the motion was pending, the attorney knew that to proceed with the motion, the debtor’s successors needed to open a probate estate on behalf of the debtor, and no estate had been opened. In re Wille, 333 B.R. 891, 2005 Bankr. LEXIS 2197 (Bankr. M.D. Fla. 2005).

Bankruptcy Law: Practice & Proceedings: General Overview

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20. In an adversary proceeding arising from a contract to purchase a hotel, attorney’s fees were not awarded to purchasers under Fla. Stat. § 57.105 because that section only applied in cases brought in Florida state courts. Univ. Ctr. Hotel, Inc. v. P.C.D. Constr., Inc. (In re Univ. Ctr. Hotel, Inc.), 323 B.R. 306, 2005 Bankr. LEXIS 550 (Bankr. N.D. Fla. 2005).

Bankruptcy Law: Practice & Proceedings: Adversary Proceedings: General Overview

21. Where the debtor sought an award of attorney’s fees, costs, and punitive damages pursuant to Fed. R. Bankr. P. 9011 and Fla. Stat. § 57.105, based on his contention that a complaint challenging a pre-petition transfer of property to debtor’s mother-in-law was filed by creditor for an improper purpose and without adequate pre-filing investigation, the complaint was not filed for an improper purpose, based on the amount at issue and the information obtained by the creditor. Citrus & Chem. Bank v. Floyd (In re Floyd), 322 B.R. 205, 2005 Bankr. LEXIS 407 (Bankr. M.D. Fla. 2005).

22. Debtor, a prevailing party in a bankruptcy dischargeability proceeding, was allowed to recover attorney fees through the enforcement of a loan contract that provided for such recovery by the prevailing party under Fla. Stat. § 57.105(2). Citizens First Nat'l Bank v. Hunter (In re Hunter), 243 B.R. 824, 35 Bankr. Ct. Dec. (LRP) 8, 1999 Bankr. LEXIS 1228 (Bankr. M.D. Fla. 1999).

Bankruptcy Law: Practice & Proceedings: Adversary Proceedings: Judgments & Remedies

23. Chapter 11 debtor was entitled to an order pursuant to 11 U.S.C.S. § 542(a) directing his ex-wife to turn over certain rings and a Note because such property was property of the estate. However, the debtor was not entitled to attorney’s fees and costs under Fla. Stat. § 57.105 or the court’s equitable powers under 11 U.S.C.S. § 105 because the Florida provision was not applicable and when the court lacks a statutory basis to award fees and costs, it cannot rely on its equitable powers to do so. Inman v. Hearn (In re Inman), 2012 Bankr. LEXIS 2859 (Bankr. S.D. Fla. June 22, 2012).

24. Entitlement to an attorney fee award under Fla. Stat. § 57.105(7) for enforcement of a note did not preclude an award to a bankruptcy debtor in a fraudulent transfer action, since entitlement to an award was required to be reciprocal. Jerk Mach., Inc. v. Bank of Am., N.A. (In re Jerk Mach., Inc.), 422 B.R. 327, 52 Bankr. Ct. Dec. (LRP) 198, 2010 Bankr. LEXIS 10 (Bankr. S.D. Fla. 2010).

Business & Corporate Law: Corporations: Dissolution & Receivership: Termination & Winding Up: General Overview

25. In an action for dissolution of a corporation, where a trial court referred the matter of valuation of shares to a special master who had overseen discovery without both parties’ consent and despite repeated objections by counsel for appellant, in contravention of Fla. R. Civ. P. 1.490(c), such referral occurred prior to the effective date of a revision to the sanctions statute, Fla. Stat. § 57.105. Sanctions were denied because the former version of Fla. Stat. § 57.105 applied, which required a finding that the lawsuit had been frivolous from its inception, and nothing warranted such a finding. Rosenberg v. Morales, 804 So. 2d 622, 2002 Fla. App. LEXIS 1158 (Fla. 3rd DCA 2002).

Business & Corporate Law: Corporations: Shareholders: Disregard of Corporate Entity: General Overview

26. In a lawsuit alleging claims of fraudulent conveyance, piercing the corporate veil, and continuation of business/alter ego against the sole shareholder of a corporation that employed both plaintiff employees, because a proposal for settlement lacked the specificity required, the shareholder’s request for attorney’s fees was denied. Carnes v. Fender, 936 So. 2d 11, 2006 Fla. App. LEXIS 7717 (Fla. 4th DCA 2006).

Civil Procedure: Justiciability: General Overview

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27. To properly award attorney fees pursuant to Fla. Stat. § 57.105, it is necessary to find that the entire action, not just a portion of it, is devoid of merit both as to law and fact. Glover v. School Bd., 462 So. 2d 116, 1985 Fla. App. LEXIS 11931 (Fla. 2nd DCA 1985).

Civil Procedure: Justiciability: Standing: General Overview

28. Because a decedent’s son raised a justiciable issue of either fact or law in seeking to recover funds owed to the estate, satisfying the requirement of standing, the trial court erred in awarding attorney’s fees under Fla. Stat. § 57.105; moreover, the son’s initial failure to choose the correct forum could not serve as a basis for an award of attorney’s fees. McMonigle v. McMonigle, 932 So. 2d 369, 2006 Fla. App. LEXIS 4382 (Fla. 2nd DCA 2006).

Civil Procedure: Jurisdiction: General Overview

29. Absent a reservation of jurisdiction, the trial court erred in granting a motion for attorneys’ fees in accordance with Fla. Stat. § 57.105 during the pendency of an appeal questioning the validity of the dismissal of an amended complaint. Conley v. Shutts & Bowen, P.A., 622 So. 2d 559, 1993 Fla. App. LEXIS 7981 (Fla. 3rd DCA 1993).

Civil Procedure: Jurisdiction: Personal Jurisdiction & In Rem Actions: In Personam Actions: Challenges

30. Dismissal of action for lack of personal jurisdiction was affirmed because the motion for fees was defensive and did not seek affirmative relief, the defense of lack of personal jurisdiction was not waived. Two Worlds United v. Zylstra, 46 So. 3d 1175, 2010 Fla. App. LEXIS 16738 (Fla. 2nd DCA 2010).

Civil Procedure: Pleading & Practice: Defenses, Demurrers & Objections: Failures to State Claims

31. Trial court erred in awarding attorney’s fees to a transaction broker under Fla. Stat. § 57.105 after dismissing the clients’ second amended complaint for the failure to state a cause of action; the clients may have had a breach of contract claim inasmuch as the broker’s obligations to the client under a Brokerage Relationship Disclosure were not merely gratuitous, and the clients may have had a negligence claim as the broker’s duties to the client as a transaction broker not only existed by virtue of the written agreement, but were codified in Fla. Stat. § 475.278. Read v. Taylor, 832 So. 2d 219, 2002 Fla. App. LEXIS 17753 (Fla. 4th DCA 2002).

Civil Procedure: Pleading & Practice: Pleadings: General Overview

32. Party seeking attorney fees pursuant to Fla. Stat. § 57.105(5) must specifically plead entitlement to such fees; complaints, answers, and counterclaims are pleadings under Fla. R. Civ. P. 1.100(a), and a motion to dismiss is not a pleading. Precision Tune Auto Care, Inc. v. Radcliffe, 815 So. 2d 708, 2002 Fla. App. LEXIS 5228 (Fla. 4th DCA 2002).

Civil Procedure: Pleading & Practice: Pleadings: Amended Pleadings: General Overview

33. Trial court was without discretion to refuse to consider plaintiff’s amended complaint on the morning that defendant’s hearing on a motion to dismiss was scheduled because defendant’s motion to dismiss was not a responsive pleading or a pleading. Forum v. Boca Burger, Inc., 788 So. 2d 1055, 2001 Fla. App. LEXIS 6945 (Fla. 4th DCA 2001).

Civil Procedure: Pleading & Practice: Pleadings: Answers

34. As plaintiff was placed on notice by the pretrial statement that defendants, pursuant to the parties' contracts, sought attorney fees incurred in defending plaintiff's injunction counts, by failing to object, plaintiff waived their failure to request such fees in

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their answer; however, they were not entitled to fees for work related to the other counts of plaintiff's complaint. Shirley's Pers. Care Servs. of Okeechobee, Inc. v. Boswell, 165 So. 3d 824, 2015 Fla. App. LEXIS 8470 (Fla. 4th DCA 2015).

Civil Procedure: Pleading & Practice: Pleadings: Heightened Pleading Requirements: General Overview

35. Trial court award of attorney fees pursuant to Fla. Stat. § 57.105(2) to a prevailing party in a contract action was reversed because the prevailing party failed to plead entitlement to such fees and no recognized exception to the rule requiring specific pleading applied; a party seeking attorney’s fees pursuant to a statute or contract must plead entitlement to such fees. Res Panel Refrigeration Corp. v. Bill Collins Refrigeration Servs., 636 So. 2d 569, 1994 Fla. App. LEXIS 4415 (Fla. 3rd DCA 1994).

Civil Procedure: Pleading & Practice: Pleadings: Rule Application & Interpretation

36. As a mortgagor and guarantor failed to plead entitlement to attorneys’ fees under Fla. R. Civ. P. 1.100(a) pursuant to the provisions of loan documents that were the subject of a mortgagee’s foreclosure action against them, as well as pursuant to Fla. Stat. § 57.105, a trial court’s award of such fees was error. BMR Funding, LLC v. DDR Corp., 67 So. 3d 1137, 2011 Fla. App. LEXIS 11903 (Fla. 2nd DCA 2011).

Civil Procedure: Pleading & Practice: Service of Process: General Overview

37. Under Fla. Stat. § 57.105(1), the mere failure to comply with presuit notice does not in and of itself allow an award of attorney’s fees. Widmer v. Caldwell, 714 So. 2d 1128, 1998 Fla. App. LEXIS 8478 (Fla. 1st DCA 1998).

Civil Procedure: Pleading & Practice: Service of Process: Methods: Electronic Means

38. Appellant was not entitled to attorney's fees since he did not comply with Fla. R. Jud. Admin. 2.516 where: (1) the e-mail he sent appellee's attorney before filing the sanctions motion attached the motion in Word format instead of a PDF or link; (2) the subject line failed to state “SERVICE OF COURT DOCUMENT” and the circuit court case number was not correctly identified; (3) the body of the e-mail failed to contain any of the required information, but said, “See attached motion”; (4) this section was strictly construed as it was in derogation of the common law; and (5) substantial compliance with Rule 2.516 was insufficient under the safe harbor provision, even though appellee had actual notice. Matte v. Caplan, 140 So. 3d 686, 2014 Fla. App. LEXIS 8853 (Fla. 4th DCA 2014).

39. Strict compliance with Fla. R. Jud. Admin. 2.516 regarding e-mail service of pleadings is required before a court may assess attorney's fees pursuant to this section; actual notice does not allow a party to evade strict compliance with this section. Matte v. Caplan, 140 So. 3d 686, 2014 Fla. App. LEXIS 8853 (Fla. 4th DCA 2014).

Civil Procedure: Pleading & Practice: Service of Process: Proof: General Overview

40. In an action filed by a distributor against a buyer for treble damages for tendering worthless checks to pay for merchandise, the buyer’s motion for relief from the entry of a default judgment against it was properly denied, given that proof of service upon the buyer’s registered agent was shown, and general damages were properly awarded; but, an attorney-fee award, which was entered as a sanction against the buyer, was reversed, as such was considered unliquidated damages requiring notice to the defaulting party and an opportunity to be heard. Latin Am. Cafeteria, Inc. v. Zales Meats Distribs., 921 So. 2d 768, 2006 Fla. App. LEXIS 2213 (Fla. 3rd DCA 2006).

Civil Procedure: Parties: Joinder: General Overview

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41. An award of attorney fees pursuant to Fla. Stat. § 57.105 for bringing suit against a person who did not own the automobile involved in an accident was reversed, because there was nothing in a letter from the Department of Highway Safety and Motor Vehicles that negated the accident report’s identification of the person as the owner of the vehicle, because the fact that the person was voluntarily dismissed from the suit did not mean that it was frivolous to join her in the first place, because designation of the person as an owner rather than a bailee did not make her joinder as a defendant frivolous, because the person was present as a passenger in the car at the time of the accident, and was identified by someone at the scene to the investigating officer as the owner, and because there was no information contrary to ownership in possession of plaintiffs’ counsel at the time the suit was filed. McHan v. Huggins, 459 So. 2d 1172, 1984 Fla. App. LEXIS 16427 (Fla. 5th DCA 1984).

Civil Procedure: Parties: Joinder: Necessary Parties

42. Where life tenant was joined in a foreclosure action against another, attorney fees were erroneously awarded to life tenant based on frivolous joinder because she was properly joined as having a material interest in the disposition of the case. Brady v. Myers, 413 So. 2d 466, 1982 Fla. App. LEXIS 20667 (Fla. 4th DCA 1982).

Civil Procedure: Parties: Joinder: Permissive Joinder

43. Because Fla. Stat. § 627.727(6) did not limit how the joinder of a tortfeasor and an underinsured motorist carrier could occur, an insured’s attempt to join its underinsured motorist carrier in the insured’s action against a tortfeasor was not so devoid of merit as to have warranted the award of attorney’s fees to the carrier under Fla. Stat. § 57.105. Young v. Dharamdass, 695 So. 2d 828, 1997 Fla. App. LEXIS 6248 (Fla. 4th DCA 1997).

Civil Procedure: Judicial Officers: Judges: Discretion

44. In a negligence action filed by a surviving spouse, the trial court abused its discretion in determining that the surviving spouse knew or should have known that her claims against a helicopter mechanic were not supported by the material facts; therefore an award of attorney’s fees to the mechanic under Fla. Stat. § 57.105 was reversed. Salazar v. Helicopter Structural & Maint., Inc., 986 So. 2d 620, 2007 Fla. App. LEXIS 17751 (Fla. 2nd DCA 2007).

Civil Procedure: Judicial Officers: Masters: General Overview

45. In an action for dissolution of a corporation, where a trial court referred the matter of valuation of shares to a special master who had overseen discovery without both parties’ consent and despite repeated objections by counsel for appellant, in contravention of Fla. R. Civ. P. 1.490(c), such referral occurred prior to the effective date of a revision to the sanctions statute, Fla. Stat. § 57.105. Sanctions were denied because the former version of Fla. Stat. § 57.105 applied, which required a finding that the lawsuit had been frivolous from its inception, and nothing warranted such a finding. Rosenberg v. Morales, 804 So. 2d 622, 2002 Fla. App. LEXIS 1158 (Fla. 3rd DCA 2002).

Civil Procedure: Discovery: Disclosures: Sanctions

46. In a removed adversary proceeding in which a bankruptcy court had to determine the amount of attorneys' fees and costs arising from five state court orders awarding sanctions against defendants for discovery and litigation abuses, the court noted the difficulty of determining a reasonable number of hours where plaintiffs' lawyers failed to keep reliable or contemporaneous time records, even after the state court granted their requests for sanctions. The court eliminated any hours more properly classified as general litigation tasks not compensable under the sanction orders and patently unreasonable requests and resolved ambiguities in favor of plaintiffs' counsel. Orlando Gateway Partners, LLC v. Good Gateway, LLC (In re Orlando Gateway Partners, LLC), 2016 Bankr. LEXIS 1866 (Bankr. M.D. Fla. Apr. 29, 2016).

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47. In a removed adversary proceeding in which a bankruptcy court had to determine the amount of attorneys' fees and costs arising from five state court orders awarding sanctions against defendants for discovery and litigation abuses, plaintiffs failed to meet their burden to show that any cost was reasonably necessary or connected in any way with the sanctions orders. Further, costs incurred in connection with a motion for sanctions related to litigation abuses were not recoverable. Orlando Gateway Partners, LLC v. Good Gateway, LLC (In re Orlando Gateway Partners, LLC), 2016 Bankr. LEXIS 1866 (Bankr. M.D. Fla. Apr. 29, 2016).

48. In a removed adversary proceeding in which a bankruptcy court had to determine the amount of attorneys' fees and costs arising from five state court orders awarding sanctions against defendants for discovery and litigation abuses, the court determined that a fee multiplier was not merited because plaintiffs did not identify a factor that the lodestar did not take into account adequately and prove with specificity that the enhancement was warranted. Nor was a discretionary global sanction appropriate, as no justification for such a sanction was credibly demonstrated. Orlando Gateway Partners, LLC v. Good Gateway, LLC (In re Orlando Gateway Partners, LLC), 2016 Bankr. LEXIS 1866 (Bankr. M.D. Fla. Apr. 29, 2016).

49. In a removed adversary proceeding in which a bankruptcy court had to determine the amount of attorneys' fees and costs arising from state court orders awarding sanctions against defendants (a debtor and on-debtors) for discovery and litigation abuses, the court determined that debtor was not liable for sanctions awarded for non-debtors' improper assertion of the automatic stay, and a non-debtor was not liable for sanctions on an order in which plaintiffs did not seek relief against that party. Defendants were jointly and severally liable (except to the extent they were found not liable for a particular sanction) because they were working jointly to defeat plaintiffs' legitimate discovery efforts. Orlando Gateway Partners, LLC v. Good Gateway, LLC (In re Orlando Gateway Partners, LLC), 2016 Bankr. LEXIS 1866 (Bankr. M.D. Fla. Apr. 29, 2016).

Civil Procedure: Discovery: Methods: General Overview

50. Dismissal of a complaint for discovery was error because a complainant was allowed to obtain discovery from a defendant through a pure bill of discovery; even if the dismissal were for a pleading deficiency it should have been without prejudice to amend, and thus, it was error to assess fees against plaintiff. Payne v. Beverly, 958 So. 2d 1112, 2007 Fla. App. LEXIS 9595 (Fla. 5th DCA 2007).

Civil Procedure: Discovery: Misconduct

51. By ordering the seller to produce privileged documents without an in camera inspection or hearing, the circuit court departed from the essential requirements of law and left the seller without an adequate remedy on appeal; the demand for discovery was taken primarily for the purpose of unreasonable delay. Harley Shipbuilding Corp. v. Fast Cats Ferry Serv., L.L.C., 820 So. 2d 445, 2002 Fla. App. LEXIS 9700 (Fla. 2nd DCA 2002).

Civil Procedure: Dismissals: Involuntary Dismissals: General Overview

52. Dismissal of construction company’s complaint against a corporation with prejudice as sanction was error because the construction company’s failure in the complaint to refer to or seek to rescind the parties’ settlement agreement was not fraud; instead, if anything, the settlement agreement’s effect on the construction company’s claim was more appropriately raised by the corporation as an affirmative defense, as the corporation was not hampered in the presentation of its case by the alleged pleading defect. Dismissal was particularly inappropriate in situations where, as here, the attorney, and not the client, was responsible for the error. Rocka Fuerta Constr., Inc. v. Southwick, Inc., 103 So. 3d 1022, 2012 Fla. App. LEXIS 22160 (Fla. 5th DCA 2012).

53. Dismissal for failure to prosecute under Fla. R. Civ. P. 1.420(e) is not an adjudication on the merits. Furthermore, an award of fees is not always appropriate under Fla. Stat. § 57.105 when the party seeking fees was successful in obtaining the

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dismissal of the action. Mullins v. Kennelly, 847 So. 2d 1151, 2003 Fla. App. LEXIS 9477 (Fla. 5th DCA 2003).

54. Dismissal with prejudice of count two of the last amended complaint was affirmed, but dismissal on the pleadings was not sufficient grounds to award attorney’s fees under Fla. Stat. § 57.105. Stoddard v. Wohlfahrt, 573 So. 2d 1060, 1991 Fla. App. LEXIS 860 (Fla. 5th DCA 1991).

Civil Procedure: Dismissals: Involuntary Dismissals: Failures to Comply

55. As the trial court's sanction of dismissal of a bank's residential foreclosure action was not warranted because it was too extreme, the award of fees and costs to the mortgagor also did not withstand challenge on appeal because she was not a prevailing party. H&R Block Bank v. Perry, 205 So. 3d 776, 2016 Fla. App. LEXIS 13525 (Fla. 2nd DCA 2016).

Civil Procedure: Dismissals: Voluntary Dismissals: General Overview

56. Neither the mortgagor nor its counsel was entitled to attorney’s fees under this section after the mortgagees voluntarily dismissed the foreclosure actions since the claims had been mooted by a senior creditor’s foreclosure of its lien on the property, neither party prevailed on the foreclosure claims, and the dismissed claims were only part of the complex litigation pending among the mortgagee, the mortgagor and other parties. Tubbs v. Mechanik Nuccio Hearne & Wester, P.A., 125 So. 3d 1034, 2013 Fla. App. LEXIS 11736 (Fla. 2nd DCA 2013).

57. Where plaintiff clients filed for voluntary dismissal of their legal malpractice suit against defendant attorney, the trial court abused its discretion in denying defendant attorney’s motion for attorney’s fees under Fla. Stat. § 57.105(1); the plaintiffs had no factual basis to support the allegations against defendant. Tobin v. Bursch, 934 So. 2d 493, 2005 Fla. App. LEXIS 4368 (Fla. 3rd DCA 2005).

Civil Procedure: Pretrial Judgments: Default: Relief From Default

58. In an action granting default judgment to a distributor for treble damages for a buyer’s tendering of worthless checks to pay for merchandise, relief from that portion of an amended final default judgment awarding attorney’s fees was properly raised pursuant to Fla. R. Civ. P. 1.540, and should have been granted, with an evidentiary hearing held as to the amount of attorney’s fees. Latin Am. Cafeteria, Inc. v. Zales Meats Distribs., 921 So. 2d 768, 2006 Fla. App. LEXIS 2213 (Fla. 3rd DCA 2006).

Civil Procedure: Summary Judgment: General Overview

59. Fla. Stat. § 57.105 provides for the award of a reasonable attorney’s fee to the prevailing party in any civil action where there is no justiciable issue of either law or fact raised by either the complaint or defense of the losing parties; therefore, the trial court should have awarded attorney’s fees to appellees where they prevailed on a motion for summary judgment on the doctrine of res judicata, as there was no justiciable issue of law or fact. Olson v. Potter, 650 So. 2d 635, 1995 Fla. App. LEXIS 464 (Fla. 2nd DCA 1995).

Civil Procedure: Summary Judgment: Standards: General Overview

60. Trial court erred in awarding attorneys fees pursuant to Fla. Stat. § 57.105 to property owners because the city was not required to investigate and eliminate every possible defense before filing an action, and the standard for granting summary judgment was not the equivalent of frivolousness. City of Largo v. LaGrande, 650 So. 2d 178, 1995 Fla. App. LEXIS 981 (Fla. 2nd DCA 1995).

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61. Summary judgment rendered pursuant to Fla. R. Civ. P. 1.150(c), upon a showing that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law, is not equivalent to the finding of frivolousness required by Fla. Stat. § 57.105 for an award of attorney’s fees. Whitten v. Progressive Casualty Ins. Co., 410 So. 2d 501, 1982 Fla. LEXIS 2356 (Fla. 1982), overruled in part, Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145, 1985 Fla. LEXIS 3238 (Fla. 1985), overruled in part as stated in Carnival Leisure Indus. v. Holzman, 660 So. 2d 410, 1995 Fla. App. LEXIS 9909 (Fla. 4th DCA 1995), superseded by statute as stated in McPherson v. Bittner, 126 So. 3d 1230, 2012 Fla. App. LEXIS 18499 (Fla. 4th DCA 2012).

Civil Procedure: Alternative Dispute Resolution: Mandatory ADR

62. Because the parties failed to comply with Fla. Stat. § 682.10, Fla. Stat. § 682.13, and Fla. Stat. § 682.14 by seeking modification or clarification of an arbitrator’s award that did not specify the basis for the arbitration award or to designate a prevailing party, the trial court erred in granting a subcontractor’s motion for attorney’s fees. Coral-Tech Assocs. v. Plumbing Contrs., Inc., 916 So. 2d 958, 2005 Fla. App. LEXIS 19599 (Fla. 4th DCA 2005).

Civil Procedure: Alternative Dispute Resolution: Validity of ADR Methods

63. Sailboat owner sued a property owner under Fla. Stat. § 812.014(1) for the civil theft of his badly damaged boat, which was worth only $500, after demanding the boat’s return or $24,000; the property owner had already paid him restitution of $5,000 in a criminal theft case. An arbitrator’s written decision was not final as she failed to consider, as ordered by the referring trial court, the property owner’s claim for counsel fees under Fla. Stat. § 57.105(1)(b), 772.11, and for an offset of the restitution payment under Fla. Stat. § 775.089(8). Diaz v. Andy, 987 So. 2d 698, 2008 Fla. App. LEXIS 8444 (Fla. 3rd DCA 2008).

Civil Procedure: Settlements: Releases From Liability: General Overview

64. Despite the fact that a trial court erroneously denied a personal representative’s motion to vacate an agreed order in which the court erroneously added handwritten and non-agreed language releasing all claims against an attorney, an accountant, and an appraiser, the appeals court chose not to hold that the trial court abused its discretion in denying the personal representative’s attorney’s fees incurred in seeking to set said order aside. James v. Carr, 900 So. 2d 680, 2005 Fla. App. LEXIS 5431 (Fla. 3rd DCA 2005).

65. Where property owners, whose tree roots had caused a city sidewalk to crack, obtained a release from a pedestrian who was injured when she tripped on the crack and then sued the city, which then filed a third-party complaint against the owners for contribution, the trial court erred in awarding the owners attorney fees from the city under Fla. Stat. § 57.105 because the city had a legitimate third-party claim against the owners and had no notice of the release before filing the third-party complaint; the statute did not require a claimant to investigate and eliminate every possible defense before filing an action. City of Largo v. LaGrande, 650 So. 2d 178, 1995 Fla. App. LEXIS 981 (Fla. 2nd DCA 1995).

Civil Procedure: Settlements: Settlement Agreements: Effects

66. Since compensatory sanctions could be bargained away, plaintiff seller had no claim to a compensatory award under Fed. R. Civ. P. 37(a)(5), Fla. Stat. § 57.105, 28 U.S.C.S. § 1927 after it settled all know or unknown claims or obligations related to the asserted claims against defendant buyer. Sure Fill & Seal, Inc. v. GFF, Inc., 2010 U.S. Dist. LEXIS 78906 (M.D. Fla. Aug. 6, 2010), aff'd, 411 Fed. Appx. 267, 2011 U.S. App. LEXIS 1889 (11th Cir. Fla. 2011).

Civil Procedure: Settlements: Settlement Agreements: Validity

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67. Trial court erred in awarding fees under this section to a former wife when the former husband requested to set aside the parties' stipulated oral settlement involving custody issues because the trial court had an independent obligation to determine the children's “best interests” and repudiate the “preliminary” agreement to the extent it was inconsistent with the best interests standard. Puglisi v. Puglisi, 135 So. 3d 1146, 2014 Fla. App. LEXIS 5619 (Fla. 5th DCA 2014).

Civil Procedure: Trials: Bench Trials

68. Orders requiring a client and a law firm to each pay 50 percent of the attorneys’ fees for the opposing party, following an entry of final summary judgment for the opposing party, were reversed and remanded as to the law firm because the trial court did not conduct an evidentiary hearing or otherwise make an express finding that the law firm was not acting in good faith when it brought an action on behalf of the client. Ferdie v. Isaacson, 8 So. 3d 1246, 2009 Fla. App. LEXIS 4213 (Fla. 4th DCA 2009).

Civil Procedure: Trials: Judgment as Matter of Law: General Overview

69. Where the appellate court reversed the trial court’s directed verdict it rendered the trial court’s attorney fee award premature and inappropriate. Hagans Co. v. Manla, 534 So. 2d 750, 1988 Fla. App. LEXIS 4910 (Fla. 3rd DCA 1988).

Civil Procedure: Judgments: Entry of Judgments: Enforcement & Execution: Garnishments

70. The failure to serve the writs of garnishment and related documents as required by Fla. Stat. § 77.041(2), on a judgment debtor did nothing to undermine the factual or legal basis on which such writs rested and thus, sanctions of fees and costs imposed upon an attorney and a judgment creditor under Fla. Stat. § 57.105, were inappropriate. Cullen v. Marsh, 34 So. 3d 235, 2010 Fla. App. LEXIS 6548 (Fla. 3rd DCA 2010).

Civil Procedure: Judgments: Preclusion & Effect of Judgments: Estoppel: Collateral Estoppel

71. State court judgment was not entitled to collateral estoppel effect in a nondischargeability proceeding against a Chapter 7 debtor, as the judgment did not clarify the basis for the damages awarded or which damages pertained to which allegation. With respect to an award of attorney's fees, the judgment referenced two Florida statutes, one of which awarded fees and costs to a prevailing party in a civil theft action and one of which awarded fees and costs as a sanction for asserting an unsupported claim or defense, but there was no explanation as to what portion, if any, of the fees were awarded in connection with civil theft. Flemm v. Trexler (In re Trexler), 2015 Bankr. LEXIS 1150 (Mar. 30, 2015).

Civil Procedure: Judgments: Preclusion & Effect of Judgments: Estoppel: Judicial Estoppel

72. Debtor’s previous claim that creditor’s mortgage was invalid did not, under the doctrine of judicial estoppel, prevent the debtor from subsequently relying on a fee-shifting provision in the mortgage where the debtor’s previous position was not taken under oath; however, because evidence suggested that the creditor’s position had some merit, the court declined to award fees under to Fla. Stat. § 57.105(7). In re Full Gospel Assembly of Delray Beach, Inc., 2006 Bankr. LEXIS 3892 (Bankr. S.D. Fla. 2006).

Civil Procedure: Judgments: Preclusion & Effect of Judgments: Law of the Case

73. Court’s prior denial of appellate fees under Fla. Stat. § 57.105 was not the law of the case as to trial-level fees Shuck v. Smalls, 101 So. 3d 924, 2012 Fla. App. LEXIS 20886 (Fla. 4th DCA 2012).

Civil Procedure: Judgments: Relief From Judgment: General Overview

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74. Despite the fact that a trial court erroneously denied a personal representative’s motion to vacate an agreed order in which the court erroneously added handwritten and non-agreed language releasing all claims against an attorney, an accountant, and an appraiser, the appeals court chose not to hold that the trial court abused its discretion in denying the personal representative’s attorney’s fees incurred in seeking to set said order aside. James v. Carr, 900 So. 2d 680, 2005 Fla. App. LEXIS 5431 (Fla. 3rd DCA 2005).

Civil Procedure: Judgments: Relief From Judgment: Additurs & Remittiturs: General Overview

75. Where the jury’s award against a seller exceeded that which was supported by the evidence, the trial court abused its discretion in denying the seller’s motion for remittitur; therefore, the matter was remanded with directions for the buyer to accept remittitur or face a new trial on the issue of damages. Rivard v. Gioia, 872 So. 2d 947, 2004 Fla. App. LEXIS 4332 (Fla. 5th DCA 2004).

76. Trial court abused its discretion by denying the general contractor’s motion for remittitur because the evidence indicated that the maximum allowable award was $ 192,155; and the reversal of the damages awarded in the liability appeal resulted in a provisional reversal of the attorney’s fees awarded to the subcontractor. McCarthy Bros. Co. v. Tilbury Constr., Inc., 849 So. 2d 7, 2003 Fla. App. LEXIS 3062 (Fla. 1st DCA 2003).

Civil Procedure: Judgments: Relief From Judgment: Motions for New Trials

77. Where the jury’s award against a seller exceeded that which was supported by the evidence, the trial court abused its discretion in denying the seller’s motion for remittitur; therefore, the matter was remanded with directions for the buyer to accept remittitur or face a new trial on the issue of damages. Rivard v. Gioia, 872 So. 2d 947, 2004 Fla. App. LEXIS 4332 (Fla. 5th DCA 2004).

Civil Procedure: Judgments: Relief From Judgment: Motions to Alter & Amend

78. Bankruptcy court denied motions to reconsider its judgment awarding a corporation that declared Chapter 11 bankruptcy attorney’s fees under Fla. Stat. § 57.105(7) in an adversary proceeding the corporation filed against a bank. There was no merit to the corporation’s claim that the court reduced the hourly rate its attorneys charged as a sanction for the attorneys’ behavior in court, and the court’s award was proper under Florida law because the bank had knowledge that the corporation was going to ask for attorney’s fees; the bank drafted a contract that was in dispute, and the contract entitled the prevailing party to recover its attorney’s fees. Jerk Mach., Inc. v. Bank of Am., N.A. (In re Jerk Mach., Inc.), 425 B.R. 880, 2010 Bankr. LEXIS 654 (Bankr. S.D. Fla. 2010).

Civil Procedure: Judgments: Relief From Judgment: Newly Discovered Evidence

79. Because a former wife obtained a copy of a declaration of trust prior to a trial court’s dismissal order, the trial court erred in dismissing the case and denying her motion to reopen the record to include newly discovered evidence; therefore, the award of attorney’s fees to the former husband under Fla. Stat. § 57.105(1) was also reversed. Langer v. Langer, 919 So. 2d 484, 2005 Fla. App. LEXIS 17324 (Fla. 3rd DCA 2005).

Civil Procedure: Remedies: Costs & Attorney Fees: General Overview

80. Court’s determination that a party’s interpretation of a contract is incorrect does not mean that the other party is necessarily entitled to attorney fees. Peyton v. Horner, 920 So. 2d 180, 2006 Fla. App. LEXIS 1648 (Fla. 2nd DCA 2006).

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81. Fla. Stat. § 57.105(7) allowed for the recovery of attorney’s fees by a contractor who successfully defended a counterclaim asserted against it when the owner could have recovered attorney’s fees and costs on the counterclaim, pursuant to the agreement between the parties, if the owner had been successful. Inland Dredging Co., L.L.C. v. Pan. City Port Auth., 406 F. Supp. 2d 1277, 2005 U.S. Dist. LEXIS 37469 (N.D. Fla. 2005).

82. Although the trial court did not depart from the essential requirements of the law when it quashed an order suspending a contractor’s ability to obtain building permits, it erred in awarding attorney’s fees without enunciating a basis for the award under Fla. Stat. § 57.105(1), (2). Orange County Bldg. Codes v. Strickland Constr. Servs. Corp., 913 So. 2d 718, 2005 Fla. App. LEXIS 17022 (Fla. 5th DCA 2005).

83. Trial court erred in awarding attorney’s fees, pursuant to Fla. Stat. § 57.105(1), to neighbors after property owners voluntarily dismissed the neighbors from a declaratory judgment action; jurisdiction may have existed under the Declaratory Judgment Act as it was possible that the neighbors’ property interests would be imposed on if relief were granted to the property owners. Connelly v. Old Bridge Vill. Co-Op, Inc., 915 So. 2d 652, 2005 Fla. App. LEXIS 16307 (Fla. 2nd DCA 2005).

84. Attorney’s fees were properly awarded to all parties claiming against an insurance policy in a declaratory judgment action where the insurance company’s counsel knew or should have known that at the time he filed the declaratory action, the exclusion the insurance company was relying on in denying coverage had been found void as against public policy and the insurance company failed to raise the argument of a good faith effort to change existing law. Mercury Ins. Co. v. Coatney, 910 So. 2d 925, 2005 Fla. App. LEXIS 14521 (Fla. 1st DCA 2005).

85. Although an expert witness testified extensively on both direct and cross examination regarding the services rendered by the home buyers’ attorneys and the reasonable value of those services, neither of the attorneys who rendered services to the buyers testified as to the nature and extent of their representation. While those attorneys did file affidavits and detailed time statements delineating the nature and extent of their services, neither the affidavits nor the time records were authenticated or introduced into evidence; thus, the matter had to be remanded for a rehearing so that the appropriate evidence could be submitted in support of the Fla. Stat. § 57.105 fees. Morton v. Heathcock, 913 So. 2d 662, 2005 Fla. App. LEXIS 14846 (Fla. 3rd DCA 2005), dismissed, 925 So. 2d 1031, 2006 Fla. LEXIS 83 (Fla. 2006).

86. Personal representative and her counsel knew, or should have known, that a son’s complaint for reimbursement of expenses from an estate was neither devoid of merit, nor untenable; the personal representative’s claim for attorney’s fees under 1997 version of Fla. Stat. § 57.105 was unsupported, and the son and his attorneys were entitled to attorney’s fees under Fla. Stat. § 57.105 as amended in 1999. Albritton v. Ferrera, 913 So. 2d 5, 2005 Fla. App. LEXIS 13871 (Fla. 1st DCA 2005).

87. Neither res judicata nor Fla. R. Civ. P. 1.525 barred an award of attorney fees and costs to a property owner whose property was seized by the county sheriff and subject to a forfeiture proceeding, as the statutory cause of action filed pursuant to Fla. Stat. § 932.704 encompassed attorney fees for the trial and proof of damages ascertained after the trial, and it would be a piecemeal approach to require that some elements of the cause of action be determined at the forfeiture trial, while others would be determined later; further, to require a property owner to allege bad faith and request attorney fees pro forma, without a basis to do so, could potentially subject the owner to Fla. Stat. § 57.105 attorney fees for himself or herself. Cobb v. Langworthy, 909 So. 2d 416, 2005 Fla. App. LEXIS 12779 (Fla. 5th DCA 2005).

88. Because an attorney successfully pleaded a cause of action for slander against an abutter, the trial court erred in assessing the attorney for the abutter’s costs and attorney fees, pursuant to Fla. Stat. § 57.105. Scott v. Busch, 907 So. 2d 662, 2005 Fla. App. LEXIS 11809 (Fla. 5th DCA 2005).

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89. Court erred in overturning an award of attorney fees to a prevailing bankruptcy debtor in a dischargeability action because under Florida law, the debtor and creditor could not have a one-sided attorney fee contract provision. The debtor had a right to attorney fees when the contract was read in light of the Florida attorney fee reciprocity statute, Fla. Stat. § 57.105(6), which was incorporated into the contract by operation of law. Cadle Co. v. Martinez (In re Martinez), 416 F.3d 1286, 2005 U.S. App. LEXIS 14090 (11th Cir. Fla. 2005).

90. Amendment to Fla. Stat. § 57.105 greatly expands the statute’s potential use; it no longer applies only to an entire action as it now applies to any claim or defense. Boca Burger, Inc. v. Forum, 912 So. 2d 561, 2005 Fla. LEXIS 1449 (Fla. 2005).

91. District court did not abuse its discretion when it refused to award attorney’s fees to a cruise line because, even though the manufacturer’s complaint failed, it was not frivolous and the manufacturer had presented some evidence that it worked on behalf of two cruise lines, although not evidence to prove the existence of a genuine issue of material fact. Ship Constr. & Funding Servs. (U.S.A.), Inc. v. Star Cruises, PLC, 135 Fed. Appx. 218, 2005 U.S. App. LEXIS 10297 (11th Cir. Fla. 2005).

92. Trial court erred in awarding a fee split between two attorneys, as the substituted attorney was entitled to the full contingency fee provided for in the contract; hence, the substituted attorney was entitled to an agreed-upon, but reduced contingency fee, and the client could not complain on appeal about paying both her discharged and substituted attorney, as the substituted attorney notified her that this was a possibility when she retained him. Lubell v. Martinez, 901 So. 2d 951, 2005 Fla. App. LEXIS 6491 (Fla. 3rd DCA 2005).

93. Despite the fact that a trial court erroneously denied a personal representative’s motion to vacate an agreed order in which the court erroneously added handwritten and non-agreed language releasing all claims against an attorney, an accountant, and an appraiser, the appeals court chose not to hold that the trial court abused its discretion in denying the personal representative’s attorney’s fees incurred in seeking to set said order aside. James v. Carr, 900 So. 2d 680, 2005 Fla. App. LEXIS 5431 (Fla. 3rd DCA 2005).

94. Trial court abused its discretion in denying appellant inmate’s motion for attorney’s fees following the granting of his petition for writ of mandamus, because the defenses raised to the petition by the Florida Parole Commission contained no factual dispute, made no reasonable attempt to change existing law, and advanced no plausible basis for the Parole Commission’s interpretation of the controlling statute, as required by Fla. Stat. § 57.105(1)(b), (2). King v. Fla. Parole Comm'n, 898 So. 2d 1100, 2005 Fla. App. LEXIS 4309 (Fla. 1st DCA 2005).

95. Substantial, competent evidence was presented to support a trial court’s order awarding attorney’s fees to a cable television company which challenged property taxes assessed by application of unit method of valuation where appraiser should have known that unit method had been declared unconstitutional by the time the case at bar went to trial; the trial court had jurisdiction to award the attorney’s fees even though an appeal of the final judgment was pending. Schultz v. Time Warner Entm't Co., 906 So. 2d 297, 2005 Fla. App. LEXIS 2683 (Fla. 5th DCA 2005).

96. Circuit court did not abuse its discretion in awarding a corporation attorneys’ fees as an investor’s lawsuit was meritless; further, the court’s failure to distinguish between the amount awarded under Fla. Stat. § 895.01 and Fla. Stat. § 57.105 was of no consequence as the entire award could have been made pursuant to § 57.105 alone. Smith v. Viragen, Inc., 902 So. 2d 187, 2005 Fla. App. LEXIS 2470 (Fla. 3rd DCA 2005).

97. In an eviction action between a landlord and a tenant, where the trial court misplaced its reliance on the Third District Court of Appeals’ summary denial of a tenant’s petition for writ of certiorari, the trial court erred when it denied the tenant’s motion for trial attorney’s fees; but, the appellate division had jurisdiction, and acted within its authority, when it summarily denied the

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tenant’s motion for appellate attorney’s fees, and reconsideration on manifest injustice grounds was unwarranted. Business Success Group, Inc. v. Argus Trade Realty Inv., Inc., 898 So. 2d 970, 2005 Fla. App. LEXIS 2059 (Fla. 3rd DCA 2005).

98. Bankruptcy court declined to exercise its discretion to impose attorney’s fees against a creditor after finding that a debt owed to the creditor by a debtor on a promissory note was dischargeable, despite the fact that the promissory note contained a provision for an award of attorney’s fees if it was defaulted, because shifting of fees would have been unjust. Tester v. Estrada (In re Estrada), 2004 Bankr. LEXIS 1918 (Bankr. M.D. Fla. Dec. 10, 2004).

99. Trial court had jurisdiction and should have awarded attorney fees against a client after it found that the client’s attorney was not liable for the fees as the insurer was not required to cross-appeal against the client when the attorney appealed the award of fees. Avemco Ins. Co. v. Tobin, 886 So. 2d 1034, 2004 Fla. App. LEXIS 17063 (Fla. 4th DCA 2004).

100. Where a trial court did not conduct an evidentiary hearing on a motion for entitlement to fees, any purported findings made by the trial court in support of such fees were not based upon substantial, competent evidence and could not stand. Murphy v. WISU Props., 895 So. 2d 1088, 2004 Fla. App. LEXIS 16411 (Fla. 3rd DCA 2004).

101. Court abused its discretion in awarding attorney fees to an attorney and an accountant who were sued by condominium unit owners in a suit alleging that the attorney and accountant had deliberately hidden the costs of a libel lawsuit from members of the association which the unit member later elected to voluntarily dismiss. The award of attorneys fees at the preliminary stage was an abuse of discretion because the case never reached the discovery stage; the record was not sufficiently developed for such a determination, and the face of the complaint would not support a finding that the action was frivolous. Murphy v. WISU Props., 895 So. 2d 1088, 2004 Fla. App. LEXIS 16411 (Fla. 3rd DCA 2004).

102. Trial court improperly entered two attorney-fee awards under Fla. Stat. § 57.105, concluding that the Department of Revenue had the ability, but failed to obtain conclusive evidence of a putative father’s paternity sufficient to avoid the necessity of prosecuting a formal paternity suit; further, a third award was stricken, as the court lacked jurisdiction to enter an award of appellate fees. Dep't of Revenue v. Yambert, 883 So. 2d 881, 2004 Fla. App. LEXIS 14449 (Fla. 5th DCA 2004).

103. Trial court erred in vacating an award of attorney’s fees to plaintiffs pursuant to Fla. Stat § 57.105; it was not necessary for plaintiffs to serve and file a second motion for fees directed at defendant’s third amended counterclaim in order to preserve its claim. Maxwell Bldg. Corp. v. Euro Concepts, L.L.C., 874 So. 2d 709, 2004 Fla. App. LEXIS 7731 (Fla. 4th DCA 2004).

104. Trial court erred in awarding attorney fees in six complaints where an insurer moved to disqualify the attorney for the complainants inasmuch as certiorari was not an improper procedural remedy for review of the disqualification order. Allstate Ins. Co. v. Barnes Family Chiropractic, 875 So. 2d 14, 2004 Fla. App. LEXIS 6428 (Fla. 5th DCA 2004).

105. Trial court properly awarded attorneys’ fees incurred by a doctor in litigating a non-resident litigant’s residency claim because the litigant knew or should have known that his affidavit stating his formal residence in the State of Florida was false, as supported by his sworn tax return; however, where the underlying judgment regarding the invalidity of the complaint was reversed, an award of attorneys’ fees on that issue was reversed. Wagner v. Uthoff, 868 So. 2d 617, 2004 Fla. App. LEXIS 3069 (Fla. 2nd DCA 2004).

106. Trial court erred in awarding attorney’s fees to appellee estate representative pursuant to Fla. Stat. § 57.105 (2002) where appellants had a legitimate basis for challenging appellee’s motion to confirm a settlement, as the claims in a wrongful death action filed by the representative and the motion to confirm the settlement were inconsistent. Cook v. Estate of Silverio, 859 So.

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2d 1253, 2003 Fla. App. LEXIS 17560 (Fla. 3rd DCA 2003).

107. Trial court erred in awarding attorney’s fees to a representative of an estate pursuant to Fla. Stat. § 57.105; appellants had a basis to challenge a motion to confirm a settlement, as the claims in a wrongful death action filed by the representative and the motion to confirm the settlement were inconsistent. Cook v. Estate of Silverio, 859 So. 2d 1253, 2003 Fla. App. LEXIS 17560 (Fla. 3rd DCA 2003).

108. Where a trial court awarded attorneys’ fees to a party under an earlier, inapplicable version of a statute, the award required a reversal and remand for reconsideration under the current version of the statute, Fla. Stat. § 57.105. Airtran Airways, Inc. v. Avaero Noise Reduction Joint Venture, 858 So. 2d 1232, 2003 Fla. App. LEXIS 17434 (Fla. 5th DCA 2003).

109. Where a trial court awarded attorneys’ fees to a prevailing party in a lawsuit based on its finding that there were “no justiciable issues, either in fact or law,” it was apparent that the award was made under Fla. Stat. § 57.105, which was the wrong statutory version for the action because the action was commenced in May 2000; attorneys’ fees under Fla. Stat. § 57.105 are awarded under a slightly different standard than the prior version of the statute, and the 1999 version of the statute is applicable to actions taken, positions maintained, or papers filed subsequent to October 1, 1999. Airtran Airways, Inc. v. Avaero Noise Reduction Joint Venture, 858 So. 2d 1232, 2003 Fla. App. LEXIS 17434 (Fla. 5th DCA 2003).

110. A joint stipulation and dismissal of the bank’s suit did not bar the customer’s action because the bank presented no evidence a party should be foreclosed from bringing a malicious prosecution suit merely because the party did not move for and pursue Fla. Stat. § 57.105 fees in the first proceeding; the bank presented no evidence that there was a genuine compromise or that Fla. Stat. § 57.105 was a factor in the joint stipulation. Doss v. Bank of Am., N.A., 857 So. 2d 991, 2003 Fla. App. LEXIS 16524 (Fla. 5th DCA 2003).

111. Where lawsuits between a franchiser and its franchisee did not concern the collection of unpaid rents, pursuant to the franchise agreement, attorney’s fees pursuant to Fla. Stat. ch. 105(6) were not recoverable. Subway Rests., Inc. v. Thomas, 860 So. 2d 462, 2003 Fla. App. LEXIS 16194 (Fla. 4th DCA 2003).

112. Because one defendant had testified untruthfully in a deposition, plaintiffs’ counsel was entitled to attorney’s fees as a sanction for the extra litigation time required to unearth the actual facts of the case. Torr, Inc. v. Chong, 862 So. 2d 744, 2003 Fla. App. LEXIS 15713 (Fla. 3rd DCA 2003).

113. Although the losing party may be said to be on continual notice that attorney’s fees may be awarded under Fla. Stat. § 57.105(1) within a reasonable time after entry of final judgment, such notice is not perpetual; an 18 and one-half month delay falls outside the boundary of reasonableness. Graef v. Dames & Moore Group, Inc., 857 So. 2d 257, 2003 Fla. App. LEXIS 13589 (Fla. 2nd DCA 2003).

114. Question of whether a party may be unfairly surprised or prejudiced by a claim for attorney’s fees under Fla. Stat. § 57.105 necessarily involves whether the claim is founded on an allegation of frivolousness under § 57.105(1) or a claim for prevailing party fees under § 57.105(2); although both types of claims are collateral to the main litigation, a claim under § 57.105(2) must be pleaded before entry of final judgment so that the losing party is on notice that the prevailing party will seek such fees after the conclusion of the litigation, and a claim under § 57.105(1) need not be pleaded before entry of final judgment. Graef v. Dames & Moore Group, Inc., 857 So. 2d 257, 2003 Fla. App. LEXIS 13589 (Fla. 2nd DCA 2003).

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115. Trial court’s express reservation of jurisdiction to consider attorney’s fees in an order subsequent to its summary judgment in favor of appellees did not require the conclusion that the subsequent order should prevail over the summary judgment as the starting point to measure appellees’ delay in filing a motion for attorney’s fees under Fla. Stat. § 57.105(1); appellees did not need to wait for the trial court to expressly reserve the jurisdiction that it inherently retained after entry of final judgment. Graef v. Dames & Moore Group, Inc., 857 So. 2d 257, 2003 Fla. App. LEXIS 13589 (Fla. 2nd DCA 2003).

116. Length of appellees’ delay in filing its Fla. Stat. § 57.105(1) motion for attorney’s fees was properly measured from the date the trial court entered an order granting appellees summary judgment. Graef v. Dames & Moore Group, Inc., 857 So. 2d 257, 2003 Fla. App. LEXIS 13589 (Fla. 2nd DCA 2003).

117. Appellees were required to move for Fla. Stat. § 57.105(1) attorney’s fees within a “reasonable time” after entry of final judgment and because appellees filed their motion before the effective date of Fla. R. Civ. P. 1.525, which established a 30-day time limit for the filing of postjudgment motions for costs and attorney’s fees, the bright line of Rule 1.525 did not apply to the case. Graef v. Dames & Moore Group, Inc., 857 So. 2d 257, 2003 Fla. App. LEXIS 13589 (Fla. 2nd DCA 2003).

118. Court reversed an award of attorney’s fees to appellee under Fla. Stat. § 57.105(1), holding that where the § 57.105(1) motion was filed 555 days after the entry of summary judgment in favor of appellees, the patent unreasonableness of the delay outweighed appellant’s inability to show prejudice. Graef v. Dames & Moore Group, Inc., 857 So. 2d 257, 2003 Fla. App. LEXIS 13589 (Fla. 2nd DCA 2003).

119. Courts have identified several factors in determining reasonableness of a delay in filing a motion for attorney’s fees under Fla. Stat. § 57.105(1) (1993), including the danger of unfair surprise or prejudice to a party against whom fees are sought, the existence of special or extenuating circumstances justifying the delay, the pendency of an appeal, whether the policy underlying the requirement of reasonableness is served or offended, and the actual length of delay; no one factor is dispositive, and the weight assigned to any given factor depends on the circumstances of the case. Graef v. Dames & Moore Group, Inc., 857 So. 2d 257, 2003 Fla. App. LEXIS 13589 (Fla. 2nd DCA 2003).

120. Although the losing party may be said to be on continual notice that attorney’s fees may be awarded under Fla. Stat. § 57.105(1) (1993) within a reasonable time after entry of final judgment, such notice is not perpetual. Graef v. Dames & Moore Group, Inc., 857 So. 2d 257, 2003 Fla. App. LEXIS 13589 (Fla. 2nd DCA 2003).

121. Purpose of Fla. Stat. § 57.105(1) (1993) is to dissuade litigants and attorneys from pursuing baseless claims, stonewall defenses, and sham appeals in civil litigation by placing a price tag on losing parties who engage in these activities; requiring motions under § 57.105(1) (1993) to be filed within a reasonable time after entry of final judgment preserves the statute’s purpose by curbing needless prolongation of the litigation. Graef v. Dames & Moore Group, Inc., 857 So. 2d 257, 2003 Fla. App. LEXIS 13589 (Fla. 2nd DCA 2003).

122. Attorney’s fees award under Fla. Stat. § 57.105(1) (1993) was reversed where the prevailing party did not file its motion until 555 days after the entry of summary judgment and 224 days after the summary judgment was affirmed on appeal; the delay in filing the motion outweighed the lack of demonstrated prejudice by the personal representative, and served neither the purpose of § 57.105(1) (1993), nor the requirement that a postjudgment motion for attorney’s fees be filed within a reasonable time. Graef v. Dames & Moore Group, Inc., 857 So. 2d 257, 2003 Fla. App. LEXIS 13589 (Fla. 2nd DCA 2003).

123. Where a determination of prevailing party attorney’s fees had to be based on the face of a prejudgment record, the appellate court treated a personal representative’s certiorari request as a non-final appeal from a post-judgment order pursuant to Fla. R. App. P. 9.130(a)(4) and determined that deposing a personal representative’s attorneys pursuant to Fla. Stat. § 

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57.105 was unnecessary. Jackson v. York Hannover Nursing Ctrs., Inc., 853 So. 2d 598, 2003 Fla. App. LEXIS 13285 (Fla. 5th DCA 2003).

124. Although the individuals were entitled to reasonable fees as the prevailing party, they were not entitled to “fees for fees”— attorney’s fees incurred in litigating the amount of fees to which they were entitled; because neither their contract with a contractor nor Fla. Stat. § 57.105 contained provisions allowing “fees for fees,” the individuals could not avoid the determination in Palma. Mediplex Constr. of Fla., Inc. v. Schaub, 856 So. 2d 13, 2003 Fla. App. LEXIS 13193 (Fla. 4th DCA 2003).

125. Trial court erred in awarding the non-profit organization attorney’s fees pursuant to the parties’ mortgage and note because the organization waived its claim for attorney’s fees by failing to plead entitlement to those fees. Sardon Found. v. New Horizons Serv. Dogs, Inc., 852 So. 2d 416, 2003 Fla. App. LEXIS 12559 (Fla. 5th DCA 2003).

126. Mortgagees in a foreclosure action were not entitled to an award of attorney’s fees on the mortgagor’s counterclaim because the mortgagees failed to prove entitlement to the fees in the trial court; further, the mortgagees were not entitled to a second hearing. Shortes v. Hill, 860 So. 2d 1, 2003 Fla. App. LEXIS 11724 (Fla. 5th DCA 2003).

127. Where a nephew’s complaint, which charged his aunt with undue influence over his grandmother’s distribution of money and property in a trust, was stricken as a sham pleading and dismissed, the trial court could award attorney’s fees solely against the nephew because the aunt’s motion sought attorney’s fees against the nephew only and not against his counsel. Kerzner v. Lerman, 849 So. 2d 1185, 2003 Fla. App. LEXIS 11065 (Fla. 4th DCA 2003).

128. Trial court did not err in requiring the nephew to be solely responsible to pay the fees and costs, after his sham pleading was dismissed, as the aunt waived her ability to seek fees jointly assessed against both the nephew and counsel. Kerzner v. Lerman, 849 So. 2d 1185, 2003 Fla. App. LEXIS 11065 (Fla. 4th DCA 2003).

129. Where the father was not a “losing party” and the trial court did not determine the father’s ability to pay the wife’s attorney’s fees even though the father’s conduct might have been unreasonable vexatious, it did not qualify for fees. Zanone v. Clause, 848 So. 2d 1268, 2003 Fla. App. LEXIS 10358 (Fla. 5th DCA 2003).

130. When awarding fees under Fla. Stat. § 57.105(1), the trial court must find that, at the time a claim or defense is presented to the court, the losing party knows or should know that it was not supported by the material facts necessary to establish the claim or defense or would not be supported by the application of then-existing law to those material facts; an absence of justiciable issues is no longer the standard for awarding fees under the statute. Sher v. Countrywide Home Loans, Inc., 848 So. 2d 1246, 2003 Fla. App. LEXIS 10224 (Fla. 4th DCA 2003).

131. In tenants’ action alleging trespass, civil theft, and intentional infliction of emotion distress, the trial court’s fee award pursuant to Fla. Stat. § 57.105 was erroneous, where the award was based on finding a lack of justiciable issues on the emotional distress and fraud claims, which was not the correct standard. Sher v. Countrywide Home Loans, Inc., 848 So. 2d 1246, 2003 Fla. App. LEXIS 10224 (Fla. 4th DCA 2003).

132. Award of fees pursuant to Fla. Stat. § 57.105 in favor of a wife was proper where the husband’s attack on the alimony statutes was irrelevant, frivolous, and brought by counsel only to advance the cause of an unrelated client, an organization apparently committed to addressing awards of alimony. Barna v. Barna, 850 So. 2d 603, 2003 Fla. App. LEXIS 10222 (Fla. 4th

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DCA 2003), cert. denied, 543 U.S. 816, 125 S. Ct. 53, 160 L. Ed. 2d 22, 2004 U.S. LEXIS 5615 (U.S. 2004).

133. Trial court’s award of attorney fees to a mortgage company that had purchased a home at a foreclosure sale, and thereafter, the tenants that had been renting the home commenced an action based on assorted tort theories due to their personal belongings having been removed by a man hired by the listing agent to clear the house in preparation for resale, was error where the trial court had awarded the fees upon finding that no justiciable issues had been presented by the tenants’ claims for intentional infliction of emotional distress and fraud; the court noted that such was no longer the standard for an award of such fees and further proceedings were required on the correct standard of whether, at the time that the complaint was presented, the tenants knew or should have know that it was not supported by material facts necessary to establish their claims. Sher v. Countrywide Home Loans, Inc., 848 So. 2d 1246, 2003 Fla. App. LEXIS 10224 (Fla. 4th DCA 2003).

134. Dismissal for failure to prosecute under Fla. R. Civ. P. 1.420(e) is not an adjudication on the merits. Furthermore, an award of fees is not always appropriate under Fla. Stat. § 57.105 when the party seeking fees was successful in obtaining the dismissal of the action. Mullins v. Kennelly, 847 So. 2d 1151, 2003 Fla. App. LEXIS 9477 (Fla. 5th DCA 2003).

135. Attorney facing a Fla. Stat. § 57.105 proceeding was required to apprise the client of any potential conflict and the consequences of continued representation once the attorney has formed a reasonable belief that such representation will not be adversely affected, documenting not only the disclosure but also the client’s endorsement of the disclosure and the continuing representation; in such circumstances, the attorney must consider whether the conflict will materially interfere with the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client. Mullins v. Kennelly, 847 So. 2d 1151, 2003 Fla. App. LEXIS 9477 (Fla. 5th DCA 2003).

136. Whether conduct by a party which caused their suit to be dismissed for lack of prosecution should be sanctioned should be measured by the standard in effect at the time of the conduct to be sanctioned; such an interpretation helps achieve the prophylactic goal of the statute, while not retroactively penalizing a party for actions that occurred, or papers that were filed, when the earlier version of Fla. Stat. § 57.105 controlled. Mullins v. Kennelly, 847 So. 2d 1151, 2003 Fla. App. LEXIS 9477 (Fla. 5th DCA 2003).

137. Dog owners, as the opposing party in a lawsuit initiated by an injured party through her attorney, were erroneously awarded attorney’s fees, pursuant to Fla. Stat. § 57.105, for work their attorney performed from the time depositions were completed until the time the case was dismissed for lack of prosecution, where they conceded that given the conflicting testimony in the record, they would not have succeeded on a motion for summary judgment or for directed verdict had the case gone to trial. Mullins v. Kennelly, 847 So. 2d 1151, 2003 Fla. App. LEXIS 9477 (Fla. 5th DCA 2003).

138. In a dependency action, an award of attorneys’ fees to the parents was justified because dependency proceedings were civil in nature and the attorneys’ fees statute applied to dependency proceedings. Dep't of Children & Family Servs. v. Carter, 851 So. 2d 197, 2003 Fla. App. LEXIS 9245 (Fla. 5th DCA 2003).

139. In a dependency action, an award of Fla. Stat. § 57.105 attorneys’ fees to the parents was justified because dependency proceedings were not criminal in nature where they did not involve the risk of loss of physical liberty, and Fla. Stat. § 57.105 applied to dependency proceedings. Dep't of Children & Family Servs. v. Carter, 851 So. 2d 197, 2003 Fla. App. LEXIS 9245 (Fla. 5th DCA 2003).

140. Because a borrower did not present any new issues that would allow it to fall within the safe harbor of the provisions of Fla. Stat. § 57.105(2), the trial court abused its discretion by failing to award attorney’s fees to the assignee in a foreclosure action. Americana Assocs. v. WHUD Real Estate, Ltd. P'ship, 846 So. 2d 1194, 2003 Fla. App. LEXIS 7986 (Fla. 5th DCA

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2003).

141. Where a judge admitted to charges of public intoxication and inappropriate conduct of an intimate nature, the Judicial Qualifications Commission found insufficient evidence supporting other charges against the judge, and the Commission prevailed in showing that the judge’s conduct brought the judiciary into disrepute, the judge was not entitled to costs pursuant to Fla. R. Jud. Admin. 2.140(c) because he was not the prevailing party; the judge was not entitled to attorney fees pursuant to Fla. Stat. § 57.105 as such only applied to civil proceedings. Inquiry Concerning a Judge (Cope), 848 So. 2d 301, 2003 Fla. LEXIS 901 (Fla. 2003).

142. Surety was not entitled to recover any attorney’s fees because the contract between the general contractor and the subcontractor did not contemplate attorney’s fees for any entity other than the general contractor or the subcontractor. McCarthy Bros. Co. v. Tilbury Constr., Inc., 849 So. 2d 7, 2003 Fla. App. LEXIS 3062 (Fla. 1st DCA 2003).

143. Trial court abused its discretion by denying the general contractor’s motion for remittitur because the evidence indicated that the maximum allowable award was $ 192,155; and the reversal of the damages awarded in the liability appeal resulted in a provisional reversal of the attorney’s fees awarded to the subcontractor. McCarthy Bros. Co. v. Tilbury Constr., Inc., 849 So. 2d 7, 2003 Fla. App. LEXIS 3062 (Fla. 1st DCA 2003).

144. Fee award ordering an attorney to pay fees was improper because the attorney did not file the initial complaint in the action and there had been no determination that the initial complaint was frivolous, as required by Fla. Stat. § 57.105. Bisson v. Arellano, 844 So. 2d 648, 2003 Fla. App. LEXIS 1143 (Fla. 3rd DCA 2003).

145. Fee award ordering appellants’ attorney to pay fees was reversed because the attorney did not file the initial complaint in the action and there had been no determination that the initial complaint was frivolous as required by Fla. Stat. § 57.105 (1995). Bisson v. Arellano, 844 So. 2d 648, 2003 Fla. App. LEXIS 1143 (Fla. 3rd DCA 2003).

146. Trial court abused its discretion in finding that an eight-month delay after final judgment in a filing for attorney’s fees was reasonable. Bal Bay Realty, Ltd. v. Pepsomers Corp., 833 So. 2d 320, 2003 Fla. App. LEXIS 110 (Fla. 4th DCA 2003).

147. Trial court erred in awarding attorney’s fees to a subcontractor pursuant to Fla. Stat. § 57.105(1) where the trial court found that the injured party’s counsel acted reasonably in filing suit and the record revealed a lack of substantial, competent evidence to support the award. Cooke v. Custom Crete of Southwest Fla., Inc., 833 So. 2d 315, 2003 Fla. App. LEXIS 29 (Fla. 2nd DCA 2003).

148. Where a judgment had not been vacated pursuant to Fla. R. Civ. P. 1.540, the trial court could properly enter an attorney’s fee award under section Fla. Stat. § 57.105 during the pendency of appeal as the attorney did not show an entitlement to certiorari or support a claim of privileged information. Katz v. N.M.E. Hosps., Inc., 842 So. 2d 853, 2002 Fla. App. LEXIS 19150 (Fla. 4th DCA 2002).

149. Under the revision of Fla. Stat. § 57.105, an award of attorney’s fees is not limited to situations in which there is a complete absence of justiciable issues of law or fact; instead, fees are to be awarded if the party or its counsel knew or should have known that the claim or defense asserted was not supported by the facts or an application of then-existing law. Read v. Taylor, 832 So. 2d 219, 2002 Fla. App. LEXIS 17753 (Fla. 4th DCA 2002).

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150. Trial court erred in awarding attorney’s fees to a transaction broker under Fla. Stat. § 57.105 after dismissing the clients’ second amended complaint for the failure to state a cause of action; the clients may have had a breach of contract claim inasmuch as the broker’s obligations to the client under a Brokerage Relationship Disclosure were not merely gratuitous, and the clients may have had a negligence claim as the broker’s duties to the client as a transaction broker not only existed by virtue of the written agreement, but were codified in Fla. Stat. § 475.278. Read v. Taylor, 832 So. 2d 219, 2002 Fla. App. LEXIS 17753 (Fla. 4th DCA 2002).

151. Appeals court held in dissolution proceeding that as concerned appellate attorney’s fees, where no motion for attorney fees was made in the appellate court, a trial court was without jurisdiction to award the same, and this was true even when such fees were sought pursuant to Fla. Stat. § 57.105 (2001); and a trial court was also without jurisdiction to award trial level attorneys fees pursuant to § 57.105 for a domestic violence proceeding. Cisneros v. Cisneros, 831 So. 2d 257, 2002 Fla. App. LEXIS 17570 (Fla. 3rd DCA 2002).

152. Surety was not entitled to an award of attorney’s fees as the prevailing party pursuant to the contract between the city and the contractor and Fla. Stat. § 57.105(2) (now Fla. Stat. § 57.105(5)), because both contracting parties were at fault, and the trial judge had the discretion to determine that no party prevailed. Merchs. Bonding Co. v. City of Melbourne, 832 So. 2d 184, 2002 Fla. App. LEXIS 17177 (Fla. 5th DCA 2002).

153. Trial court erroneously awarded attorney’s fees to the prevailing party in an unsuccessful will contest, as the evidence, at the onset of litigation, raised a presumption of undue influence; since there was presumption of undue influence, it was axiomatic that the claim, when initially presented, was supported by the material facts necessary to establish the claim. Greenberg v. Van Dam, 833 So. 2d 810, 2002 Fla. App. LEXIS 16882 (Fla. 3rd DCA 2002).

154. Fla. Stat. § 57.105(1) clearly makes good faith an avoidance of the presumptive assessment of fees against both attorney and client, thus, fees must be assessed against counsel as provided by statute unless the attorney can show good faith. Andzulis v. Montgomery Rd. Acquisitions, Inc., 831 So. 2d 237, 2002 Fla. App. LEXIS 16051 (Fla. 5th DCA 2002).

155. Trial court erred by denying a husband and wife’s request for attorney fees under Fla. Stat. § 57.105(1) against an attorney and its client company, which filed an action against them; an equal portion of an attorney fees should have been assessed against the attorney and the client company where the company’s complaint was devoid of merit, and the attorney did not prove that he acted in good faith in the litigation. Andzulis v. Montgomery Rd. Acquisitions, Inc., 831 So. 2d 237, 2002 Fla. App. LEXIS 16051 (Fla. 5th DCA 2002).

156. The trial court erred in failing to assess an equal portion of an attorney fees award to the attorney for a company that filed a complaint devoid of merit, as the attorney failed to prove that he acted in good faith, a requirement the attorney needed to prove in order to avoid liability for the attorney’s fees. Andzulis v. Montgomery Rd. Acquisitions, Inc., 831 So. 2d 237, 2002 Fla. App. LEXIS 16051 (Fla. 5th DCA 2002).

157. Corporation was not entitled to attorney’s fees under Fla. Stat. § 57.105, where neither the stockholder’s action nor the stockholder’s subsequent appeal were without merit. Goldfisher v. Ivax Corp., 827 So. 2d 1110, 2002 Fla. App. LEXIS 15125 (Fla. 3rd DCA 2002).

158. In a product liability action where a tire manufacturer appealed from a nonfinal order denying its motion to dismiss for lack of personal jurisdiction, an award of attorney fees in favor of the complaint under Fla. Stat. § 57.105 on the complainant’s motion pursuant to Fla R. App. P. 9.400(b) was appropriate because the manufacturer and its attorneys knew or should have known that the jurisdictional argument was not supported by the material facts; the manufacturer’s appeal was plainly without

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merit and could not be sustained under any interpretation of the law. Bridgestone/Firestone, Inc. v. Herron, 828 So. 2d 414, 2002 Fla. App. LEXIS 14298 (Fla. 1st DCA 2002).

159. Public policy consideration underlying Fla. Stat. § 57.105(5) was to provide mutuality of attorney’s fee remedy in contract cases; thus, a trial court erred in holding that Florida law applied to a brokerage agreement, which provided that New York law governed agreement’s terms and arbitration. Walls v. Quick & Reilly, Inc., 824 So. 2d 1016, 2002 Fla. App. LEXIS 12535 (Fla. 5th DCA 2002).

160. When a contractor voluntarily dismissed an action, the subcontractor was deemed a prevailing party for purposes of attorney’s fees and since the subcontract provided a contractual basis for awarding such fees which applied to the subcontractor through Fla. Stat. § 57.105(5), and the fee request was timely and properly pleaded, the subcontractor was entitled to prevailing party attorney’s fees. Ajax Paving Indus. v. Hardaway Co., 824 So. 2d 1026, 2002 Fla. App. LEXIS 12527 (Fla. 2nd DCA 2002).

161. Trial court correctly denied defendant attorney’s fees as a prevailing party after plaintiff voluntarily dismissed its claim since the defendant could not raise a reciprocal claim for attorney’s fees for the first time in a post-dismissal motion, despite a contract provision between the parties providing for recovery of attorney’s fees; previous claims were brought under Fla. Stat. § 57.105. Concrete & Lumber Enters. Corp. v. Guar. Bus. Credit Corp., 829 So. 2d 247, 2002 Fla. App. LEXIS 12026 (Fla. 3rd DCA 2002).

162. Trial court abused its discretion in denying appellant residents’ motion for attorney’s fees and costs against appellee developers, who maintained a defense of lack of personal jurisdiction based on the long-arm statute after it was clear that the defense was wholly unsupported by the material facts of the case and the application of existing law; if developers’ counsel was aware of the developers’ local contacts, business relationships, and operations, attorney’s fees were to be levied against him or her personally. Gahn v. Holiday Prop. Bond, Ltd., 826 So. 2d 423, 2002 Fla. App. LEXIS 11308 (Fla. 2nd DCA 2002).

163. Attorney’s fees and costs should have been awarded against developers, who maintained a defense of lack of personal jurisdiction based on the long-arm statute after it was clear that the defense was wholly unsupported; if developers’ counsel was aware of the developers’ local contacts, business relationships, and operations, attorney’s fees were to be levied against him or her personally. Gahn v. Holiday Prop. Bond, Ltd., 826 So. 2d 423, 2002 Fla. App. LEXIS 11308 (Fla. 2nd DCA 2002).

164. Defendant who prevailed in civil suit was entitled to attorney’s fees for both the trial and the appeal because of the frivolous claims brought by the plaintiff in post-conviction motions for relief from judgment and disqualification of counsel; furthermore, the plaintiff’s counsel was also liable for the attorney’s fees award because of his improper tactical use of the motions. Freedom Commerce Ctr. Venture v. Ranson, 823 So. 2d 817, 2002 Fla. App. LEXIS 10117 (Fla. 1st DCA 2002).

165. Absent a surety bond, there was no statutory authority for the award of attorney fees; because the purchaser failed to appeal an order discharging its notice of lis pendens, the trial court properly awarded costs. Tampa Bay 1, L.L.C. v. Lorello Cypress Family L.P., 821 So. 2d 434, 2002 Fla. App. LEXIS 10090 (Fla. 2nd DCA 2002).

166. Shopping plaza association was entitled to attorney fees after a shopping plaza tenant voluntarily dismissed a suit against the association, as declaration the parties signed provided for attorney fees to the prevailing party in a suit. The association was entitled to an award of attorney fees under Fla. Stat. § 57.105(1),(3). Holiday Square Owners Ass'n v. Tsetsenis, 820 So. 2d 450, 2002 Fla. App. LEXIS 9766 (Fla. 5th DCA 2002).

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167. Shopping plaza association was entitled to attorney fees after a shopping plaza tenant voluntarily dismissed a suit against the association, as declaration the parties signed provided for attorney fees to the prevailing party in a suit. Fla. Stat. § 57.105(5) makes a unilateral contract clause for prevailing party attorney fees bilateral in effect. Holiday Square Owners Ass'n v. Tsetsenis, 820 So. 2d 450, 2002 Fla. App. LEXIS 9766 (Fla. 5th DCA 2002).

168. Shopping plaza association was entitled to attorney fees after a shopping plaza tenant voluntarily dismissed a suit against the association, as declaration the parties signed provided for attorney fees to the prevailing party in a suit. The association was entitled to an award of attorney fees under the reciprocity mandate of Fla. Stat. § 57.105(5), because attorney fees were provided for in the declaration, and the association was the prevailing party. Holiday Square Owners Ass'n v. Tsetsenis, 820 So. 2d 450, 2002 Fla. App. LEXIS 9766 (Fla. 5th DCA 2002).

169. Shopping plaza association was entitled to attorney’s fees after a shopping plaza tenant voluntarily dismissed a suit against the association; a declaration the parties signed provided for attorney’s fees to the prevailing party in a suit. Holiday Square Owners Ass'n v. Tsetsenis, 820 So. 2d 450, 2002 Fla. App. LEXIS 9766 (Fla. 5th DCA 2002).

170. Trial court erred in taking into account the indemnification, including attorney’s fees, of a party that moved for attorney’s fees when the trial court denied the party’s motion for attorney’s fees. O'Grady v. Potash, 824 So. 2d 904, 2002 Fla. App. LEXIS 7833 (Fla. 3rd DCA 2002).

171. Trial court erred in granting a county attorney’s fees under Fla. Stat. § 57.105 after plaintiff’s invasion of privacy and civil conspiracy claims were dismissed; failing to state a cause of action was not, in and of itself, a sufficient basis to support a finding that a claim was so lacking in merit as to justify an award of fees, and plaintiff’s amended complaint, while not stating a cause of action, did not reflect that the claims were so lacking in merit as to support an award of fees under Fla. Stat. § 57.105. Mason v. Highlands County Bd. of County Comm'rs, 817 So. 2d 922, 2002 Fla. App. LEXIS 6149 (Fla. 2nd DCA 2002).

172. Where a party has notice that an opponent claims entitlement to attorney fees and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement, that party waives any objection to the failure to plead a claim for attorney fees. Precision Tune Auto Care, Inc. v. Radcliffe, 815 So. 2d 708, 2002 Fla. App. LEXIS 5228 (Fla. 4th DCA 2002).

173. Party seeking attorney fees pursuant to Fla. Stat. § 57.105(5) must specifically plead entitlement to such fees; complaints, answers, and counterclaims are pleadings under Fla. R. Civ. P. 1.100(a), and a motion to dismiss is not a pleading. Precision Tune Auto Care, Inc. v. Radcliffe, 815 So. 2d 708, 2002 Fla. App. LEXIS 5228 (Fla. 4th DCA 2002).

174. Potential that one may be required to pay an opposing party’s attorney fees may often be determinative in a decision on whether to pursue a claim, dismiss it, or settle; for these reasons, a party may not recover attorney fees unless he has put the issue into play by filing a pleading seeking fees. Precision Tune Auto Care, Inc. v. Radcliffe, 815 So. 2d 708, 2002 Fla. App. LEXIS 5228 (Fla. 4th DCA 2002).

175. Claim for attorney fees, based on either statute or contract, must be pled, and a failure to do so constitutes a waiver of the claim; the policy behind the rule is to provide notice to the opposing party that attorney fees will be sought so that the opposing party might make an informed decision on whether to pursue a claim, dismiss it, or settle. Precision Tune Auto Care, Inc. v. Radcliffe, 815 So. 2d 708, 2002 Fla. App. LEXIS 5228 (Fla. 4th DCA 2002).

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176. Party was required to specifically plead its entitlement to attorney fees under Fla. Stat. § 57.105, and a general request for costs in the complaint is insufficient to raise the issue; further, a motion filed subsequent to the judgment in which the party sought attorney fees was improperly granted for failure to comply with the statutory requirement. Precision Tune Auto Care, Inc. v. Radcliffe, 815 So. 2d 708, 2002 Fla. App. LEXIS 5228 (Fla. 4th DCA 2002).

177. Trial court erred in awarding attorney’s fees to a franchisee which sued its franchisor where the franchisee pleaded in its complaint that it was entitled to costs, but failed to specifically plead that it was entitled to attorney’s fees, and where the franchisee waited to plead that it was entitled to attorney’s fees in a motion that was filed two weeks before trial; the franchisee should have obtained leave of court through a motion to amend its complaint, or obtained written consent of the franchisor. Precision Tune Auto Care, Inc. v. Radcliffe, 815 So. 2d 708, 2002 Fla. App. LEXIS 5228 (Fla. 4th DCA 2002).

178. Circuit court erred in imposing attorney’s fees where the law of the case doctrine did not apply, the appeal of the imposition of the attorney’s fees was not untimely, and the appeal in the underlying case was not frivolous. Lidsky Vaccaro & Montes, P.A. v. Morejon, 813 So. 2d 146, 2002 Fla. App. LEXIS 2981 (Fla. 3rd DCA 2002).

179. Fla. Stat. § 57.105 did not provide the basis for the affirmance of an award of attorney fees against an attorney where there was no finding that the attorney engaged in bad conduct by subpoenaing two attorneys; the court noted that there was no evidence that the suit was frivolous. Moakley v. Smallwood, 826 So. 2d 221, 2002 Fla. LEXIS 341 (Fla. 2002).

180. Trial court erred in applying a contingency fee multiplier where there was no contingency fee agreement and there was no risk of nonpayment; an insurance company was paying the attorney fees. Pompano Ledger, Inc. v. The Greater Pompano Chamber of Commerce, Inc., 802 So. 2d 438, 2001 Fla. App. LEXIS 17495 (Fla. 4th DCA 2001).

181. No longer does Fla. Stat. § 57.105 apply only to an entire action, it now applies to any claim or defense. Forum v. Boca Burger, Inc., 788 So. 2d 1055, 2001 Fla. App. LEXIS 6945 (Fla. 4th DCA 2001).

182. Because of the 1999 amendments to Fla. Stat. § 57.105, most of the old interpretations of Fla. Stat. § 57.105 as it was drafted before 1999 are no longer authoritative, and courts must now interpret and apply the text passed in 1999. Forum v. Boca Burger, Inc., 788 So. 2d 1055, 2001 Fla. App. LEXIS 6945 (Fla. 4th DCA 2001).

183. Defendant’s attorney breached his duty of candor under R. Regulating Fla. Bar 4-3.3 and the attorney and defendant were ordered to pay plaintiff’s attorney fees under Fla. Stat. § 57.105, where the attorney failed to advise a trial judge that plaintiff had a right under Fla. R. Civ. P. 1.190(a) to file an amended complaint and to have additional counsel without leave of court the instant it became apparent that the trial judge was acting under a misimpression that plaintiff did not have those rights. Forum v. Boca Burger, Inc., 788 So. 2d 1055, 2001 Fla. App. LEXIS 6945 (Fla. 4th DCA 2001).

184. Award of attorneys’ fees in favor of plaintiff was authorized by Fla. Stat. § 57.105 where defense counsel suggested to the trial court that the appearance of new counsel at a hearing on a motion to dismiss for failure to state a claim was somehow improper and further suggested that the court had power to disregard the filing of an amended complaint on the day of the hearing where no responsive pleading had been filed. Forum v. Boca Burger, Inc., 788 So. 2d 1055, 2001 Fla. App. LEXIS 6945 (Fla. 4th DCA 2001).

185. Trial court’s order that granted former husband’s motion for attorney fees pursuant to Fla. Stat. § 57.105 on former wife’s motion for rehearing was inappropriate because former wife’s motion for rehearing created a justiciable issue; under Fla. Stat. § 57.105, the trial court must find that the action was so clearly devoid of merit both on the facts and the law as to be completely

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untenable. Williams v. Daniel, 777 So. 2d 1179, 2001 Fla. App. LEXIS 1347 (Fla. 5th DCA 2001).

186. In a case where the clerk of court misunderstood an arrears order and erroneously relieved father of approximately $ 1,000 of his child support obligation, the trial court erred by ordering mother to pay father’s attorney’s fees because her motion for a rehearing had merit. Williams v. Daniel, 777 So. 2d 1179, 2001 Fla. App. LEXIS 1347 (Fla. 5th DCA 2001).

187. Where a nursing home had made an offer of judgment pursuant to Fla. Stat. § 768.79(1) to a patent’s relatives in a negligent care suit and ultimately prevailed at trial after the offer was refused, a trial court committed reversible error in denying the nursing home’s motion for attorney fees pursuant to Fla. Stat. § 400.023 as the prevailing party as defined in Fla. Stat. § 57.105, because Fla. Stat. § 57.105 permitted recovery of attorney’s fees only when the opposing party files a suit that is without justiciable issues of fact or law, and the legislative purpose of Fla. Stat. § 768.79 was to encourage the early settlement and termination of litigation in civil cases generally. National Healthcorp Ltd. Pshp. v. Close, 787 So. 2d 22, 2001 Fla. App. LEXIS 275 (Fla. 2nd DCA 2001).

188. Where an insurance company was awarded attorney’s fees accrued in defense of a post-judgment frivolous motion for rehearing pursuant to Fla. Stat. § 57.105(1), such award was proper although the motion was collateral to non-frivolous litigation. Preyer v. Aries Ins. Co., 774 So. 2d 958, 2001 Fla. App. LEXIS 464 (Fla. 1st DCA 2001).

189. Under Fla. Stat. § 57.105, the trial court can only award attorney fees to a defendant if plaintiff’s complaint was frivolous when filed, not if it becomes frivolous at some later point. National Continental Ins. Co. v. Barker, 773 So. 2d 648, 2000 Fla. App. LEXIS 16668 (Fla. 4th DCA 2000).

190. Where injured party sued two parties involved in an automobile accident, but was unable to find one of the parties, who was necessary to prove liability, the injured party voluntarily dismissed the lawsuit, and the trial court assessed attorney’s fees on the injured party. The court held that the trial court erred in concluding that there was no justiciable issue of law or fact raised by the complaint because the accident report would not have been admissible, and the injured party could not have foreseen that she would not be able to find one of the two parties involved in the accident. National Continental Ins. Co. v. Barker, 773 So. 2d 648, 2000 Fla. App. LEXIS 16668 (Fla. 4th DCA 2000).

191. Where when mother sought to have father held in contempt for disobeying a child support order, father then began making payments and the motion was dismissed, upon which mother filed a motion for attorney fees pursuant to Fla. Stat. § 57.105, which was granted, on appeal the court held it was error to grant mother’s motion for attorney fees for the contempt action because there was a justiciable issue of law at that hearing, as shown by father’s payment of child support after that proceeding was initiated. Florida Dep't of Revenue ex rel. Lucignani v. Lucignani, 775 So. 2d 996, 2000 Fla. App. LEXIS 16241 (Fla. 3rd DCA 2000).

192. Defendant’s failure to serve the notice of appeal and initial brief on the law firm that first represented plaintiff was fatal to her claim for attorney’s fees because after her claim against it was initially denied, due process required defendant to give notice to the law firm of her effort to overturn the order, which she failed to do; it was insufficient to serve the notice of appeal and brief on the former client. Alvarez, Armas & Borron, P.A. v. Heitman, 770 So. 2d 208, 2000 Fla. App. LEXIS 13516 (Fla. 3rd DCA 2000).

193. Where counsel for the party who prevailed in a probate action filed a motion for attorney’s fees based on an offer of judgment served on the losing party 22 days before the first scheduled trial date but more than 45 days before the actual trial date, it was an abuse of discretion for the trial court to impose attorney’s fee sanctions against the counsel personally under Fla. Stat. § 57.105, because the motion for fees was made before the appellate court had decided that an offer of settlement was

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untimely under Fla. R. Civ. P. 1.442(b) if made within 45 days of the initially scheduled trial date, and the motion was not frivolous or filed in bad faith. Brooks v. Hathaway (In re Estate of Hathaway), 768 So. 2d 525, 2000 Fla. App. LEXIS 11915 (Fla. 4th DCA 2000).

194. The trial court correctly assessed attorney fees against individuals, pursuant to Fla. Stat. § 57.105, for filing a frivolous appeal when it was clear that the position asserted by the individuals on appeal was devoid of merit and not supported by the overwhelming evidence established through nine years of litigation. Visoly v. Security Pac. Credit Corp., 768 So. 2d 482, 2000 Fla. App. LEXIS 10508 (Fla. 3rd DCA 2000).

195. Wife whose husband embezzled funds from his employer was entitled to attorney’s fees under Fla. Stat. § 57.105 because the employer had no factual basis to support his allegation that the wife had knowledge of the embezzlement and had even testified that the husband told him that the wife had no knowledge. Davis v. Bill Williams Air Conditioning & Heating, 765 So. 2d 114, 2000 Fla. App. LEXIS 6798 (Fla. 1st DCA 2000).

196. Appellants were entitled to recover their fees under statute because the trial court’s action in striking the pleadings as sham was tantamount to a finding that the action was frivolous, and the absence of justiciable issues triggered the entitlement to fees. Arellano v. Bisson, 761 So. 2d 365, 2000 Fla. App. LEXIS 3950 (Fla. 3rd DCA 2000).

197. A contractor, who successfully prevailed in a breach of contract action against Florida Department of Transportation, was denied attorney fees because Florida’s reciprocal attorney fee statute, Fla. Stat. § 57.105(2), did not apply as the action was not one against the bond which had a provision for recovery of attorney fees. Anderson Columbia Co. v. State, 744 So. 2d 1206, 1999 Fla. App. LEXIS 14836 (Fla. 1st DCA 1999).

198. In order to find a complete absence of a justiciable issue necessary for an award of attorney’s fees, the suit or defense must be so clearly devoid of merit both on the facts and the law as to be completely untenable. Florida Dep't of Revenue ex rel. D.H. v. Hannah, 745 So. 2d 1055, 1999 Fla. App. LEXIS 14599 (Fla. 3rd DCA 1999).

199. Purpose of Fla. Stat. § 57.105(1) is to discourage baseless claims in civil litigation by placing the price tag of attorney’s fee awards on the losing parties. Florida Dep't of Revenue ex rel. D.H. v. Hannah, 745 So. 2d 1055, 1999 Fla. App. LEXIS 14599 (Fla. 3rd DCA 1999).

200. Under Fla. Stat. § 57.105(1), a reasonable attorney’s fee award is available where a court finds that there was a complete absence of a justiciable issue. Florida Dep't of Revenue ex rel. D.H. v. Hannah, 745 So. 2d 1055, 1999 Fla. App. LEXIS 14599 (Fla. 3rd DCA 1999).

201. Pursuant to Fla. Stat. § 57.105(1), a father was not entitled to attorney fees in a paternity suit that was dismissed because it was not unreasonable for the Department of Revenue to rely on a grandmother’s statement regarding the paternity of the child before filing the suit. Florida Dep't of Revenue ex rel. D.H. v. Hannah, 745 So. 2d 1055, 1999 Fla. App. LEXIS 14599 (Fla. 3rd DCA 1999).

202. Defendant in a civil action was entitled to attorney fees for those claims for which there was no justiciable issue of law or fact to support any claim against defendant when the complaint was filed; although plaintiff filed a voluntary dismissal, attorney’s fees under Fla. Stat. § 57.105 were also proper. Froman v. Kirland, 746 So. 2d 1120, 1999 Fla. App. LEXIS 13217 (Fla. 4th DCA 1999).

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203. Debtor, a prevailing party in a bankruptcy dischargeability proceeding, was allowed to recover attorney fees through the enforcement of a loan contract that provided for such recovery by the prevailing party under Fla. Stat. § 57.105(2). Citizens First Nat'l Bank v. Hunter (In re Hunter), 243 B.R. 824, 35 Bankr. Ct. Dec. (LRP) 8, 1999 Bankr. LEXIS 1228 (Bankr. M.D. Fla. 1999).

204. When the record indicated a clear connection between judgment creditor and judgment debtor, including a substantial transfer of assets warranting the initiation of suit and discovery, even though discovery subsequently revealed that debtors were entitled to a judgment as a matter of law, it could not be said that creditor’s complaint was completely lacking in justiciable issues of law or fact at the time it was filed; therefore, pursuant to Fla. Stat. § 57.105(1), the trial court’s award of attorneys’ fees to debtor was inappropriate. H.J.J., Inc. v. Party Prods. II, Inc., 738 So. 2d 515, 1999 Fla. App. LEXIS 11024 (Fla. 3rd DCA 1999).

205. Despite a retainer agreement signed by attorney and client, which allowed attorney to recover her reasonable attorney’s fees and costs in enforcing a claim for attorney’s fees under the contract, the trial court acted within its discretion pursuant to Fla. Stat. § 57.105(2) in awarding attorney’s fees and costs to client. Rochlin v. Cunningham, 739 So. 2d 1215, 1999 Fla. App. LEXIS 10460 (Fla. 4th DCA 1999).

206. Trial court abused its discretion when it awarded attorney fees to former wife, pursuant to Fla. Stat. § 57.105(1), because former husband’s complaint to domesticate and modify the prior state’s child support award presented justiciable issues of law or fact and was not untenable or frivolous in light of former wife’s remarriage, domicile in a new state and new employment. Department of Revenue ex rel. Skalniak v. Dey, 737 So. 2d 635, 1999 Fla. App. LEXIS 10048 (Fla. 1st DCA 1999).

207. In an action for breach of a lease agreement, an award of attorney fees pursuant to Fla. Stat. § 57.105(2) was affirmed because the request was based on the contract, was well pleaded in response to the complaint, and the adverse party had notice of the request for attorneys fees. Tri-County Dev. Group, Inc. v. C.P.T., Inc., 740 So. 2d 573, 1999 Fla. App. LEXIS 9292 (Fla. 4th DCA 1999).

208. Prevailing party in a lease dispute was entitled to recover attorney fees, where it claimed in its pleading that it was seeking fees pursuant to Fla. Stat. § 57.105, although it did not specify whether fees were being sought for either lack of justiciable issue of either law or fact under Fla. Stat. § 57.105(1) or from the contract under Fla. Stat. § 57.105(2). Tri-County Dev. Group, Inc. v. C.P.T., Inc., 740 So. 2d 573, 1999 Fla. App. LEXIS 9292 (Fla. 4th DCA 1999).

209. Guardian of a nursing home resident was not entitled to attorney fees under the reciprocal provisions of Fla. Stat. § 57.105(2), where the guardian prevailed on the nursing home’s action against him for payment of the resident’s fees pursuant to a contract that provided for the award of attorney fees to the nursing home if it were a prevailing party, but where the guardian signed the contract solely in his capacity as a guardian. Hanna v. Beverly Enterprises-Florida, 738 So. 2d 424, 1999 Fla. App. LEXIS 9072 (Fla. 4th DCA 1999).

210. Where a trial court denied appellants’ Fla. Stat. § 57.105(2) motion for attorney fees, appellees were determined to be the “prevailing party” and appellants were not entitled to costs under Fla. Stat. § 57.041. Hall v. Humana Hosp. Daytona Beach, 733 So. 2d 596, 1999 Fla. App. LEXIS 7836 (Fla. 5th DCA 1999).

211. Attorney fees under Fla. Stat. § 57.105 could be awarded to fabric producer and its insurer in a claim against airline for damages arising from delivery of ruined goods as long as, when combined with the award of damages, the entire amount did not exceed the damages limitation imposed by the Warsaw Convention, 49 U.S.C.S. § 1502. American Airlines, Inc. v.

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American Home Assur. Co., 731 So. 2d 810, 1999 Fla. App. LEXIS 5404 (Fla. 3rd DCA 1999).

212. Mortgagors were prevailing parties entitled to an award of attorney’s fees where mortgagee voluntarily dismissed its foreclosure action and the mortgage note provided for attorney’s fees in the event of a default. Landry v. Countrywide Home Loans, Inc., 731 So. 2d 137, 1999 Fla. App. LEXIS 5309 (Fla. 1st DCA 1999).

213. A party sued for indemnification was entitled to attorney fees under Fla. Stat. § 57.105(1) based on the trial court’s finding that no justiciable issue of fact or law existed when an insurer filed suit against the party for indemnity. Indemnity Ins. Co. of N. Am. v. Chambers, 732 So. 2d 1141, 1999 Fla. App. LEXIS 3136 (Fla. 4th DCA 1999).

214. Fla. Stat. § 57.105 requires an award of attorney fees only if the claim or defense is so totally devoid of merit as to be frivolous. Department of Health v. Curry, 722 So. 2d 874, 1998 Fla. App. LEXIS 14792 (Fla. 1st DCA 1998).

215. Mother was not entitled to attorney fees under Fla. Stat. § 57.105(1) although she prevailed on her claim that her child was exempt from immunization requirement for school purposes because the mother sent written objections based on religious reasons, where the Department of Health’s denial of the exemption pending an administrative hearing was not patently frivolous. Department of Health v. Curry, 722 So. 2d 874, 1998 Fla. App. LEXIS 14792 (Fla. 1st DCA 1998).

216. Attorney’s fees for the purposes of Fla. Stat. § 57.105 are not available where justiciable issues are raised by both parties. Sheri Smallwood, Chtd. v. Perez, 735 So. 2d 490, 1998 Fla. App. LEXIS 17274 (Fla. 3rd DCA 1998), modified, 735 So. 2d 495, 1999 Fla. App. LEXIS 11970 (Fla. 3rd DCA 1999).

217. Defendant town’s motion for attorney fees made based on an earlier version of Fla. Stat. § 57.105 was denied properly because plaintiff employee’s complaint raised a justiciable issue of defamation given that at the time of filing it was unknown whether or not the town would take issue with the employee’s failure to comply with the pre-suit notice requirement and whether or not the town would assert the affirmative defense of sovereign-immunity. Stewart v. Town of Zolfo Springs, 1998 U.S. Dist. LEXIS 20914 (M.D. Fla. 1998).

218. Pursuant to an earlier version of Fla. Stat. § 57.105, the court must award attorney fees and costs to the prevailing party where it finds that there was a complete absence of a justiciable issue of either law or fact raised by the complaint or defense of the losing party. Stewart v. Town of Zolfo Springs, 1998 U.S. Dist. LEXIS 20914 (M.D. Fla. 1998).

219. Defendant town’s motion for attorney fees made based on Fla. Stat. § 57.105 was denied properly because plaintiff employee’s complaint raised a justiciable issue of defamation given that at the time of filing it was unknown whether or not the town would take issue with the employee’s failure to comply with the pre-suit notice requirement and whether or not the town would assert the affirmative defense of sovereign-immunity. Stewart v. Town of Zolfo Springs, 1998 U.S. Dist. LEXIS 20914 (M.D. Fla. 1998).

220. In determining whether or not claims are justiciable under Fla. Stat. § 57.105, the courts should evaluate the claims as they respectively existed at the time of filing. Stewart v. Town of Zolfo Springs, 1998 U.S. Dist. LEXIS 20914 (M.D. Fla. 1998).

221. Pursuant to Fla. Stat. § 57.105, the court must award attorney fees and costs to the prevailing party where it finds that there was a complete absence of a justiciable issue of either law or fact raised by the complaint or defense of the losing party.

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Stewart v. Town of Zolfo Springs, 1998 U.S. Dist. LEXIS 20914 (M.D. Fla. 1998).

222. Despite underlying motives to re-establish a relationship with his former wife, former husband’s action litigating rights of visitation and shared parental responsibility for children contained a justiciable issue of law or fact, and an award of attorney’s fees pursuant to Fla. Stat. § 57.105 was inappropriate. Depadova v. Depadova, 717 So. 2d 147, 1998 Fla. App. LEXIS 11534 (Fla. 5th DCA 1998).

223. Where mortgage and note made no provision for attorney’s fees and costs, the borrowers were not required to pay attorney’s fees and cost pursuant to Fla. Stat. § 57.105 to the lender as the prevailing party. Edrisi v. Sarnoff, 715 So. 2d 1124, 1998 Fla. App. LEXIS 10783 (Fla. 3rd DCA 1998).

224. Under Fla. Stat. § 57.105(1), the mere failure to comply with presuit notice does not in and of itself allow an award of attorney’s fees. Widmer v. Caldwell, 714 So. 2d 1128, 1998 Fla. App. LEXIS 8478 (Fla. 1st DCA 1998).

225. Circuit court acting in its appellate capacity did not have authority to impose fees and costs pursuant to Fla. Stat. § 57.105(1) in favor of an aggrieved motorist because even though the Florida Department of Highway Safety and Motor Vehicles did not contest motorist’s petition to reinstate his license, the Department’s administrative decision to suspend the license carries with it a presumption of correctness that necessarily involves the advancement of justiciable issues. Department of Highway Safety & Motor Vehicles v. Salter, 710 So. 2d 1039, 1998 Fla. App. LEXIS 5923 (Fla. 2nd DCA 1998).

226. Attorney who was assessed attorney’s fees after he had litigated a claim for four years that had previously been struck down by the trial court in another action as a sham could not claim that he had brought the claim in good faith under Fla. Stat. § 57.105. Security Pac. Credit Corp. v. Oasis Plaza Corp., 714 So. 2d 1039, 1998 Fla. App. LEXIS 5583 (Fla. 3rd DCA 1998).

227. Attorneys who, without their client’s knowledge, misrepresented their client’s right to insurance funds held by a court, were liable for the attorney fees of the insured and the lienholder of an insured plane, pursuant to Fla. Stat. § 57.105(1), although the client was not liable. Avemco Ins. Co. v. Tobin, 711 So. 2d 128, 1998 Fla. App. LEXIS 4724 (Fla. 4th DCA 1998), rev'd, in part, 804 So. 2d 369, 2001 Fla. App. LEXIS 13425 (Fla. 4th DCA 2001).

228. Client’s exoneration does not have the effect of insulating his lawyer from attorney fees under Fla. Stat. § 57.105. Avemco Ins. Co. v. Tobin, 711 So. 2d 128, 1998 Fla. App. LEXIS 4724 (Fla. 4th DCA 1998), rev'd, in part, 804 So. 2d 369, 2001 Fla. App. LEXIS 13425 (Fla. 4th DCA 2001).

229. Under Fla. Stat. § 57.105, an attorney can become “party” by asserting or defending his own personal interest in litigation, as, for example, by bringing the attorney’s personal claim for a charging lien against a recovery in the litigation. Avemco Ins. Co. v. Tobin, 711 So. 2d 128, 1998 Fla. App. LEXIS 4724 (Fla. 4th DCA 1998), rev'd, in part, 804 So. 2d 369, 2001 Fla. App. LEXIS 13425 (Fla. 4th DCA 2001).

230. Attorneys who, without their client’s knowledge, misrepresented their client’s right to insurance funds held by a court, were liable for the attorney fees of the insure and the lienholder of an insured plane, pursuant to Fla. Stat. § 57.105(1), although the client was not liable. Avemco Ins. Co. v. Tobin, 711 So. 2d 128, 1998 Fla. App. LEXIS 4724 (Fla. 4th DCA 1998), rev'd, in part, 804 So. 2d 369, 2001 Fla. App. LEXIS 13425 (Fla. 4th DCA 2001).

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231. Attorneys who represented the lessee of a destroyed airplane were liable for the attorney’s fees of a lienholder where attorneys withdrew insurance funds held in the trial court’s registry as their fee without their client’s knowledge or permission. Avemco Ins. Co. v. Tobin, 711 So. 2d 128, 1998 Fla. App. LEXIS 4724 (Fla. 4th DCA 1998), rev'd, in part, 804 So. 2d 369, 2001 Fla. App. LEXIS 13425 (Fla. 4th DCA 2001).

232. In an action against a boat seller by a customer who alleged that the seller failed to deliver a boat conforming to the sales contract, a trial court erred in awarding attorney fees to the customer pursuant to Fla. Stat. § 57.105(1), because the seller’s filing of a general denial and raising no issues of any kind in response to the customer’s complaint was not clearly devoid of merit or lacking in substance so as to merit the award of attorney fees to the customer; the statute permitted the award of attorney fees to the prevailing party when a court found that there was a complete absence of a justiciable issue of either law or fact raised by the complaint or defense of the losing party. Sunshine Boating Ctr. v. Heuer, 709 So. 2d 625, 1998 Fla. App. LEXIS 3858 (Fla. 4th DCA 1998).

233. Trial court erred in granting attorney’s fees in favor of a bank and against investors under Fla. Stat. § 57.105(2) in a subrogation action brought by the investors because the fees were based on a contract provision between the bank and debtor, to which contract the investors were not a party; the case was remanded, however, to determine the bank’s entitlement to attorney’s fees under Fla. Stat. § 768.79(1) because the bank had prevailed, following an offer of judgment made to the investors. Stewart v. Tasnet, Inc., 718 So. 2d 820, 1998 Fla. App. LEXIS 3769 (Fla. 2nd DCA 1998).

234. Seller’s answer consisting of a general denial of purchaser’s complaint for failure to deliver a boat that conformed to a sales contract did not support an award of attorney’s fees to purchaser on the ground that the answer failed to assert a justiciable issue of law or fact. Sunshine Boating Ctr. v. Heuer, 709 So. 2d 625, 1998 Fla. App. LEXIS 3858 (Fla. 4th DCA 1998).

235. Landlord, who prevailed in an action against tenant for damages for breaching the lease agreement by failing to return the premises in good and tenantable condition, was not entitled to an award of attorney’s fees under Fla. Stat. § 57.105(1), which provides for an attorney’s fee award to a prevailing party where the court finds there was a complete absence of a justiciable issue of law or fact raised by the losing party, because the trial court did not make such a finding. Florida Dep't of Health & Rehabilitative Servs. v. Morse, 708 So. 2d 640, 708 So. 2d 640n, 1998 Fla. App. LEXIS 3190 (Fla. 3rd DCA 1998).

236. Where mortgagors prevailed in mortgagors’ suit to foreclose a mortgage, the mortgagors were not entitled to attorney’s fees under the attorney’s fee provision in the mortgage note because that provision only provided for an award of fees if the mortgagees prevailed and was not reciprocal by its terms, and Fla. Stat. § 57.105(2) did not operate to make the provision in the mortgage reciprocal because the mortgage note predated the statute. Clearman v. Dalton, 708 So. 2d 324, 1998 Fla. App. LEXIS 2956 (Fla. 5th DCA 1998).

237. Attorney fees awarded based on Fla. Stat. § 57.105 to attorneys representing an heir were not justified where there was a justiciable issue due to the uncertainty of the application of recent changes in the law. Fla. Stat. § 57.105 fees could only be awarded in cases where there was a complete absence of a justiciable issue of either law or fact raised by the losing party. Bitterman v. Bitterman, 714 So. 2d 356, 1998 Fla. LEXIS 481 (Fla. 1998), cert. denied, 525 U.S. 1187, 119 S. Ct. 1133, 143 L. Ed. 2d 126, 1999 U.S. LEXIS 1690 (U.S. 1999).

238. Attorney fees awarded based on Fla. Stat. § 57.105 to attorneys representing an heir were not justified where there was a justiciable issue due to the uncertainty of the application of recent changes in the law. Section 57.105 fees could only be awarded in cases where there was a complete absence of a justiciable issue of either law or fact raised by the losing party. Bitterman v. Bitterman, 714 So. 2d 356, 1998 Fla. LEXIS 481 (Fla. 1998), cert. denied, 525 U.S. 1187, 119 S. Ct. 1133, 143 L.

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Ed. 2d 126, 1999 U.S. LEXIS 1690 (U.S. 1999).

239. Where one who was not a party to the condominium purchase and sale contract, which provided that the prevailing party in any arbitration or litigation arising out of the contract should be entitled to recover attorney’s fees, made an aborted attempt to become a party plaintiff in the lawsuit, the amount of fees awarded against him should be limited to that amount of time attributable to his attempt. Kelly v. Tworoger, 705 So. 2d 670, 1998 Fla. App. LEXIS 616 (Fla. 4th DCA 1998).

240. An award of fees pursuant to Fla. Stat. § 57.105 is only appropriate where the claims are frivolous or entirely devoid of even arguable substance; a fee award under Fla. Stat. § 57.105 is not authorized unless the plaintiff’s action was frivolous at its inception. Mazzorana v. Mazzorana, 703 So. 2d 1187, 1997 Fla. App. LEXIS 14585 (Fla. 3rd DCA 1997).

241. Couple who were legally stopped at a yield sign and who were struck from behind and subsequently sued for negligence by the driver who struck them were entitled to attorney’s fees because the negligence action was so clearly devoid of merit on both facts and law as to be completely untenable. Davis v. Christmas, 705 So. 2d 38, 1997 Fla. App. LEXIS 13365 (Fla. 3rd DCA 1997).

242. Attorney’s fees were improperly awarded to defendant because the court failed to make a specific finding that there was a complete absence of a justiciable issue of either law or fact raised by plaintiffs; the assessment of attorney’s fees without such a finding was technically deficient. Fernandez v. Chiro Risk Mgmt., 700 So. 2d 65, 1997 Fla. App. LEXIS 10703 (Fla. 2nd DCA 1997).

243. Because the filing of appellant’s initial complaint was not completely untenable, attorney’s fees should not have been awarded to appellees under Fla. Stat. § 57.105 even though there was a misjoinder of derivative and individual claims in such complaint; reversal was also required because the orders granting entitlement to the fees were technically deficient in that neither contained any language expressly finding that there was a complete absence of a justiciable issue of either law and fact raised by the complaint. Haas v. Roe, 696 So. 2d 1254, 1997 Fla. App. LEXIS 7250 (Fla. 2nd DCA 1997).

244. Because Fla. Stat. § 627.727(6) did not limit how the joinder of a tortfeasor and an underinsured motorist carrier could occur, an insured’s attempt to join its underinsured motorist carrier in the insured’s action against a tortfeasor was not so devoid of merit as to have warranted the award of attorney’s fees to the carrier under Fla. Stat. § 57.105. Young v. Dharamdass, 695 So. 2d 828, 1997 Fla. App. LEXIS 6248 (Fla. 4th DCA 1997).

245. Insurer’s award of attorney’s fees was not warranted under Fla. Stat. § 57.105 because insured’s attempt to join insurer in insured’s action against a tortfeasor was not so devoid of merit as to have warranted the award of fees. Young v. Dharamdass, 695 So. 2d 828, 1997 Fla. App. LEXIS 6248 (Fla. 4th DCA 1997).

246. An award of attorney’s fees against plaintiffs was improper under Fla. Stat. § 57.105 where plaintiffs’ claim alleging breach of a partnership agreement was not completely devoid of any justiciable issues. Chaiken v. Suchman, 694 So. 2d 115, 1997 Fla. App. LEXIS 5852 (Fla. 3rd DCA 1997).

247. As a prerequisite to an award of attorney’s fees under Fla. Stat. § 57.105, a court must find a complete absence of a justiciable issue of either law or fact raised by the losing party, and a court’s conclusion that there is a total lack of a justiciable issue is appropriate where the attempt to create a controversy is frivolous. The definition of “frivolous appeal” is the most analogous to a definition of the term “frivolous” for this determination. Simkins Indus. v. Lawyers Title Ins. Corp., 696 So. 2d

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384, 1997 Fla. App. LEXIS 5563 (Fla. 3rd DCA 1997).

248. In order to be eligible for attorney’s fees under Fla. Stat. § 57.105, the cause of action must have been frivolous at its inception. Simkins Indus. v. Lawyers Title Ins. Corp., 696 So. 2d 384, 1997 Fla. App. LEXIS 5563 (Fla. 3rd DCA 1997).

249. Where an insured party filed suit against a title insurer and its agent, and where the insurer and the agent successfully raised the statute of limitations that was contained in Fla. Stat. § 95.031 as an affirmative defense and were awarded summary judgment, and where the trial court also awarded attorney’s fees to the insurer and the agent pursuant to Fla. Stat. § 57.105, the appellate court reversed the attorney’s fee awards because the determination of when the cause of action accrued, for the purposes of the statute of limitations, was not so clear as to render the suit frivolous at its inception for purposes of granting attorney’s fees under ch. 57.105. Although the affirmative defense of statute of limitations was timely raised, the insurer and the agent conducted discovery for two years before filing their summary judgment motion, and it was inconceivable that such intensive and prolonged discovery and preparation would have been necessary to establish that the insured party’s cause of action was clearly untenable or that its insufficiency was so manifest on a bare inspection of the record that its character could have been determined without argument or research; moreover, the fact that subsequent discovery established that there was no justiciable issue did not justify the awards. Simkins Indus. v. Lawyers Title Ins. Corp., 696 So. 2d 384, 1997 Fla. App. LEXIS 5563 (Fla. 3rd DCA 1997).

250. Cause of action on a policy of title insurance was not frivolous at its inception, as demonstrated by the two years of discovery required by defendants before defendants could conclude that plaintiff’s action was barred by the statute of limitations, and thus defendants were not entitled to attorney’s fees under Fla. Stat. § 57.105 despite having prevailed at summary judgment. Simkins Indus. v. Lawyers Title Ins. Corp., 696 So. 2d 384, 1997 Fla. App. LEXIS 5563 (Fla. 3rd DCA 1997).

251. Where a county successfully defended against the claims of an “adult entertainment establishment” for declaratory and injunctive relief, the fact that the trial court ruled in the county’s favor indicates that its defenses were not frivolous but had merit when they were presented, and the “adult entertainment establishment” was not entitled to an award of attorney’s fees. Playtime of Brevard v. Board of County Comm'rs, 687 So. 2d 954, 1997 Fla. App. LEXIS 1019 (Fla. 5th DCA 1997).

252. A claim or defense is frivolous so as to justify an award of attorney’s fees only if, at the time it is presented, it is so clearly devoid of merit both on the facts and the law as to be completely untenable, i.e., if the court finds that there is a complete absence of a justiciable issue of either law or fact raised by the complaint or defense of the losing party. Playtime of Brevard v. Board of County Comm'rs, 687 So. 2d 954, 1997 Fla. App. LEXIS 1019 (Fla. 5th DCA 1997).

253. In a strict liability action against a hospital, where the hospital was the prevailing party, an award of attorney fees to the hospital under Fla. Stat. § 766.104(1) and Fla. Stat. § 766.206(2) was reversed because the statutes applied only to medical negligence actions and not to strict liability actions. The trial court specifically declined to make any finding whether there was a complete absence of a justiciable issue, warranting attorney fees under Fla. Stat. § 57.105, and the appellate court could not make such a finding in the first instance on appeal. Kurzweil v. Larkin Hosp. Operating Co., 684 So. 2d 901, 1996 Fla. App. LEXIS 13374 (Fla. 3rd DCA 1996).

254. In a strict liability action against a hospital for negligent breast implants, where the hospital was the prevailing party, an awrd of attorney fees to the hospital under Fla. Stat. §§ 766.104(1) and 766.206(2) was reversed because the statutes applied only to medical negligence actions and not to strict liability actions. The trial court specifically declined to make any finding whether there was a complete absence of a justiciable issue, warranting attorney fees under Fla. Stat. § 57.105, and the appellate court could not make such a finding in the first instance on appeal. Kurzweil v. Larkin Hosp. Operating Co., 684 So.

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2d 901, 1996 Fla. App. LEXIS 13374 (Fla. 3rd DCA 1996).

255. Trial court erred in awarding prejudgment interest to buyer where guarantor breached contract to sell a fishing boat and should only have held guarantor liable for the dollar amount specified in the guarantee; attorney’s fees under Fla. Stat. § 57.105 could not be awarded because buyer failed to make the argument in a timely fashion. Weigert v. Trade Wind Ventures, 685 So. 2d 962, 1996 Fla. App. LEXIS 13409 (Fla. 3rd DCA 1996).

256. In an action brought by a landowner to quiet title to a parcel of land that the Florida Department of Transportation claimed under a right-of-way, the trial court properly ordered the Department to pay a landowner’s attorney’s fees pursuant to Fla. Stat. § 57.105(1), because there was no justiciable issue of law or fact raised by the Department’s affirmative defense based on Fla. Stat. § 95.361, where the Department stipulated that a tax deed conveyed the property at issue to the landowner’s predecessor in interest, the Department failed to make a good faith effort to determine whether the tax deed had conveyed the property before asserting a ch. 95.361 defense, and the Department could have discerned from the available information that the tax deed had conveyed the property and that its ch. 95.361 defense was untenable. DOT v. James, 681 So. 2d 886, 1996 Fla. App. LEXIS 11088 (Fla. 3rd DCA 1996).

257. A property owner was entitled to attorney’s fees pursuant to Fla. Stat. § 57.105(1) after he prevailed in a dispute with state transportation department involving a right of way conveyed to a previous owner in a tax deed. DOT v. James, 681 So. 2d 886, 1996 Fla. App. LEXIS 11088 (Fla. 3rd DCA 1996).

258. In an action against a contractor to levy on a performance bond brought by a subcontractor, where both parties agreed to submit the issue of attorney fees to arbitration along with the substantive issues on damages, a trial court committed reversible error by awarding attorney fees to the subcontractor as the prevailing party under Fla. Stat. § 57.105, where the arbitrator had only awarded the contractor a credit against the award, but had not made an express finding that the subcontractor was the prevailing party. Robert Gay Constr. Co. v. CECO Bldg. Sys., 680 So. 2d 1124, 1996 Fla. App. LEXIS 10766 (Fla. 1st DCA 1996).

259. Under Fla. Stat. § 772.104, a defendant is entitled to reasonable attorney’s fees upon a finding that the claimant raised a civil RICO claim that was without substantial factual or legal support; this standard is less strict than that contained in Fla. Stat. § 57.105(1), which requires a complete absence of a justiciable issue of either law or fact. Hartford Ins. Co. v. Miller, 681 So. 2d 301, 1996 Fla. App. LEXIS 10293 (Fla. 3rd DCA 1996).

260. Because a case is terminated by a voluntary dismissal, either with or without prejudice, a defendant’s entitlement to fees is not eliminated under Fla. Stat. § 57.105 or Fla. Stat. § 768.79. Special's Trading Co. v. International Consumer Corp., 679 So. 2d 369, 1996 Fla. App. LEXIS 9750 (Fla. 4th DCA 1996), overruled, MX Invs. v. Crawford, 700 So. 2d 640, 1997 Fla. LEXIS 1357 (Fla. 1997).

261. While a litigant did not have to plead entitlement to attorney’s fees prior to judgment, the lapse of 19 months between the conclusion of all litigation and the prevailing party’s request for fees constituted an unreasonable delay, and the party was not entitled to claim fees under Fla. Stat. § 57.105. National Envtl. Prods. v. Falls, 678 So. 2d 869, 1996 Fla. App. LEXIS 8864 (Fla. 4th DCA 1996).

262. Award of attorney fees under Fla. Stat. § 57.105 was only proper where an entire action was clearly lacking in merit and entirely devoid of even arguable substance as to be completely untenable. Accordingly, a town was not entitled to attorney fees where the taxpayers’ claim, which alleged misconduct by a town in the procedures it employed in retaining a law firm for the defense of a lawsuit, was not so frivolous and completely untenable that the taxpayers and their attorney should be punished for

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pursuing the action. Brockway v. Town of Golfview, 675 So. 2d 699, 1996 Fla. App. LEXIS 6682 (Fla. 4th DCA 1996).

263. In a lawsuit challenging the methods and procedures used by a municipality in contracting a law firm to defend a lawsuit, the trial court improperly awarded attorneys fees pursuant to Fla. Stat. § 57.105 because the action was not clearly lacking in merit and devoid of even arguable substance as to be completely untenable. Brockway v. Town of Golfview, 675 So. 2d 699, 1996 Fla. App. LEXIS 6682 (Fla. 4th DCA 1996).

264. When the failure of a commercial lease was due to the fault of both lessor and lessees, the trial court could refuse to declare a prevailing party under the contract and could deny a motion for prevailing party attorney’s fees pursuant to Fla. Stat. § 57.105(2). KCIN, Inc. v. Canpro Invs., 675 So. 2d 222, 1996 Fla. App. LEXIS 5927 (Fla. 2nd DCA 1996).

265. Denial of attorney’s fees to defendants was proper after plaintiff voluntarily dismissed its complaint because even though under Fla. Stat. § 57.105 a party was not required to have pled specifically a request for attorney’s fees in order to have been entitled to the fees, and defendants had not pled a claim for attorney’s fees prior to the filing of plaintiff’s voluntary dismissal, there was a justiciable issue in plaintiff’s case, so that the denial of attorney’s fees under Fla. Stat. § 57.105 was correct. Bruce v. Barcomb, 675 So. 2d 219, 1996 Fla. App. LEXIS 5930 (Fla. 2nd DCA 1996).

266. In denying defendant’s request for fees for successfully defending against a civil theft claim based on a finding that plaintiff’s suit was not frivolous, the trial court erroneously applied the frivolous suit standard of Fla. Stat. § 57.105 instead of the standard under the civil theft statute. Consequently, under Fla. Stat. § 772.104 and Fla. Stat. § 772.11, defendant was entitled to reasonable attorney fees incurred upon a finding that plaintiff raised the civil theft claim without substantial factual or legal support. Bronson v. Bronson, 685 So. 2d 994, 1996 Fla. App. LEXIS 13458 (Fla. 5th DCA 1996).

267. In denying defendant’s request for fees for successfully defending against a civil theft claim based on a finding that plaintiff’s suit was not frivolous, the trial court erroneously applied the frivolous suit standard of Fla. Stat. § 57.105 instead of the standard under the civil theft statute. Consequently, under Fla. Stat. §§ 772.104, 772.10, and 772.11, defendant was entitled to reasonable attorney fees incurred upon a finding that plaintiff raised the civil theft claim without substantial factual or legal support. Bronson v. Bronson, 685 So. 2d 994, 1996 Fla. App. LEXIS 13458 (Fla. 5th DCA 1996).

268. Townhouse unit owner was awarded attorney fees because he was the prevailing party in a suit against his townhouse association who arbitrarily denied unit owner’s request for permission to install screening on the front of his townhouse. Jakobi v. Kings Creek Village Townhouse Ass'n, 665 So. 2d 325, 1995 Fla. App. LEXIS 12996 (Fla. 3rd DCA 1995).

269. Trial court improperly denied a townhouse unit owner attorney’s fees under Fla. Stat. § 57.105 as a prevailing party in the townhouse unit owner’s suit against his townhouse association because § 57.105 mandated that contractual attorney’s fees provisions be reciprocal; the 1992 townhouse deed transfer to the owner constituted a novation of the bylaws and declaration of covenants and restrictions. Jakobi v. Kings Creek Village Townhouse Ass'n, 665 So. 2d 325, 1995 Fla. App. LEXIS 12996 (Fla. 3rd DCA 1995).

270. There is no statutory basis for awarding costs and attorney’s fees for attorneys’ time spent litigating the amount of attorney’s fees under Fla. Stat. § 57.105(1). Eisman v. Ross, 664 So. 2d 1128, 1995 Fla. App. LEXIS 12691 (Fla. 3rd DCA 1995).

271. Trial court could not award attorney’s fees and costs pursuant to Fla. Stat. § 57.105 to shareholder who had been granted summary judgment from a lawsuit on grounds that a release covered his liability because summary judgment should not have

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been granted. Green v. Callahan, 664 So. 2d 21, 1995 Fla. App. LEXIS 12301 (Fla. 4th DCA 1995).

272. Where a trial court granted a party leave to file an amended complaint, the failure to state a cause of action was not sufficient, in and of itself, to support a finding that a claim was so lacking in merit as to justify an award of attorney’s fees under Fla. Stat. § 57.105(1). Westwood Community Two Ass'n v. Lewis, 662 So. 2d 1011, 1995 Fla. App. LEXIS 11946 (Fla. 4th DCA 1995).

273. For a court to award attorney’s fees under Fla. Stat. § 57.105, the action must be so devoid of merit both on the facts and the law as to be completely untenable; the purpose of the law is to discourage baseless claims, stonewall defenses, and sham appeals in civil litigation. Therefore, an individual who wrote a letter to a county commissioner criticizing the actions of an animal control director in a highly publicized case was entitled to attorney’s fees after the director dismissed her defamation complaint against the individual. Demby v. English, 667 So. 2d 350, 1995 Fla. App. LEXIS 11309 (Fla. 1st DCA 1995).

274. Individual was entitled to recover attorney’s fees from an animal control director who filed a defamation suit and dismissed the complaint where the suit was based on the individual’s writing of a letter critical of the animal control director to a county commissioner after a great deal of publicity surrounding the animal control director’s declaration that a dog was dangerous and was to be euthanized; the animal control director was a public official and the individual’s letter concerning official acts on a public matter were qualifiedly privileged, non-actionable opinion that was constitutionally protected. Demby v. English, 667 So. 2d 350, 1995 Fla. App. LEXIS 11309 (Fla. 1st DCA 1995).

275. Gambler was not entitled to attorney’s fees after a casino voluntarily dismissed its action to enforce gambling debts because the casino attempted a good faith, soundly-based, and unaddressed argument to change the existing law regarding the enforcement of gambling debts. Carnival Leisure Indus. v. Holzman, 660 So. 2d 410, 1995 Fla. App. LEXIS 9909 (Fla. 4th DCA 1995).

276. The mutuality provision of Fla. Stat. § 57.105 did not allow wife to collect attorney’s fees pursuant to a contract for hospital services for her husband after she prevailed at trial against hospital on hospital’s collection claim because the trial court found that wife was not liable for the payment of her husband’s bill, which finding rendered as meaningless any mutuality that would have existed had wife been a party to the contract. Florida Medical Ctr. v. McCoy, 657 So. 2d 1248, 1995 Fla. App. LEXIS 7435 (Fla. 4th DCA 1995).

277. Pursuant to Fla. Stat. § 57.105, it was not error for the trial court to fail to award defendant interest on the attorney’s fees awarded defendant based on defendant’s trial work as his own co-counsel and for defendant and defense attorney’s time based on their work at the appellate level. Miller v. Transflorida Bank, 656 So. 2d 1364, 1995 Fla. App. LEXIS 6920 (Fla. 4th DCA 1995).

278. Where the trial court granted a party’s motion for summary judgment on the basis of the trial court’s analysis and interpretation of a contractual provision to mean not what it apparently stated, such an analysis belied a finding that the defense to the action was frivolous and thus an award of attorneys’ fees under Fla. Stat. § 57.105 was an abuse of discretion. DOT v. Kisinger Campo & Assocs., 661 So. 2d 58, 1995 Fla. App. LEXIS 5743 (Fla. 2nd DCA 1995).

279. Under Fla. Stat. § 57.105(2), if a contract contains a provision allowing attorney’s fees to a party when he is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the opposing party when that party prevails in the action. Carnival Leisure Indus. v. Arviv, 655 So. 2d 177, 1995 Fla. App. LEXIS 5314 (Fla. 3rd DCA 1995).

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280. Daughter’s action against son regarding their mother’s estate, while inartfully drawn, should have been construed as one for wrongful interference with a testamentary expectancy; as such it presented a justiciable issue of law and fact and did not justify an award of attorney’s fees to the son under Fla. Stat. § 57.105. Henshall v. Lowe, 657 So. 2d 6, 1995 Fla. App. LEXIS 4485 (Fla. 2nd DCA 1995).

281. Where property owners, whose tree roots had caused a city sidewalk to crack, obtained a release from a pedestrian who was injured when she tripped on the crack and then sued the city, which then filed a third-party complaint against the owners for contribution, the trial court erred in awarding the owners attorney fees from the city under Fla. Stat. § 57.105 because the city had a legitimate third-party claim against the owners and had no notice of the release before filing the third-party complaint; the statute did not require a claimant to investigate and eliminate every possible defense before filing an action. City of Largo v. LaGrande, 650 So. 2d 178, 1995 Fla. App. LEXIS 981 (Fla. 2nd DCA 1995).

282. Trial court erred in awarding attorneys fees pursuant to Fla. Stat. § 57.105 to property owners because the city was not required to investigate and eliminate every possible defense before filing an action, and the standard for granting summary judgment was not the equivalent of frivolousness. City of Largo v. LaGrande, 650 So. 2d 178, 1995 Fla. App. LEXIS 981 (Fla. 2nd DCA 1995).

283. Fla. Stat. § 57.105 provides for the award of a reasonable attorney’s fee to the prevailing party in any civil action where there is no justiciable issue of either law or fact raised by either the complaint or defense of the losing parties; therefore, the trial court should have awarded attorney’s fees to appellees where they prevailed on a motion for summary judgment on the doctrine of res judicata, as there was no justiciable issue of law or fact. Olson v. Potter, 650 So. 2d 635, 1995 Fla. App. LEXIS 464 (Fla. 2nd DCA 1995).

284. Where a case was terminated by a voluntary dismissal, either with or without prejudice, defendant’s entitlement to attorney’s fees was not eliminated under Fla. Stat. §§ 57.105 or 768.79, and requests for attorney’s fees under Fla. Stat. § 768.79(6) could be made by motion after judgment. Tampa Letter Carriers v. Mack, 649 So. 2d 890, 1995 Fla. App. LEXIS 451 (Fla. 2nd DCA 1995), overruled, MX Invs. v. Crawford, 700 So. 2d 640, 1997 Fla. LEXIS 1357 (Fla. 1997).

285. In an action by guarantor seeking to, inter alia, set aside a final judgment of default which was entered in a prior action by the bank against guarantor, the bank was entitled to attorney’s fees under Fla. Stat. § 57.105(1) because guarantor’s action was frivolous as his pleading revealed a total lack of justiciable issue and was clearly devoid of merit both on the facts and the law, and guarantor voluntarily dismissed his action with prejudice after the bank raised the defense of res judicata. Bay Fin. Sav. Bank, F.S.B. v. Hook, 648 So. 2d 305, 1995 Fla. App. LEXIS 68 (Fla. 2nd DCA 1995).

286. The standard for determining entitlement to attorney’s fees is slightly less stringent under Fla. Stat. §§ 772.104 and 895.05(7) than the bad faith standard of Fla. Stat. § 57.105; while Fla. Stat. § 57.105 requires a finding of a complete absence of a justiciable issue of either law or fact before a losing party would be obligated to pay the opposing party’s attorney’s fees, Fla. Stat. §§ 772.104 and 895.05(7) merely necessitate a finding that the claim was without substantial fact or legal support. Remova Pool Fence Co. v. Roth, 647 So. 2d 1022, 1994 Fla. App. LEXIS 12367 (Fla. 4th DCA 1994).

287. An award of attorney’s fees under Fla. Stat. § 57.105(1) is not appropriate unless the court finds a total or absolute lack of a justiciable issue, which is tantamount to a finding that the action is frivolous and so clearly devoid of merit both on the facts and the law as to be completely untenable; such a determination must be made as to the entire action, and the fact that a portion of the action is frivolous does not justify an award. Remova Pool Fence Co. v. Roth, 647 So. 2d 1022, 1994 Fla. App. LEXIS 12367 (Fla. 4th DCA 1994).

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288. When a third party intervened with a superior claim to that of plaintiff, it did not render plaintiff’s claim frivolous and subject to taxation of attorney’s fees under Fla. Stat. § 57.105. Independence Bank v. Penning, 648 So. 2d 777, 1994 Fla. App. LEXIS 11952 (Fla. 2nd DCA 1994).

289. Although the court properly assessed attorney’s fees against plaintiff under Fla. Stat. § 57.105, it was error for the court to have applied a contingency risk multiplier to the amount of fees awarded. Richardson v. Merkle, 646 So. 2d 289, 1994 Fla. App. LEXIS 11630 (Fla. 2nd DCA 1994).

290. Even though a construction company failed to prevail in its various claims against a housing developer arising out of the developer’s failure to accept the construction company’s lowest bid, the housing developer was not entitled to attorney’s fees under Fla. Stat. § 57.105 because the claims were a good faith attempt to establish that the manner in which the construction company’s bid was rejected was unlawful. Fairview Properties v. Pate Constr. Co., 638 So. 2d 998, 1994 Fla. App. LEXIS 5798 (Fla. 4th DCA 1994).

291. Trial court award of attorney fees pursuant to Fla. Stat. § 57.105(2) to a prevailing party in a contract action was reversed because the prevailing party failed to plead entitlement to such fees and no recognized exception to the rule requiring specific pleading applied; a party seeking attorney’s fees pursuant to a statute or contract must plead entitlement to such fees. Res Panel Refrigeration Corp. v. Bill Collins Refrigeration Servs., 636 So. 2d 569, 1994 Fla. App. LEXIS 4415 (Fla. 3rd DCA 1994).

292. In a creditor’s action against the debtor’s law firm that provided erroneous information to the creditors regarding the debtor’s financial and legal status, the trial court’s award of attorneys’ fees to the law firm was improper because the creditor’s action was in good faith and presented a justiciable issue of law; even if a portion of a lawsuit was frivolous, an award of attorneys’ fees was not appropriate against a plaintiff so long as the complaint alleged some justiciable issue. Huie v. Dent & Cook, P.A., 635 So. 2d 111, 1994 Fla. App. LEXIS 3269 (Fla. 2nd DCA 1994).

293. An award of attorney fees against a divorced husband was not appropriate under Fla. Stat. § 57.105 where an action for modification of a dissolution agreement, which did not involve child support, was initiated and dismissed on the husband’s behalf by the Department of Health and Rehabilitative Services (DHRS); if a basis existed for a fee award, the fee was more appropriately assessable against DHRS, rather than against the husband. Department of Health & Rehabilitative Servs. ex rel. Bollheimer v. Bollheimer, 634 So. 2d 179, 1994 Fla. App. LEXIS 1677 (Fla. 5th DCA 1994).

294. There was not a complete absence of a justiciable issue in a case where plaintiff asserted that defendant had driven in a negligent manner; although the trial court granted a directed verdict in favor of defendant, the trial court denied defendant’s summary judgment motion, finding that a sufficiently justiciable issue was raised by the pleadings and supporting documentation, and therefore it was an error for the trial court to award attorney’s fees to defendant pursuant to Fla. Stat. § 57.105(1). Kahn ex rel. Benefit of Amica Mut. Ins. Co. v. Kahn, 630 So. 2d 223, 1994 Fla. App. LEXIS 4 (Fla. 3rd DCA 1994).

295. Employer’s claim for attorney’s fees was properly denied, for employee’s wrongful discharge claim, which was premised upon the employee’s termination for voluntarily offering testimony adverse to the employer at a hearing to determine a co-worker’s right to unemployment benefits, was not a frivolous claim but was a valid, good faith effort to change existing law. Wiggins v. Southern Management Corp., 629 So. 2d 1022, 1993 Fla. App. LEXIS 12676 (Fla. 4th DCA 1993).

296. Trial court improperly granted joint motion of mother and state agency to substitute counsel because it converted the enforcement action from one statutory provision to another and substituted the mother as a party for the state agency, and therefore prevented father from pursuing his motion for attorney’s fees against state agency. Fort v. Department of Health &

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Rehabilitative Servs. ex rel. Emmers, 626 So. 2d 302, 1993 Fla. App. LEXIS 11177 (Fla. 5th DCA 1993).

297. Defendant father was not entitled to recover attorney’s fees because a ruling was obtained that he was not the children’s father; as a result, the order that awarded attorney’s fees was deficient because it failed to expressly find that there was no justiciable issue of law or fact, and no statutory basis for the award was stated. P.N. v. D.P., 626 So. 2d 271, 1993 Fla. App. LEXIS 10976 (Fla. 2nd DCA 1993).

298. Attorney’s fees were proper under Fla. Stat. § 57.105 after the trial court correctly found that there was a complete lack of justiciable issues of law or fact in plaintiff’s complaint. Visoly v. Security Pac. Credit Corp., 625 So. 2d 1276, 1993 Fla. App. LEXIS 10311 (Fla. 3rd DCA 1993).

299. Trial court erred in awarding prejudgment interest on an award of attorney’s fees under Fla. Stat. § 57.105 because such interest was not recoverable where the judgment had the effect of simultaneously determining liability for and setting the amount of attorney’s fees. Bremshey v. Morrison, 621 So. 2d 717, 1993 Fla. App. LEXIS 5541 (Fla. 5th DCA 1993).

300. Attorney’s fees that were awarded to appellee personal representative pursuant to Fla. Stat. § 57.105 were not proper because appellant beneficiary’s action to block appellees’ payment of a claim to a former guardian of the decedent was not frivolous. O'Brien v. Sarka, 613 So. 2d 47, 1993 Fla. App. LEXIS 96 (Fla. 2nd DCA 1993).

301. After a child support modification proceeding, the trial court exceeded the scope of the appellate court’s relinquishment of jurisdiction for the limited purpose of setting forth findings as to attorneys fees pursuant to Fla. Stat. § 57.105, when it increased the award as originally set. Department of Health & Rehabilitative Servs. v. Davenport, 609 So. 2d 137, 1992 Fla. App. LEXIS 12089 (Fla. 4th DCA 1992).

302. Fla. Stat. § 57.105 does not require that entitlement to statutory attorney’s fees be specifically pled in the answer because it is only after the case has terminated that a sensible judgment can be made as to whether the adverse party raised nothing but frivolous issues in the cause; thus, a postjudgment motion for attorney’s fees is appropriate under Fla. Stat. § 57.105. Ganz v. HZJ, Inc., 605 So. 2d 871, 1992 Fla. LEXIS 1653 (Fla. 1992).

303. Religious organization was entitled to attorney’s fees under Fla. Stat. § 57.105 where women’s organization’s suit was baseless because there was no evidence to support its allegations against the religious organization. Moral Majority, Inc. v. Broward County Chapter of Nat'l Organization for Women, Inc., 606 So. 2d 630, 1992 Fla. App. LEXIS 9192 (Fla. 4th DCA 1992).

304. Trial court wrongfully applied a contingency risk multiplier factor to an attorney’s fee award pursuant to Fla. Stat. § 57.105 because the trial court failed to make the requisite specific findings that supported such application. Swortz v. Southern Rainbow Corp., 603 So. 2d 107, 1992 Fla. App. LEXIS 8385 (Fla. 3rd DCA 1992).

305. Because husband in dissolution action was making a good faith effort to change the existing law regarding interspousal immunity, an award of attorney’s fees to his wife pursuant to Fla. Stat. § 57.105 was inappropriate; an award of attorney’s fees was proper only absent a total and absolute lack of a justiciable issue. Cook v. Cook, 602 So. 2d 644, 1992 Fla. App. LEXIS 7612 (Fla. 2nd DCA 1992).

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306. Mortgagees were not entitled to attorney’s fees pursuant to Fla. Stat. § 57.105 because mortgagees had no personal liability under either the underlying note or mortgage and therefore would not be able to recover fees if they should win. Suchman Corporate Park, Inc. v. Greenstein, 600 So. 2d 532, 1992 Fla. App. LEXIS 6291 (Fla. 3rd DCA 1992).

307. In action by plaintiffs against sheriff for false arrest and imprisonment, trial court finding that plaintiffs were liable for sheriff’s attorney fees pursuant to Fla. Stat. § 57.105 was affirmed because the case presented a complete absence of any justiciable issue of either law or fact. LeGrand v. Dean, 598 So. 2d 218, 1992 Fla. App. LEXIS 4976 (Fla. 5th DCA 1992).

308. Where a final judgment and fees had been awarded in favor of appellee against corporation, and the record did not show that the statutory thresholds for an award of fees existed, the award of fees and costs against the intervenors and in favor of the corporation and the director defendants was reversed. Miley v. Last Resort Fish Camp Ass'n, 598 So. 2d 159, 1992 Fla. App. LEXIS 4503 (Fla. 5th DCA 1992).

309. Attorney’s fees under Fla. Stat. § 57.105 were inappropriate where a complaint stated a cause of action for medical negligence and the plaintiff had conducted a good faith investigation before a suit was filed; even though events may have developed during the course of the lawsuit indicating that the suit was frivolous, it did not give rise to an award of fees. Solimando v. Aloha Medical Center, 594 So. 2d 850, 1992 Fla. App. LEXIS 1834 (Fla. 2nd DCA 1992).

310. Because the questions of lapse of the residuary estate for lack of a residuary beneficiary and determination of the beneficiary constituted justiciable issues under Fla. Stat. § 57.105, the trial court’s award of attorney’s fees following a grant of summary judgment was improper. Kelly v. Militana, 595 So. 2d 113, 1992 Fla. App. LEXIS 1025 (Fla. 3rd DCA 1992).

311. In a club’s action against a developer that ceased a development project, attorney fees were proper under Fla. Stat. § 57.105 because absent the club’s spurious evidence, no justifiable issue was either pleaded or argued; however remand was necessary because the formal procedures for the attorney fees award was not followed where the trial court did not set forth how it arrived at the fee figure it awarded, nor did it set forth the reasonable number of hours for which compensation was owed, nor did it set forth the reasonable hourly rate at which the attorney was to be compensated. Key West Polo Club Developers, Inc. v. Towers Constr. Co., 1991 Fla. App. LEXIS 12671 (Fla. 3rd DCA 1991).

312. Fla. Stat. § 57.105 was applicable to plaintiff’s mandamus action brought to compel defendant county to pay statutory interest on a judgment because a mandamus action was the only vehicle for enforcing a judgment against the government and was a separate and distinct law suit; defendant county would be responsible for the payment of attorney’s fees under the statute if its defense to the mandamus action was without factual merit or legal basis. Northern Coats v. Metropolitan Dade County, 588 So. 2d 1016, 1991 Fla. App. LEXIS 10523 (Fla. 3rd DCA 1991).

313. Although an injunction halting appellee publishing company’s construction of radio towers was dissolved by the final zoning board of appeal on the ground that the county properly issued tower building permits without requiring variances for aviation hazards under Lake County Code ch. 17, appellee was not entitled to recover its attorney’s fees against an injunction bond because appellant aviation authority’s injunction suit was not frivolous and the injunction was properly issued to enforce Lake County Code ch. 17’s automatic stay. Greater Orlando Aviation Authority v. Lake County Bd. of County Comm'rs, 587 So. 2d 651, 1991 Fla. App. LEXIS 10289 (Fla. 5th DCA 1991).

314. Award of attorney’s fees made in favor of defendant elevator companies pursuant to Fla. Stat. § 57.105 was in error because sworn deposition testimony taken prior to suit clearly indicated that defendants were involved in the accident and the facts did not demonstrate a total lack of a justiciable issue at the time plaintiff filed her personal injury suit that would support a finding that the action was frivolous; the fact that subsequent discovery revealed that neither defendant was involved in the

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accident was insufficient to support the award of attorney’s fees. Mitchell v. Schindler Haughton Elevator Co., 587 So. 2d 636, 1991 Fla. App. LEXIS 10139 (Fla. 3rd DCA 1991).

315. Although an award of attorney’s fees was not permitted under Fla. Stat. § 713.31, because that statute did not specifically authorize such fees, the fees could be awarded under Fla. Stat. § 57.105 once the lower court set forth specific findings and stated the grounds upon which the fee award was based, including the reasonable number of hours for which compensation was owed and the reasonable hourly rate at which the attorney was to be compensated. Key West Polo Club Developers v. Towers Constr. Co., 589 So. 2d 917, 1991 Fla. App. LEXIS 8040 (Fla. 3rd DCA 1991).

316. Where the trial court granted summary judgment in favor of a defendant on each of three counts in a plaintiff’s complaint, and found that one of the three counts was frivolous, it was error to award defendant attorney’s fees pursuant to Fla. Stat. § 57.105(1) because, to award fees pursuant to Fla. Stat. § 57.105(1), there had to have been the complete absence of a justiciable issue of law or fact which rendered the action completely untenable, and the trial court was required to make such a determination as to the entire action, not merely a portion thereof. Barber v. Oakhills Estates Partnership, 583 So. 2d 1114, 1991 Fla. App. LEXIS 7772 (Fla. 2nd DCA 1991).

317. Where a lower court found that no contract existed between corporate entities, it was error to award attorney fees to the prevailing party under Fla. Stat. § 57.105 based upon provision in contract that provided for attorney fees to prevailing party in event of litigation. County Waste, Inc. v. Public Storage Management, Inc., 582 So. 2d 87, 1991 Fla. App. LEXIS 5884 (Fla. 3rd DCA 1991).

318. Claim alleging that plaintiff was third-party beneficiary of contract of appraisal, which defendant allegedly breached, was not frivolous; therefore, attorney’s fees, pursuant to Fla. Stat. § 57.105, were improperly assessed against plaintiff’s attorney. Baron v. Fieldstone, 581 So. 2d 649, 1991 Fla. App. LEXIS 5879 (Fla. 3rd DCA 1991).

319. Where a putative husband’s loss of consortium claim in a suit seeking damages for his alleged wife’s personal injuries was dismissed because the couple was not actually married, the husband was accountable for paying attorney fees for filing a sham complaint but the wife was not because, under Fla. Stat. § 57.105, the wife’s claim was not frivolous and her conduct was not contumacious. Kirby v. Adkins,, 582 So. 2d 1209, 1991 Fla. App. LEXIS 5708 (Fla. 5th DCA 1991).

320. As required by Fla. Stat. § 57.105(1), absent the trial court’s finding that there was an absence of any justiciable issue of either law or fact articulated in the complaint or in the losing party’s defense, the prevailing party was not entitled to attorney’s fees. Ware v. Land Title Co., 582 So. 2d 46, 1991 Fla. App. LEXIS 5500 (Fla. 2nd DCA 1991).

321. Application of a contingency risk multiplier to compute the award of attorney’s fees under Fla. Stat. § 57.105(1) was improper because the case was so frivolous as to cause counsel to undertake litigation for a fee that was solely contingent on Fla. Stat. § 57.105. Transflorida Bank v. Miller, 576 So. 2d 752, 1991 Fla. App. LEXIS 1302 (Fla. 4th DCA 1991).

322. Award of attorney fees was not proper because there was not a complete absence of a justiciable issue of either law or fact as of the time the suit was initially presented as required by Fla. Stat. § 57.105(1). Lambert v. Nelson, 573 So. 2d 54, 1990 Fla. App. LEXIS 9647 (Fla. 1st DCA 1990).

323. Appellants, who had been rear-ended by appellee who had been hit by another driver, were not liable to appellee for attorney’s fees pursuant to Fla. Stat. § 57.105 because their claim against appellee was not frivolous in that, at the time the suit was filed, there was a possibility that allegations could have been made that appellee was comparatively negligent. Rojas v.

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Drake, 569 So. 2d 859, 1990 Fla. App. LEXIS 8527 (Fla. 2nd DCA 1990).

324. Mother’s motion for an award of attorney’s fees pursuant to Fla. Stat. § 57.105 was properly denied upon rehearing where a thorough examination of the record indicated insufficient evidence to support the mother’s claim that the trial court abused its discretion in restoring the father’s overnight visitation privileges with his 10- and 13-year-old daughters where there was no competent evidence that the children were abused physically or mentally while in the father’s care and control. Rosen v. Rosen, 576 So. 2d 308, 1990 Fla. App. LEXIS 8180 (Fla. 3rd DCA 1990).

325. Pending appeal of the dismissal of a malpractice action, which was reversed, an award of attorneys’ fees to defendants pursuant to Fla. Stat. § 57.105 was improper absent a finding that plaintiff’s claim was frivolous, especially in light of the settlement plaintiff reached with defendants, which indicated that the case did not totally lack justiciable issues. Solimando v. Aloha Medical Center, 566 So. 2d 580, 1990 Fla. App. LEXIS 6742 (Fla. 2nd DCA 1990).

326. Appellee was not entitled to attorney fees from appellant whose case was dismissed due to privity with a prior litigant against appellee; Fla. Stat. § 57.105(2) only provided for attorney fees if appellant prevailed, not if appellee prevailed, and contractual provision providing for attorney fees did not apply because it was executed prior to the effective date of the statute. Personnel One, Inc. v. John Sommerer & Co., 564 So. 2d 1217, 1990 Fla. App. LEXIS 5606 (Fla. 3rd DCA 1990).

327. Plaintiff was entitled to attorneys’ fees pursuant to Fla. Stat. § 57.105(1) when he prevailed on a motion for summary judgment on the doctrine of res judicata and collateral estoppel; prevailing on summary judgment on those grounds constituted a complete absence of justiciable issue of either law or fact raised by the complaint or defense of the losing party. Southford v. Hatton, 566 So. 2d 527, 1990 Fla. App. LEXIS 5449 (Fla. 2nd DCA 1990).

328. Where defendant defaulted and failed to raise any defenses at all, the plaintiff was not entitled to attorney’s fees under Fla. Stat. § 57.105, because the defendant did not raise defenses which completely lacked any justiciable issues of law or fact as required by the statute. Cabral v. Diversified Services, Inc., 560 So. 2d 246, 1990 Fla. App. LEXIS 1370 (Fla. 3rd DCA 1990).

329. Imposition of attorney’s fees was proper against a party who sought to avoid summary judgment by claiming that there was a genuine issue of material fact based on conflict between sworn testimony he gave in a prior related lawsuit and the position he maintained in the present action. Freixas v. Buena Vista Lakes Condominium Ass'n, 559 So. 2d 1184, 1990 Fla. App. LEXIS 1196 (Fla. 3rd DCA 1990).

330. In a medical malpractice action brought by a convicted sexual predator against a doctor alleging that the doctor negligently performed examination of the sexual predator’s victim, the trial court order denying doctor attorney fees was reversed because under Fla. Stat. § 57.105, the doctor was entitled to attorney fees where there was a complete absence of a justiciable issue of either law or fact, and the sexual predator’s suit was completely untenable. Boczar v. Glendening, 555 So. 2d 1286, 1990 Fla. App. LEXIS 244 (Fla. 2nd DCA 1990).

331. Where a Department of Health and Rehabilitative Services collection action was undertaken against delinquent father in good faith, frivolousness that arose later did not give rise to a valid claim for attorney fees for father. State, Dep't of Health & Rehabilitative Services v. Thompson, 552 So. 2d 318, 1989 Fla. App. LEXIS 6408 (Fla. 2nd DCA 1989).

332. Attorney’s fees were improperly granted under Fla. Stat. § 57.105 based on a technical error where plaintiff had put an incorrect name on the complaint because entitlement to fees under that statute could only be predicated upon a proper finding by the trial court of the complete absence of a justiciable issue of either law or fact raised by the complaint or defense of the

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losing party. Disposall, Inc. v. Wilson, 547 So. 2d 1299, 1989 Fla. App. LEXIS 4849 (Fla. 5th DCA 1989).

333. The mere granting of a motion to strike a sham pleading does not automatically entitle the moving party to an award of attorney’s fees under Fla. Stat. § 57.105 because in order to award attorney’s fees, it is necessary to find that the entire action, not merely a portion thereof, is devoid of merit both as to law and fact. Wood v. Price, 546 So. 2d 88, 1989 Fla. App. LEXIS 3844 (Fla. 2nd DCA 1989).

334. Fla. Stat. § 57.105 applies to a suit brought under Florida’s election laws. Broida v. Dade County Election & Canvassing Bd., 551 So. 2d 497, 1989 Fla. App. LEXIS 2533 (Fla. 3rd DCA 1989).

335. Because statements made by a law firm in a motion to dismiss were made in the course of a judicial proceeding and therefore absolutely immune, the firm was entitled to attorney’s fees under Fla. Stat. § 57.105 for the costs of defending the underlying opponent’s libel and extortion suit. Ponzoli & Wassenberg, P.A. v. Zuckerman, 545 So. 2d 309, 1989 Fla. App. LEXIS 2055 (Fla. 3rd DCA 1989).

336. Where an insured challenged the attorney fee awarded her pursuant to Fla. Stat. § 57.105 following the successful resolution of her personal injury protection benefits claim against the insurer, the insured was entitled to have the fee recalculated in the absence of any evidence in the record showing the grounds upon which the fee was based; the trial court failed to set forth how it arrived at the figure it did, the number of hours for which compensation was owed, or the reasonable hourly rate at which the insured’s attorney was to be compensated. Lara v. Fortune Ins. Co., 545 So. 2d 909, 1989 Fla. App. LEXIS 1953 (Fla. 2nd DCA 1989).

337. Although discovery established that defendant physician was not at fault, at the outset of the action plaintiffs could not ascertain who was at fault; therefore, the action was not frivolous under the circumstances and attorney’s fee award to defendant physician under Fla. Stat. § 57.105 was error. Goldstein v. Richter, 538 So. 2d 473, 1989 Fla. App. LEXIS 183 (Fla. 4th DCA 1989).

338. Attorney’s fees were improperly awarded pursuant to Fla. Stat. § 57.105 where the trial court had determined that there was not a complete absence of a justiciable issue of either law or fact raised by the complaint and the affirmative defense of the statute of limitations had to be asserted by defendant. Piancone v. Engineering Design, Inc., 534 So. 2d 896, 1988 Fla. App. LEXIS 5393 (Fla. 5th DCA 1988).

339. The trial court acted properly in awarding the insured attorney’s fees pursuant to Fla. Stat. § 57.105 because the insurer’s lawsuit was its third attempt to collect unpaid insurance premiums for coverages it issued and the complaint advanced no justiciable arguments of law or fact which could defeat the insured’s statute of limitations defense. Home Indem., Inc. v. Floyd Beck Trucking, Inc., 533 So. 2d 317, 1988 Fla. App. LEXIS 4920 (Fla. 5th DCA 1988).

340. Where the appellate court reversed the trial court’s directed verdict it rendered the trial court’s attorney fee award premature and inappropriate. Hagans Co. v. Manla, 534 So. 2d 750, 1988 Fla. App. LEXIS 4910 (Fla. 3rd DCA 1988).

341. It was an error for the trial court to award attorney’s fees to defendant pursuant to Fla. Stat. § 57.105 because plaintiff’s action was non-frivolous at its inception, although it later became apparent that there no longer remained any justiciable issues of law or fact. Marexcelso Compania Naviera, S.A. v. Florida Nat'l Bank, 533 So. 2d 805, 1988 Fla. App. LEXIS 4397 (Fla. 4th DCA 1988).

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342. The water company was entitled to attorney’s fees because the city denied it a permit to work in the right-of-way, pursuant to Fla. Stat. § 180.06, in order to gain a legal advantage in a separate proceeding, despite the complete absence of any justiciable issue of either law or fact. Jacksonville v. Ortega Utility Co., 531 So. 2d 370, 1988 Fla. App. LEXIS 4045 (Fla. 1st DCA 1988).

343. To justify an award of attorney’s fees under Fla. Stat. § 57.105, a trial court had to find that the action was frivolous; therefore, the trial court erred in awarding attorney’s fees when it failed to state the basis for such an award and the final judgment did not contain any finding that there was a complete absence of a justiciable issue raised by the losing party. Schwartz v. W-K Partners, 530 So. 2d 456, 1988 Fla. App. LEXIS 3885 (Fla. 5th DCA 1988).

344. The trial court properly awarded attorney’s fees to defendant corporation under Fla. Stat. § 57.105 in a suit brought by two individuals who sought injunctive relief to open a temporarily closed road because the individuals had no standing but the award of attorney’s fees for defendant city was reversed because of insufficient documentation of attorney time. Tiedeman v. Miami, 529 So. 2d 1266, 1988 Fla. App. LEXIS 3723 (Fla. 3rd DCA 1988).

345. An award of attorney’s fees to appellee was a departure from the essential requirements of law in making such awards, and the contract between the parties entitled appellant, not appellee, to attorney’s fees in collection efforts. Coral Springs Roofing Co. v. Campagna, 528 So. 2d 557, 1988 Fla. App. LEXIS 3412 (Fla. 4th DCA 1988).

346. In an action to recover child support payments through the district attorney’s office, the district attorney was not a party in the action pursuant to Fla. Stat. § 57.105, and the defendant was not entitled to attorneys’ fees from the district attorney even after he prevailed in the action. Department of Health & Rehabilitative Services v. Dubay, 522 So. 2d 109, 1988 Fla. App. LEXIS 1122 (Fla. 5th DCA 1988).

347. In an action to collect on a medical bill the doctor was not entitled to collect attorney’s fees because he was not a “prevailing party” under Fla. Stat. § 57.105 where a third party stranger paid the bill, there was no settlement between the parties, and the doctor did not take a voluntary dismissal. Perez v. Claudio Diaz, M.D., P.A., 519 So. 2d 1107, 1988 Fla. App. LEXIS 500 (Fla. 3rd DCA 1988).

348. In a contractor’s action to execute on its judgment against a homestead owner for obligations under the contract for home improvements, the trial court erred in awarding attorney’s fees to the contractor under Fla. Stat. § 57.105 because the homestead owner’s defense from the contractor’s action to execute its judgment was not so devoid of merit that it was frivolous or completely untenable. Brinson v. Creative Aluminum Products, Inc., 519 So. 2d 59, 1988 Fla. App. LEXIS 309 (Fla. 2nd DCA 1988).

349. The trial court’s award of attorney’s fees under Fla. Stat. § 57.105 in a service mark infringement suit on the ground that the defenses raised no justiciable issue of either law or fact was improperly assessed, because the opposing party was without notice and opportunity for a hearing, and the request for costs was presented after the conclusion of the trial. Staff v. Trafalgar Developers of Florida, Inc., 518 So. 2d 981, 1988 Fla. App. LEXIS 213 (Fla. 2nd DCA 1988).

350. A party that asserted a good faith and soundly based attempt to change an existing rule of law in a negligence action was not subject to attorney fees imposed pursuant to Fla. Stat. § 57.105 on parties bringing frivolous lawsuits. Jones v. Charles, 518 So. 2d 445, 1988 Fla. App. LEXIS 76 (Fla. 4th DCA 1988).

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351. Attorney’s fees and costs were wrongly awarded to defendant in a suit foreclosing a mechanic’s lien when the lienholder failed to include a legal description of the property in the original lien filing but refiled the lien with a legal description after the 90 day filing period for mechanic’s liens had run, because Fla. Stat. § 713.08(4)(a) permitted the lienholder to show that no adverse effect arose from the omission. Johnson & Bailey Architects, P.C. v. Southeast Brake Corp., 517 So. 2d 776, 1988 Fla. App. LEXIS 105 (Fla. 2nd DCA 1988).

352. The trial court erred when it awarded attorney’s fees pursuant to Fla. Stat. § 57.105 to defendant tenant after dismissing plaintiff landlord’s malicious prosecution claim because the record showed that the complaint was neither frivolously filed nor devoid of arguable substance. Dorf v. Usher, 514 So. 2d 68, 1987 Fla. App. LEXIS 10126 (Fla. 4th DCA 1987).

353. Where plaintiff prevailed without the defendant raising a justiciable issue in two phases of a three phase trial, plaintiff was not entitled to attorneys’ fees pursuant to Fla. Stat. § 57.105 because the defendant raised justiciable issues in the third phase of trial. Schultz v. Lurie, 512 So. 2d 1003, 1987 Fla. App. LEXIS 10005 (Fla. 2nd DCA 1987).

354. In an action in which paternity testing indicated that the defendant was 93.2 percent likely to be the father, no presumption of paternity arose and a justiciable issue of paternity existed with regard to the defendant’s third party complaint against another potential father; when tests later revealed that the third party defendant was not the father, but that the defendant was, the third party defendant was not entitled to attorneys’ fees pursuant to Fla. Stat. § 57.105. Schatz v. Wenaas, 510 So. 2d 1125, 1987 Fla. App. LEXIS 9758 (Fla. 2nd DCA 1987).

355. In plaintiff patient’s personal injury action, defendant housekeeping service was not entitled to attorney fees under Fla. Stat. § 57.105 because the record did not contain a transcript of the hearing of the summary judgment motion, and therefore, there was no showing that the trial court erred in its ruling. Bethune v. Santa Rosa Hospital, 510 So. 2d 1039, 1987 Fla. App. LEXIS 9716 (Fla. 1st DCA 1987).

356. Trial court erred in awarding attorney’s fees to defendant in civil suit, pursuant to Fla. Stat. § 57.105, where the award was based on the court having directed a verdict as to two out of the three counts because plaintiff’s claim was not so frivolous nor devoid of merit as to permit a conclusion that there was no justiciable issue of law or fact. Crawford v. American Household Storage Co., 509 So. 2d 1358, 1987 Fla. App. LEXIS 9429 (Fla. 4th DCA 1987).

357. Sanctions could not be granted under Fla. Stat. § 57.105 against a developer because there could be no “prevailing party” under Fla. Stat. § 57.105 until there was a disposition of the case. Ruppel v. Gulf Winds Apartments, Inc., 508 So. 2d 534, 1987 Fla. App. LEXIS 8781 (Fla. 2nd DCA 1987).

358. An award of attorney fees under Fla. Stat. § 57.105 was erroneous where justiciable issues were present, notwithstanding an appellate court ruling that a large portion of the suit lacked merit. Muckenfuss v. Deltona Corp., 508 So. 2d 340, 1987 Fla. LEXIS 1969 (Fla. 1987).

359. Awarding attorney’s fees to the prevailing plaintiff lessee against defendant lessor, who wrongfully repossessed a vessel and personal property thereon, was improper under Fla. Stat. § 57.105 because defendant’s position on the distinct issue of malice or reckless disregard in an intentional tort claim was not frivolous and was arguably both factual and legal. Ciamar Marcy, Inc. v. Monteiro Da Costa, 508 So. 2d 1282, 1987 Fla. App. LEXIS 8769 (Fla. 3rd DCA 1987).

360. Attorney’s fees under Fla. Stat. § 57.105 should have been granted because an action to extinguish an easement presented no justiciable issue of either law or fact where an express grant of the easement without reservation or restriction was

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permanent and not revocable by the grantor. Ford v. Miller, 506 So. 2d 464, 1987 Fla. App. LEXIS 7901 (Fla. 2nd DCA 1987).

361. The trial court erred in awarding attorney’s fees to the purchasers of land pursuant to Fla. Stat. § 57.105 where the purchasers had brought suit against the sellers of the property alleging a tender of full payment of the outstanding balance due and owing on the mortgage held by the sellers, because the existence of a justiciable issue of law or fact was affirmatively demonstrated by the trial court’s denial of a motion for summary judgment. First v. Carver, 504 So. 2d 50, 1987 Fla. App. LEXIS 7290 (Fla. 2nd DCA 1987).

362. Where plaintiff had a viable argument, albeit a weak one, that its loss was covered by an indemnity agreement because its loss would have been less had there been no repossession of a certain yacht from the plaintiff’s premises, although the argument had no merit because the repossession was a perfectly lawful repossession and did not expose the plaintiff to any liability whatever, it was not a frivolous position, and defendants were not entitled to attorney fees. Richard Bertram & Co. v. Sun Bank/Miami, N.A., 503 So. 2d 965, 1987 Fla. App. LEXIS 12034 (Fla. 3rd DCA 1987).

363. Putative father was not entitled to receive attorney’s fees under Fla. Stat. § 57.105 from the Florida Department of Health and Rehabilitative Services, which stood in the place and stead of the mother in the paternity action, because justiciable issues of law and fact were raised in good faith concerning the child’s paternity, and the putative father’s admission to having had sexual relations with the mother during the critical time of conception led to the conclusion that the action was not frivolous. Richardson v. Helms, 502 So. 2d 1372, 1987 Fla. App. LEXIS 6998 (Fla. 2nd DCA 1987).

364. A voluntary dismissal by plaintiff corporation due to a technical error in its complaint in its suit against defendant printing company to recover for breach of contract did not entitle defendant to attorney’s fees under Fla. Stat. § 57.105 because plaintiff’s action was not frivolous, baseless or clearly devoid of merit. Xerox Corp. v. Sharifi, 502 So. 2d 1003, 1987 Fla. App. LEXIS 6829 (Fla. 5th DCA 1987).

365. An award of attorneys’ fees pursuant to Fla. Stat. § 57.105 was improper where the plaintiff filed a motion to voluntarily dismiss its case because although there were no justiciable issues of fact or law at the time of voluntary dismissal, where the plaintiff’s action had merit at the time of filing and the plaintiff did not continue to prosecute its case after the lack of merit became apparent, the award of fees was improper. State, Dep't of Health & Rehabilitative Services, Office of Child Support Enforcement ex rel. Cook v. Carr, 501 So. 2d 30, 1986 Fla. App. LEXIS 11454 (Fla. 2nd DCA 1986).

366. Intervenor who successfully moved against the portion of an heir’s petition to revoke probate which sought to set aside an inter vivos gift to intervenor was not entitled to an award of attorney’s fees under Fla. Stat. § 57.105 because she had not prevailed as to the entire action. Bashure v. Estate of Paulk, 498 So. 2d 525, 1986 Fla. App. LEXIS 10588 (Fla. 1st DCA 1986).

367. Where a moving company failed to deliver property, causing owners general damages including motel expenses, food costs, telephone bills, and purchase of minimal clothing, owners were not entitled to attorney’s fees under Fla. Stat. § 57.105 because the moving company’s position in the lawsuit was not so devoid of merit as to be frivolous, and, while intentional misconduct could serve as a basis for punitive damages or tort damages, it did not support an attorney’s fee award. Trans-Country Van Lines, Inc. v. Kronick, 497 So. 2d 923, 1986 Fla. App. LEXIS 10966 (Fla. 5th DCA 1986).

368. Where real estate company lost a suit it filed for a brokerage commission under its oral listing agreement with seller based on seller’s alleged inexcusable refusal to close on the sale of the subject property after real estate company had fully performed under the listing agreement, there was not a complete absence of a justiciable issue of law or fact raised by the losing party so as to justify an award of attorney’s fees under Fla. Stat. § 57.105, despite a written modification of the oral listing agreement requiring a closing as a pre-condition to payment of a brokerage commission. Keyes Co. v. Friedes, 497 So. 2d 916, 1986 Fla.

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App. LEXIS 10534 (Fla. 3rd DCA 1986).

369. Appeal from an order awarding attorney’s fees pursuant to Fla. Stat. § 57.105 was dismissed because it was a nonappealable non-final order. Crest Pontiac, Inc. v. Robinson, 495 So. 2d 900, 1986 Fla. App. LEXIS 10076 (Fla. 1st DCA 1986).

370. The trial court did not err in awarding attorney’s fees to the subcontractor pursuant to Fla. Stat. § 57.105 after the general contractor filed a notice of voluntary dismissal of its action against the subcontractor for contribution in conjunction with the settlement of the separate personal injury lawsuit, and the record supported the finding that subcontractor was not involved in the underlying accident which was the subject of the personal injury lawsuit. B.R. Fries & Associates, Inc. v. Dublin Co., 494 So. 2d 291, 1986 Fla. App. LEXIS 9768 (Fla. 3rd DCA 1986).

371. Vendor of an agreement for deed who intervened in an action to levy on the real property subject to the agreement for deed brought by vendee’s creditor was not entitled to attorney’s fees where justiciable issues existed to preclude the award. Accent Realty of Jacksonville, Inc. v. Crudele, 496 So. 2d 158, 1986 Fla. App. LEXIS 9658 (Fla. 3rd DCA 1986).

372. Property seller was not entitled to an award of attorney’s fees pursuant to Fla. Stat. § 57.105 in an action against the seller by the real estate broker to recover his commission, where the directed verdict, which had been entered for the seller, was reversed on appeal and factual issues remained as to whether the broker had a right to his commission. Burton v. Merritts Properties, Ltd., 484 So. 2d 1328, 1986 Fla. App. LEXIS 6875 (Fla. 3rd DCA 1986).

373. An award of attorney’s fees to the county was proper in an action where parents sued the county for injuries to their child caused by an employee of the county who negligently operated a vehicle, because the driver was not an employee of the county and the parents could have discovered that fact with reasonable diligence. L. L. v. Zipperer, 484 So. 2d 92, 1986 Fla. App. LEXIS 6726 (Fla. 5th DCA 1986).

374. Where respondent failed to appear at a full hearing on the merits of movant’s claim for attorney fees under Fla. Stat. § 57.105, judgment was not entered in violation of due process or upon default under Fla. R. Civ. P. 1.500 and, therefore, was not subject to respondent’s motion to set aside under Fla. R. Civ. P. 1.540(b). Niki Unlimited, Inc. v. Legal Services of Greater Miami, 483 So. 2d 46, 1986 Fla. App. LEXIS 5845 (Fla. 3rd DCA 1986).

375. Plaintiff was not entitled to attorney’s fees under Fla. Stat. § 57.105 where he was unable to demonstrate that defendant’s position was so devoid of merit, both in fact and law, as to have been completely untenable and frivolous. Burnett v. Brito, 478 So. 2d 845, 1985 Fla. App. LEXIS 16647 (Fla. 3rd DCA 1985).

376. The trial court lacked authority to order the payment of legal fees incurred by the owner of a vehicle that was improperly seized and sold by the sheriff’s department, because the fees incurred in seeking damages were not awarded pursuant to Fla. Stat. § 57.105, and because there were no extraordinary circumstances or a contract that would have justified the award. In re Forfeiture of 1978 Green Datsun Pickup Truck, 475 So. 2d 1007, 1985 Fla. App. LEXIS 15918 (Fla. 2nd DCA 1985).

377. Nothing about the language of Fla. Stat. § 57.105 excludes an intervening party from its applicability. Ferrara v. Caves, 475 So. 2d 1295, 1985 Fla. App. LEXIS 15894 (Fla. 4th DCA 1985).

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378. Taxpayers were not entitled to attorney fees under Fla. Stat. § 57.105 from the county appraiser where taxpayers prevailed on their claim that the assessments on their condominium units were excessive, but where the appraiser’s defense was not clearly devoid of merit because the assessments were upheld by the county’s property appraisal board and Fla. Stat. § 194.181 made the appraiser responsible for defending the county’s tax roll. Schultz v. Williams, 472 So. 2d 1347, 1985 Fla. App. LEXIS 14426 (Fla. 2nd DCA 1985).

379. Because an order granting a request for attorney’s fees was presumably based upon Fla. Stat. § 57.105 and failed to contain a finding by the trial court that there was a complete absence of a justiciable issue, the award was reversed. Holland International, Inc. v. Pollack, 471 So. 2d 129, 1985 Fla. App. LEXIS 14599 (Fla. 3rd DCA 1985).

380. Attorney’s fees were properly awarded against a landowner who filed an ejectment and trespass suit against a neighboring former landowner without any evidentiary basis for the suit. Parrino v. Ayers, 469 So. 2d 837, 1985 Fla. App. LEXIS 14263 (Fla. 5th DCA 1985).

381. Where an action for damages is filed against a trial judge personally for his official actions, and the trial judge is represented by both the attorney general and personally retained counsel, and the trial judge prevails, under Fla. Stat. § 57.105 the trial judge will not be entitled to attorney’s fees if the personal attorney merely joins in the motions of the attorney general and parrots his statements. Salfi v. Ising, 464 So. 2d 687, 1985 Fla. App. LEXIS 12654 (Fla. 5th DCA 1985).

382. To properly award attorney fees pursuant to Fla. Stat. § 57.105, it is necessary to find that the entire action, not just a portion of it, is devoid of merit both as to law and fact. Glover v. School Bd., 462 So. 2d 116, 1985 Fla. App. LEXIS 11931 (Fla. 2nd DCA 1985).

383. An award of attorneys’ fees to defendants in a foreclosure action, under the authority of Fla. Stat. § 57.105, was inappropriate because the record supported a finding that the action was not completely devoid of merit where the plaintiff raised a legally supportable argument with respect to the right of a creditor to initiate foreclosure to protect a mortgage from risk. United Cos. Financial Corp. v. Hughes, 460 So. 2d 585, 1984 Fla. App. LEXIS 16085 (Fla. 2nd DCA 1984).

384. In an action involving a dispute between a condominium association and its directors, lessors were not entitled to recovery of their attorney’s fees as Fla. Stat. § 607.014 was not applicable to the not-for-profit corporation. Penthouse North Ass'n v. Lombardi, 461 So. 2d 1350, 1984 Fla. LEXIS 3662 (Fla. 1984).

385. An award of attorney fees pursuant to Fla. Stat. § 57.105 for bringing suit against a person who did not own the automobile involved in an accident was reversed, because there was nothing in a letter from the Department of Highway Safety and Motor Vehicles that negated the accident report’s identification of the person as the owner of the vehicle, because the fact that the person was voluntarily dismissed from the suit did not mean that it was frivolous to join her in the first place, because designation of the person as an owner rather than a bailee did not make her joinder as a defendant frivolous, because the person was present as a passenger in the car at the time of the accident, and was identified by someone at the scene to the investigating officer as the owner, and because there was no information contrary to ownership in possession of plaintiffs’ counsel at the time the suit was filed. McHan v. Huggins, 459 So. 2d 1172, 1984 Fla. App. LEXIS 16427 (Fla. 5th DCA 1984).

386. Because an award of attorney’s fees was to be treated as costs and the trial court’s reservation of jurisdiction to award costs did not affect the finality of the judgment on the merits, the failure to timely appeal the final judgment on the merits precluded raising matters concluded by that judgment in an appeal from the judgment awarding attorney’s fees. Grasland v. Taylor Woodrow Homes, Ltd., 460 So. 2d 940, 1984 Fla. App. LEXIS 16074 (Fla. 2nd DCA 1984).

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387. An attorney fee award under Fla. Stat. § 57.105 was affirmed where the trial court determined, on the record, that an earlier appeal involved no justiciable issues and that on appeal a party was attempting to relitigate in state court issues already decided adversely in federal court. O'Brien v. Brickell Townhouse, Inc., 457 So. 2d 1123, 1984 Fla. App. LEXIS 15563 (Fla. 3rd DCA 1984).

388. Defendants, a county and the state Department of Transportation, were not entitled to attorney fees under Fla. Stat. § 57.105 because plaintiff accident victim’s complaint alleging defendants’ negligence was neither completely untenable nor devoid of substance. Wall v. Department of Transp., 455 So. 2d 1138, 1984 Fla. App. LEXIS 15068 (Fla. 2nd DCA 1984).

389. An award of attorney’s fees against mortgagees who unsuccessfully sought to foreclose a purchase money mortgage against the parties who acquired the subject property from the original mortgagors was reversed because the evidence was not overwhelming enough to allow the trial judge to find that mortgagees were lying in claiming that they did not receive mortgage checks for two months. Snow v. Rosse, 455 So. 2d 615, 1984 Fla. App. LEXIS 14836 (Fla. 4th DCA 1984).

390. Where a party sued an attorney in replevin to gain files not in the attorney’s possession, the attorney was entitled to recover fees for his own time and effort pursuant to Fla. Stat. § 57.105. Friedman v. Backman, 453 So. 2d 938, 1984 Fla. App. LEXIS 14676 (Fla. 4th DCA 1984).

391. Plaintiff whose claim was nonfrivolous at its inception should not be assessed with attorney’s fees under Fla. Stat. § 57.105, even though at some point in the course of litigation it became apparent that there no longer remained any justiciable issue of law or fact. Klein v. Layne, Inc. of Florida, 453 So. 2d 203, 1984 Fla. App. LEXIS 14065 (Fla. 4th DCA 1984).

392. In an action on a contract where the plaintiffs knew they had served the wrong party but held depositions first rather than dismiss, the defendant was entitled to attorney’s fees. Keen v. Bernardo, 452 So. 2d 1133, 1984 Fla. App. LEXIS 14193 (Fla. 2nd DCA 1984).

393. Attorney’s fees were not warranted pursuant to Fla. Stat. § 57.105 where the opposing party’s position was not frivolous and where there was no provision in the final executed deed for attorney’s fees. Gordon v. Bartlett, 452 So. 2d 1077, 1984 Fla. App. LEXIS 14292 (Fla. 4th DCA 1984).

394. An award of attorney’s fees was justified under Fla. Stat. § 57.105 because plaintiff taxpayer’s claim was not so devoid of merit that it was frivolous. Bull v. Atlantic Beach, 450 So. 2d 570, 1984 Fla. App. LEXIS 13031 (Fla. 1st DCA 1984), rev'd, 463 So. 2d 336, 1985 Fla. App. LEXIS 11850 (Fla. 1st DCA 1985).

395. There was no error in the trial court’s refusal to award attorneys’ fees to the mortgagors under Fla. Stat. § 57.105, where the trial court could fairly conclude that the bank’s position was not so devoid of merit, both on the facts and the law, as to be completely untenable and frivolous. Atlantic Nat'l Bank v. Tworoger, 448 So. 2d 616, 1984 Fla. App. LEXIS 12737 (Fla. 3rd DCA 1984).

396. An award of attorney’s fees to a witness under Fla. Stat. § 57.105 for failure to state a cause of action was improper where the complaint pleaded all the required elements to state a cause of action for malicious prosecution. Wright v. Yurko, 446 So. 2d 1162, 1984 Fla. App. LEXIS 12190 (Fla. 5th DCA 1984).

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397. Alleged biological father of a child was not entitled to attorney fees under Fla. Stat. § 57.105 after he was absolved of responsibility for the child because the Florida Department of Health and Rehabilitative Services’ action against defendant was brought in good faith. Florida Dep't of Health & Rehabilitative Services v. Cisneros, 446 So. 2d 727, 1984 Fla. App. LEXIS 12275 (Fla. 2nd DCA 1984).

398. Corporate defendant was entitled to an award of attorney’s fees under Fla. Stat. § 57.105 after the trial court dismissed the action with prejudice, finding the complete absence of a justiciable issue of either law or fact between the parties, because once the determination had been made by the trial court that there was a complete absence of a justiciable issue of law or fact, the award of attorney’s fees to the prevailing party who properly moved for such fees was required. Debra, Inc. v. Orange County, 445 So. 2d 404, 1984 Fla. App. LEXIS 11840 (Fla. 5th DCA 1984).

399. Where summary judgment was granted in favor of business owner because the statute of frauds barred recovery under an oral contract, it was improper to award attorney fees under Fla. Stat. § 57.105 because they could only be awarded where there was a complete absence of a justiciable issue of either law or fact raised by the losing party. BYAM v. KLOPCICH, 1984 Fla. App. LEXIS 11639 (Fla. 4th DCA Feb. 8, 1984).

400. Where a complaint was fatally defective for attempting to relitigate issues foreclosed by an administrative proceeding, defendants’ remedy for defending on issues totally without merit or substance was a motion for attorney’s fees under Fla. Stat. § 57.105. Board of Trustees v. Ray, 444 So. 2d 1110, 1984 Fla. App. LEXIS 11611 (Fla. 4th DCA 1984).

401. Attorney’s fees could not be awarded to a prevailing plaintiff under Fla. Stat. § 57.105 solely on the basis of defendant’s failure to answer the lawsuit. Fritillary Holdings, Inc. v. Pat & Mae's Danceland Club, Inc., 443 So. 2d 506, 1984 Fla. App. LEXIS 11339 (Fla. 4th DCA 1984).

402. Where a landowner’s complaint alleged that the registered surveyor failed to show on the survey the streets and lot lines contained in a plat of record, the complaint stated a cause of action and it was improper to award attorney fees to the surveyor, under Fla. Stat. § 57.105, on the ground that it was a frivolous lawsuit, without going beyond the pleadings. Vogel v. Allen, 443 So. 2d 368, 1983 Fla. App. LEXIS 25427 (Fla. 5th DCA 1983).

403. Defendants were erroneously awarded attorney’s fees pursuant to Fla. Stat. § 57.105 where a claim filed by plaintiff did not initially appear baseless; the statute was intended to discourage baseless claims by attaching costs to their pursuit, not to cast a chilling effect on the use of the courts. Stevenson v. Rutherford, 440 So. 2d 28, 1983 Fla. App. LEXIS 23478 (Fla. 4th DCA 1983).

404. The insured was liable for attorney fees under Fla. Stat. § 57.105 where his insurer brought a declaratory judgment action to show that it was not liable in an underlying personal injury lawsuit because there were no justiciable issues that could have been raised in defense. American Glass Industries, Inc. v. Allstate Ins. Co., 441 So. 2d 672, 1983 Fla. App. LEXIS 22686 (Fla. 2nd DCA 1983).

405. A finding that the former partner was merely attempting to relitigate issues submitted to arbitration was not sufficient to satisfy the requirements under Fla. Stat. § 57.105 for an award of attorney’s fees to the other prevailing former partner because there was not a complete absence of a justiciable issue of either law or fact raised by the losing party. Harris v. Haught, 435 So. 2d 926, 1983 Fla. App. LEXIS 19952 (Fla. 1st DCA 1983).

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406. Hospital was not entitled to attorney’s fees pursuant to Fla. Stat. § 57.105 because terminated employee had a bona fide dispute as to the definiteness of the term of employment and because of questions surrounding the employee’s termination. Nunes v. Margate General Hospital, Inc., 435 So. 2d 916, 1983 Fla. App. LEXIS 22367 (Fla. 4th DCA 1983).

407. An attorney’s fees provision in a contract that required that a subcontractor pay the fees in any action the subcontractor brought against the contractor in which the subcontractor did not recover the full amount for which the subcontractor sued violated the legislative policy of Fla. Stat. § 57.105 and was construed to only allow for attorney’s fees to the prevailing party. P & C Thompson Bros. Constr. Co. v. Rowe, 433 So. 2d 1388, 1983 Fla. App. LEXIS 20857 (Fla. 5th DCA 1983).

408. In a suit to recover brokerage commissions due, where the assignee of a contract of sale knew that the assignor had agreed to pay the brokerage commissions, the defense by the assignee that he never adopted or expressly assumed the obligations of that particular agreement was as a matter of law unavailing, but not so devoid of merit as to constitute a frivolous defense justifying an award of attorneys’ fees pursuant to Fla. Stat. § 57.105. Cusick v. Condominium Marketing Consultants, 434 So. 2d 25, 1983 Fla. App. LEXIS 20867 (Fla. 3rd DCA 1983).

409. The fact that a condominium association and others sued the corporation over defects in sprinkler system, coupled with the fact that third party performed some work on the sprinkler system, was sufficient to defeat the third party’s contention that the third party action involved a complete absence of a justiciable issue of either fact or law; therefore, the third party was not entitled to attorney’s fees pursuant to Fla. Stat. § 57.105. Angora Enterprises v. Condominium Asso. of Lakeside Village, Inc., 432 So. 2d 792, 1983 Fla. App. LEXIS 20007 (Fla. 4th DCA 1983).

410. Award of attorney fees under Fla. Stat. § 57.105 was reversed because there was neither contractual nor statutory basis to support such an award. Sheriff of Alachua County v. Hardie, 433 So. 2d 15, 1983 Fla. App. LEXIS 19539 (Fla. 1st DCA 1983).

411. The wife was entitled to alimony where the record on review supported the trial court’s decision, but the husband was not entitled to attorney’s fees pursuant to Fla. Stat. § 57.105 where he had not sought the fees. Rosen v. Rosen, 426 So. 2d 1052, 1983 Fla. App. LEXIS 18542 (Fla. 3rd DCA 1983).

412. Fla. Stat. § 57.105 requires an award of attorney’s fees if the court finds a complete absence of a justiciable issue raised by the losing party. Central Florida Machinery Co. v. Williams, 424 So. 2d 201, 1983 Fla. App. LEXIS 18450 (Fla. 2nd DCA 1983).

413. An award of attorney’s fees to a purchaser after he successfully defended seller’s counterclaim was not proper pursuant to Fla. Stat. § 57.105 when the counterclaim grew out of the contract which was the subject matter of purchaser’s underlying complaint. Williams v. Stewart, 424 So. 2d 206, 1983 Fla. App. LEXIS 18438 (Fla. 2nd DCA 1983).

414. A city was entitled under Fla. Stat. § 57.105 to reasonable attorney’s fees from a church and its educational institution following the disposition in favor of the city in the underlying action, such fees to be based on the value of the services rendered to it rather than on the hourly rate derived from the salary of house counsel representing the city; reliance on prevailing market rates for attorneys with comparable skill and experience discouraged baseless claims, avoided the need to investigate the ramifications of the city attorney’s overhead, and simplified the difficult task of awarding reasonable fees. Boca Raton v. Faith Baptist Church, 423 So. 2d 1021, 1982 Fla. App. LEXIS 22207 (Fla. 4th DCA 1982).

415. Third-party defendant subcontractor was entitled to an award of attorney’s fees and costs under Fla. Stat. § 57.105 because third-party plaintiff contractor did not have a valid claim for contribution and had dismissed all claims against

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subcontractor after failing to present any evidence of negligence or bad faith. Puder v. Raymond International Builders, Inc., 424 So. 2d 78, 1982 Fla. App. LEXIS 21879 (Fla. 3rd DCA 1982).

416. When entering the award of attorney’s fees to appellee, the court did not make a finding that there was a complete absence of a justiciable issue raised by appellant, and an explicit finding was to be made before an order awarding attorney’s fees under Fla. Stat. § 57.105 would be upheld. Apgar & Markham Constr., Inc. v. Macasphalt, Inc., 424 So. 2d 41, 1982 Fla. App. LEXIS 21844 (Fla. 2nd DCA 1982).

417. In the first attempt to assert liability against the state because of the alleged negligence of a prosecuting attorney since sovereign immunity was waived by Fla. Stat. § 768.28, the action could not be classified as frivolous merely because it was unsuccessful; it was a good faith effort to seek an interpretation of a new statute, and was at least arguable, so appellants should not have been penalized pursuant to Fla. Stat. § 57.105 for their unsuccessful efforts to expand the scope of the law by judicial interpretation. Russell v. State, 417 So. 2d 1119, 1982 Fla. App. LEXIS 20837 (Fla. 5th DCA 1982).

418. Appellant’s claim that appellee was bound by the terms of a covenant not to compete, although unsuccessful, was clearly not frivolous; therefore, the trial court erred in retaining jurisdiction to consider an award to appellee of attorney’s fees under Fla. Stat. § 57.105. All-Brite Sales Co. v. Roderick, 416 So. 2d 1202, 1982 Fla. App. LEXIS 20456 (Fla. 1st DCA 1982).

419. Pursuant to Fla. Stat. § 57.105, an appellate respondent was entitled to a reasonable attorney’s fee where the court found the petitioner’s petition moot as to one issue and premature as to another, making the suit devoid of a justiciable issue of either law or fact. Cicenia v. Mitey Mite Race Tracks, 415 So. 2d 128, 1982 Fla. App. LEXIS 20801 (Fla. 4th DCA 1982).

420. Plaintiff employee was entitled to an award of attorney’s fees under Fla. Stat. § 57.105 where there was a complete absence of justiciable issues of law raised by defendant superintendent and the superintendent had refused to sign plaintiff employee’s paychecks because employee, an employee of the school board, took orders from the school board rather than the superintendent. Doyal v. School Bd., 415 So. 2d 791, 1982 Fla. App. LEXIS 20231 (Fla. 1st DCA 1982).

421. Even though summary judgment was granted in defendant’s favor on plaintiff’s claim under a group insurance policy on the life of her husband against the alleged administrator of the group, because plaintiff’s husband did not qualify as an insured under the policy, and the defendant was not the administrator of the policy, defendant was not entitled to attorney’s fees under Fla. Stat. § 57.105 because there were justiciable issues in the initial pleading stages. Greenberg v. Manor Pines Realty Corp., 414 So. 2d 260, 1982 Fla. App. LEXIS 20691 (Fla. 4th DCA 1982).

422. Although a party abandoned an agreement to settle a case after the opposing party’s counsel drafted a voluminous settlement agreement, the opposing party was not entitled to recover the attorney’s fees pursuant to Fla. Stat. § 57.105, merely because the party had frustrated a settlement agreement. Steinhardt v. Eastern Shores White House Asso., 413 So. 2d 785, 1982 Fla. App. LEXIS 19739 (Fla. 3rd DCA 1982).

423. Fla. Stat. § 57.105 requires that a prevailing party’s attorney fees be paid when the prevailing party is impelled by the losing party to waste judicial resources and needlessly expend his or her own time and money; this can occur either when a losing party raises issues that are not justiciable or when the losing party has forced the prevailing party to resort to the courts even though there are no justiciable issues that can be raised in defense. Castaway Lounge of Bay County v. Reid, 411 So. 2d 282, 1982 Fla. App. LEXIS 19517 (Fla. 1st DCA 1982).

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424. Because an award of attorney’s fees is a matter of substantive law properly under the aegis of the legislature, Fla. Stat. § 57.105 is not an unconstitutional impingement of the court’s procedural rulemaking authority under Fla. Const. art. V, § 2. Whitten v. Progressive Casualty Ins. Co., 410 So. 2d 501, 1982 Fla. LEXIS 2356 (Fla. 1982), overruled in part, Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145, 1985 Fla. LEXIS 3238 (Fla. 1985), overruled in part as stated in Carnival Leisure Indus. v. Holzman, 660 So. 2d 410, 1995 Fla. App. LEXIS 9909 (Fla. 4th DCA 1995), superseded by statute as stated in McPherson v. Bittner, 126 So. 3d 1230, 2012 Fla. App. LEXIS 18499 (Fla. 4th DCA 2012).

425. Summary judgment rendered pursuant to Fla. R. Civ. P. 1.150(c), upon a showing that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law, is not equivalent to the finding of frivolousness required by Fla. Stat. § 57.105 for an award of attorney’s fees. Whitten v. Progressive Casualty Ins. Co., 410 So. 2d 501, 1982 Fla. LEXIS 2356 (Fla. 1982), overruled in part, Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145, 1985 Fla. LEXIS 3238 (Fla. 1985), overruled in part as stated in Carnival Leisure Indus. v. Holzman, 660 So. 2d 410, 1995 Fla. App. LEXIS 9909 (Fla. 4th DCA 1995), superseded by statute as stated in McPherson v. Bittner, 126 So. 3d 1230, 2012 Fla. App. LEXIS 18499 (Fla. 4th DCA 2012).

426. Appeal of a trial court’s final judgment did not deprive the trial court of jurisdiction to award attorney fees pursuant to Fla. Stat. § 57.105 as part of the final judgment in connection with a subsequent motion for rehearing because the motion was frivolous and had been filed solely for the purpose of delay. Ruby Mountain Constr. & Dev. Corp. v. Raymond, 409 So. 2d 525, 1982 Fla. App. LEXIS 19230 (Fla. 5th DCA 1982).

427. Because there was a justiciable issue as to whether appellant husband was entitled to have the marital home partitioned, the trial court’s award of attorney’s fees to appellee wife under Fla. Stat. § 57.105 was improper. Cannon v. Morris, 407 So. 2d 372, 1981 Fla. App. LEXIS 21979 (Fla. 1st DCA 1981).

428. Where a prevailing defendant’s motion for attorney’s fees was based entirely upon Fla. Stat. § 57.105 the required finding that there was a complete absence of a justiciable issue of either law or fact raised by the losing party was implicit in an order that granted the motion. WEST FLAGLER ASSOCS. v. ASSOCIATED INTL. INS. CO., 1981 Fla. App. LEXIS 21856 (Fla. 3rd DCA Dec. 8, 1981).

429. The bank’s request for attorney’s fees on appeal under Fla. Stat. § 57.105 was denied because the arguments were not frivolous in this action brought to recover a brokerage commission. Belcher v. First Nat'l Bank, 405 So. 2d 754, 1981 Fla. App. LEXIS 21484 (Fla. 3rd DCA 1981), disapproved as stated in Benton Inv. Co. v. Wal-Mart Stores, 704 So. 2d 130, 1997 Fla. App. LEXIS 11568 (Fla. 1st DCA 1997).

430. Defendant was entitled to an award of attorney’s fees as the prevailing party under Fla. Stat. § 57.105 where a plaintiff homeowner sued defendant, a city attorney, alleging defendant was the administrator in charge of roadway construction and was negligent in authorizing the raising of a road that abutted plaintiff’s property thereby causing damage to the property and plaintiff’s counsel admitted that defendant may not have been responsible for roadway construction but that plaintiff did want to get the proper party. Galbraith v. Inglese, 402 So. 2d 574, 1981 Fla. App. LEXIS 20902 (Fla. 4th DCA 1981).

431. Attorney’s fees were not justified under Fla. Stat. § 57.105 in an action seeking reformation or rescission of an executed contract between the parties whereby one party sold the other a parcel of real estate and the residential structure thereon. Natarajan v. Horn, 402 So. 2d 596, 1981 Fla. App. LEXIS 20878 (Fla. 2nd DCA 1981).

432. Award of attorney’s fees to appellees was reversed on appeal since the suit was not frivolous, because appellants demonstrated that the rezoning was inconsistent with appellees’ comprehensive land use plan where planning expert testified

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that the rezoning was incompatible with surrounding uses and did not bear a substantial relationship to the health, safety and welfare of the community. Braden River Civic Ass'n v. Manatee County, 403 So. 2d 1007, 1981 Fla. App. LEXIS 20385 (Fla. 2nd DCA 1981).

433. In an action to recover costs of husband’s hospitalization, hospital’s action against wife was improperly dismissed and the court improperly awarded her attorney’s fees because the wife was liable for her husband’s necessaries, including his medical bills, and the hospital’s action was not frivolous under Fla. Stat. § 57.105, but merely a good faith attempt to challenge existing law. Parkway Gen. Hosp. v. Stern, 400 So. 2d 166, 1981 Fla. App. LEXIS 20326 (Fla. 3rd DCA 1981), overruled, Shands Teaching Hosp. & Clinics v. Smith, 497 So. 2d 644, 1986 Fla. LEXIS 2826 (Fla. 1986), overruled as stated in Connor v. Southwest Fla. Regional Medical Ctr., 668 So. 2d 175, 1995 Fla. LEXIS 2039 (Fla. 1995).

434. Where litigation ensued when the city cleared the corporation’s lot and imposed a lien for the expenses, the trial court erred in awarding attorney fees to the corporation under Fla. Stat. § 57.105 because, although the city’s position was erroneous on the merits, it was not frivolous. Deerfield Beach v. Oliver-Hoffman Corp., 396 So. 2d 1187, 1981 Fla. App. LEXIS 19227 (Fla. 4th DCA 1981).

435. Plaintiff who prevailed in a civil action was not entitled to an award of attorney’s fees under Fla. Stat. § 57.105 where defendant failed to appear in the action and a final judgment was thereafter entered in the plaintiff’s favor upon a default. Sachs v. Hoglund, 397 So. 2d 447, 1981 Fla. App. LEXIS 19348 (Fla. 3rd DCA 1981).

436. Award of attorney’s fees to homeowner under Fla. Stat. § 57.105 was proper because the builder did not prove the essential elements of tortious interference with an advantageous business relationship where the builder failed to show an interference with that relationship by the homeowner’s letter of complaint to the association nor any damage from the complaint. Kisling v. Wooldridge, 397 So. 2d 747, 1981 Fla. App. LEXIS 19383 (Fla. 5th DCA 1981).

437. An award of attorney’s fees to a bank that prevailed against a temporary agency on summary judgment was improper because no claim was made for the award under Fla. Stat. § 57.105, and the defense raised by the temporary agency presented a justiciable legal argument. Hartman Services, Inc. v. Southeast First Nat'l Bank, 399 So. 2d 404, 1981 Fla. App. LEXIS 20022 (Fla. 3rd DCA 1981).

438. An award of attorney fees to defendant was not appropriate because there was no finding of a complete absence of a justiciable issue of law or fact in plaintiff’s suit to revoke the probate of decedent’s will because of undue influence. Allen v. Estate of Dutton, 394 So. 2d 132, 1980 Fla. App. LEXIS 17743 (Fla. 5th DCA 1980).

439. Fla. Stat. § 57.105 pertains to appellate proceedings in civil cases and does not authorize the court to assess an attorney’s fee against the state for appellate proceedings in a criminal case. State v. Lochiatto, 381 So. 2d 245, 1980 Fla. App. LEXIS 15701 (Fla. 4th DCA 1980).

440. The trial court was authorized to award attorney’s fees to the prevailing party in a civil contempt proceeding against a municipality under Fla. Stat. § 57.105; however, the trial court was required to make a finding that there was a complete absence of a justiciable issue of either law or fact raised by the losing party. Miami Beach v. Bay Harbor Islands, 380 So. 2d 1112, 1980 Fla. App. LEXIS 16072 (Fla. 3rd DCA 1980).

441. To entitle a party to an award of attorney’s fees under Fla. Stat. § 57.105, the court must find that there was a complete absence of a justiciable issue of either law or fact raised by the losing party. Allen v. Estate of Dutton, 384 So. 2d 171, 1980

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Fla. App. LEXIS 16183 (Fla. 5th DCA 1980).

442. An appeal of the lower court’s failure to award attorney fees under Fla. Stat. § 57.105 was premature where the court had not denied the request, and had not yet ruled on it. Moore v. Florida State Bank, 386 So. 2d 867, 1980 Fla. App. LEXIS 17334 (Fla. 1st DCA 1980).

443. Patient should not have had attorney’s fees taxed against him pursuant to Fla. Stat. § 57.105 following dismissal of his medical malpractice action even though no justiciable issue of law or fact existed, because Fla. Stat. § 57.105 did not become effective until approximately a year and a half after the commencement of the patient’s action and was not retroactive; the statute did not create a new procedural device, it created a new right. Love v. Jacobson, 390 So. 2d 782, 1980 Fla. App. LEXIS 18154 (Fla. 3rd DCA 1980).

444. Pursuant to Fla. Stat. § 57.105, a court shall award a reasonable attorney’s fee to the prevailing party in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party; however, an appeal was not frivolous where a substantial justiciable question could be pulled out of it, or from any part of it, even though such question was unlikely to be decided other than as the lower court decided it. T.I.E. Communications, Inc. v. Toyota Motors Center, Inc., 391 So. 2d 697, 1980 Fla. App. LEXIS 18263 (Fla. 3rd DCA 1980).

445. A trial court improperly awarded attorney fees pursuant to Fla. Stat. § 57.105 to the purchaser of property who successfully sought specific performance when the owner refused to close, because while the acquiring purchaser, as the prevailing party, was entitled to fees under the statute because there was a complete absence of a justiciable issue as to the seller’s liability, the purchaser was not entitled to an attorney’s fee with respect to the issue of damages, given the substantial issues of fact raised as to the governing interest rate for the assumed mortgage. Hernandez v. Leiva, 391 So. 2d 292, 1980 Fla. App. LEXIS 18229 (Fla. 3rd DCA 1980).

Civil Procedure: Remedies: Costs & Attorney Fees: Attorney Expenses & Fees

446. Language of the final judgment regarding setoff of the company’s fees and costs against the note clearly contravened the parties’ express intent on that issue. The trial court could not rewrite the contract. SP Healthcare Holdings, LLC v. Surgery Ctr. Holdings, LLC, 208 So. 3d 775, 2016 Fla. App. LEXIS 18212 (Fla. 2nd DCA 2016).

447. Where plaintiff voluntarily dismissed her suit against defendants, a corporation and individuals, alleging breaches of non-compete contracts, the trial court erred in awarding the corporation attorney fees based on provisions in plaintiff's non-compete contracts with the individuals, because the corporation was not a party to those contracts. Shirley's Pers. Care Servs. of Okeechobee, Inc. v. Boswell, 165 So. 3d 824, 2015 Fla. App. LEXIS 8470 (Fla. 4th DCA 2015).

Civil Procedure: Remedies: Costs & Attorney Fees: Attorney Expenses & Fees: General Overview

448. As plaintiff was placed on notice by the pretrial statement that defendants, pursuant to the parties' contracts, sought attorney fees incurred in defending plaintiff's injunction counts, by failing to object, plaintiff waived their failure to request such fees in their answer; however, they were not entitled to fees for work related to the other counts of plaintiff's complaint. Shirley's Pers. Care Servs. of Okeechobee, Inc. v. Boswell, 165 So. 3d 824, 2015 Fla. App. LEXIS 8470 (Fla. 4th DCA 2015).

449. In an action wherein a county police department seized $129,000 from a claimant, who was a Colombian citizen, the trial court erred in rejecting the claimant's request for an award of fees pursuant to this section because the department knew before the forfeiture petition was filed that no sufficient probability existed to warrant a reasonable belief that the seized currency was

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connected to criminal activity and, as such, neither the facts nor the law supported in any fashion, the forfeiture sought. Garrido v. Miami-Dade Police Dep't (In re 100,000 Euros), 2015 Fla. App. LEXIS 2556 (Feb. 25, 2015).

450. Former husband was not entitled to attorney’s fees under a martial settlement agreement when a former wife failed to prevail in an emergency custody and contempt proceeding because neither party had defaulted; moreover, the application of Fla. Stat. § 57.105(7) was unnecessary since the fee provision applied to both parties equally. On remand, the trial court was directed to redetermine the wife’s entitlement to attorney’s fees for the work performed on her emergency motion using the standard for attorney’s fee awards under Fla. Stat. § 61.16. Sacket v. Sacket, 115 So. 3d 1069, 2013 Fla. App. LEXIS 9620 (Fla. 4th DCA 2013).

451. Buyers were not entitled to attorney’s fees on their counterclaim against seller because, while the parties’ sale contract contained an attorney’s fee provision, the seller sued only for breach of the order contract, and that document contained no attorney’s fees provision; the buyers pled no statutory basis for recovering attorney’s fees other than Fla. Stat. § 57.105(7). Tylinski v. Klein Auto., Inc., 90 So. 3d 870, 2012 Fla. App. LEXIS 8879 (Fla. 3rd DCA 2012).

452. Where there is a contractual basis for an award of legal fees, such fees may be awarded even if the only matter presented in the U.S. Bankruptcy Court for the Southern District of Florida is whether a previously liquidated debt should be excepted from discharge. Allen v. Entrust Admin. Servs. (In re Allen), 2012 Bankr. LEXIS 2444 (Bankr. S.D. Fla. May 30, 2012).

453. As a mortgagor and guarantor failed to plead entitlement to attorneys’ fees under Fla. R. Civ. P. 1.100(a) pursuant to the provisions of loan documents that were the subject of a mortgagee’s foreclosure action against them, as well as pursuant to Fla. Stat. § 57.105, a trial court’s award of such fees was error. BMR Funding, LLC v. DDR Corp., 67 So. 3d 1137, 2011 Fla. App. LEXIS 11903 (Fla. 2nd DCA 2011).

454. Homeowners association was entitled to attorney fees under Fla. Stat. § 57.105 against a bank because, while the bank initially claimed that it was entitled to bring a foreclosure action by virtue of an assignment, it was undisputed that the bank filed the suit without the assignment or other legal basis to file, and there was no reason to believe that the bank had standing; nothing suggested that the bank or its attorneys took any steps to confirm that the bank had the right to file suit, and the bank failed to respond to requests for admission filed by the homeowners association and never attempted to explain why it admitted that it lacked standing. The volume of foreclosure cases in the judicial system was not a matter that relieved the bank and its attorneys of their obligation to file pleadings that were adequately supported by a reasonable investigation before suit. S. Bay Lakes Homeowners Ass'n v. Wells Fargo Bank, N.A., 53 So. 3d 1239, 2011 Fla. App. LEXIS 1982 (Fla. 2nd DCA 2011).

455. In this case there was no evidence that the credit card creditor filed the complaint in bad faith, and the court did not find it appropriate to award debtor attorney’s fees under Fla. Stat. § 57.105(2). The court’s decision, however, did not foreclose the possibility in other cases, such as when there were indicia of bad faith. Chase Bank USA, N.A. v. Bower (In re Bower), 2010 Bankr. LEXIS 3380 (Bankr. M.D. Fla. 2010).

456. Court lacked authority to override the parties’ intent that the agreement be controlled by Florida law by applying the law of other jurisdictions. Accordingly, the officer’s argument had to be rejected because it asked the court to apply Oregon and California law to the provisions of the agreement, and Florida’s reciprocity statute, Fla. Stat. § 57.105(7) (2009) was not as broad as the California and Oregon reciprocity statutes, as it applied only if both parties to the lawsuit were parties to the contract; therefore, because the officer was not a party to the contract, Florida’s reciprocity statute did not apply, and the officer was not entitled to attorneys’ fees pursuant to the agreement. North. Am. Clearing, Inc. v. Brokerage Computer Sys., 688 F. Supp. 2d 1336, 2010 U.S. Dist. LEXIS 9746 (M.D. Fla. 2010), aff'd in part and rev'd in part, 395 Fed. Appx. 563, 2010 U.S.

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App. LEXIS 18427 (11th Cir. Fla. 2010).

457. Co-counsel complied with Fla. Stat. § 57.105(4) time requirements, having filed his motion with the trial court 32 days after it was served on the firm and its counsel. Further, the trial court’s determination that the firm and its attorney knew or should have known that their claims against the co-counsel for fraud, conspiracy to commit fraud, and tortious interference with contract were not supported by the material facts or the application of then-existing law to those material facts, and that the claims were not made in good faith, was supported by competent, substantial evidence. Montgomery v. Larmoyeux, 14 So. 3d 1067, 2009 Fla. App. LEXIS 6908 (Fla. 4th DCA 2009).

458. Trial court erred by awarding attorney fees to the former law partner because the partner did not comply with the time requirements of Fla. Stat. § 57.105; the statute clearly required that a motion seeking sanctions could not be filed within 21 days of service of the motion. The partner’s failure to comply with the mandatory requirements of § 57.105(4) did not constitute a procedural trap sprung on the unwary. Montgomery v. Larmoyeux, 14 So. 3d 1067, 2009 Fla. App. LEXIS 6908 (Fla. 4th DCA 2009).

459. Estate’s personal representative was entitled to have appellate attorney’s fees and costs assessed against both a trust beneficiary and his counsel; the fees and costs were themselves a damage resulting from breaches of a Global Settlement Agreement, and an entitlement to further fees and costs as a sanction was also included in an order requiring the beneficiary to dismiss a suit filed in Puerto Rico. This was one of those rare cases in which the court itself, exercising its authority under Fla. Stat. § 57.105 determined that the beneficiary and his current counsel had advanced arguments that a reasonable lawyer would have known were not well grounded in fact and were not supported by existing law or by a reasonable argument for the extension, modification, or reversal of existing law, as contemplated by R. Regulating Fla. Bar 4-3.1.. Hernandez v. de los Hernandez v. de los Angeles Gil, 998 So. 2d 651, 2008 Fla. App. LEXIS 18496 (Fla. 3rd DCA 2008).

460. Barton doctrine did not require defendants in a state court action instituted by a Chapter 7 trustee under 11 U.S.C.S. § 323 to obtain leave of the bankruptcy court before seeking monetary sanctions against the trustee and her special counsel under Fla. Stat. § 57.105. The court would not usurp the state court’s jurisdiction, interfere with its ability to control its own proceedings, or defeat the clear intent of the Florida legislature where federal policy concerns were not significantly present. In re Ridley Owens, Inc., 391 B.R. 867, 2008 Bankr. LEXIS 1978 (Bankr. N.D. Fla. 2008).

461. To determine who is the prevailing party for purposes of an award of attorney’s fees, the trial judge must determine from the record which party has in fact prevailed on the significant issues tried before the court. This “significant issue” test cannot be contractually modified. Port-A-Weld, Inc. v. Padula & Wadsworth Constr., Inc., 984 So. 2d 564, 2008 Fla. App. LEXIS 7224 (Fla. 4th DCA 2008).

462. As a clause in a contract between a subcontractor and a general contractor, stating that a party to a lawsuit would not be deemed the “prevailing party” for purposes of an award of attorney’s fees if its recovery was less than 75 percent of its claim, violated the mutuality principle of Fla. Stat. § 57.105(7) and public policy, it was unenforceable. Port-A-Weld, Inc. v. Padula & Wadsworth Constr., Inc., 984 So. 2d 564, 2008 Fla. App. LEXIS 7224 (Fla. 4th DCA 2008).

463. As a guaranty, read in conjunction with a note, contemplated liability to the note’s holder for its attorney’s fees if it prevailed, the guarantors, as the prevailing parties in a guaranty lawsuit brought against them by an assignee of the note, were entitled to reciprocal attorney’s fees under Fla. Stat. § 57.105(7). Riesterer v. Cadle Co. II, 981 So. 2d 644, 2008 Fla. App. LEXIS 7192 (Fla. 2nd DCA 2008).

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464. Father’s argument regarding the granting of attorney fees was not ripe for appellate review because the trial court did not fix the amount of fees to be paid and explicitly contemplated another hearing for that purpose. Ross v. Blank, 958 So. 2d 437, 2007 Fla. App. LEXIS 6632 (Fla. 4th DCA 2007).

Civil Procedure: Remedies: Costs & Attorney Fees: Attorney Expenses & Fees: American Rule

465. As the trial court's sanction of dismissal of a bank's residential foreclosure action was not warranted because it was too extreme, the award of fees and costs to the mortgagor also did not withstand challenge on appeal because she was not a prevailing party. H&R Block Bank v. Perry, 205 So. 3d 776, 2016 Fla. App. LEXIS 13525 (Fla. 2nd DCA 2016).

466. It was error to affirm the trial court's award of attorney's fees to a credit cardholder in an action by a collection agency, seeking to recover amounts allegedly due, because the agency failed to prove that it was an assignee of the contract, such that there was no contractual relationship between the parties upon which the award of fees could be based. HFC Collection Ctr., Inc. v. Alexander, 2015 Fla. App. LEXIS 16188 (Fla. 5th DCA 2015).

467. Although a foreclosure action was voluntarily dismissed by the mortgage holder, the mortgagor was not the prevailing party because the action was dismissed after the parties negotiated a short sale of the subject property and the compromises made as part of the negotiated sale meant that neither party actually achieved their litigation objectives. Kelly v. BankUnited, FSB, 2015 Fla. App. LEXIS 3956 (Mar. 18, 2015).

468. Where creditors failed to prove that loans and advances were nondischargeable under 11 U.S.C.S. § 523(a)(2)(A) or (a)(4), a Chapter 13 debtor was not entitled to attorney’s fees and costs under Fla. Stat. § 772.11 because the creditors did not plead or prosecute a theft, robbery, or exploitation cause of action against her, and the debtor was not entitled to attorney’s fees and costs under 11 U.S.C.S. § 523(d) because the debts owed by the debtor to the creditors were business debts, not consumer debts. However, the debtor was entitled to reasonable attorney’s fees and costs under Fla. Stat. § 57.105(7) because a nominee agreement between the parties contained a provision allowing attorney’s fees, and the adversary proceeding was, in part, an action to enforce the terms of that agreement. Kaplus v. Lorenzo (In re Lorenzo), 434 B.R. 695, 2010 Bankr. LEXIS 2260 (Bankr. M.D. Fla. 2010).

469. Entitlement to an attorney fee award under Fla. Stat. § 57.105(7) for enforcement of a note did not preclude an award to a bankruptcy debtor in a fraudulent transfer action, since entitlement to an award was required to be reciprocal. Jerk Mach., Inc. v. Bank of Am., N.A. (In re Jerk Mach., Inc.), 422 B.R. 327, 52 Bankr. Ct. Dec. (LRP) 198, 2010 Bankr. LEXIS 10 (Bankr. S.D. Fla. 2010).

470. Where a lender failed to establish any element to support nondischargeability of bankruptcy debtors’ loan debt to the lender based on alleged misrepresentations, the debtors were entitled to an award of attorney fees under Fla. Stat. § 57.105(7) since the loan documents provided that the lender could recover fees and costs in any action to enforce the loan agreement. CIT Small Bus. Lending Corp. v. Diaz (In re Diaz), 402 B.R. 407, 2008 Bankr. LEXIS 3808 (Bankr. M.D. Fla. 2008).

Civil Procedure: Remedies: Costs & Attorney Fees: Attorney Expenses & Fees: Bad Faith Awards

471. Award of fees to a trustee and trustee was warranted because it was clear that a judgment creditor's motion for fees was frivolous based on the law that prohibited such a fee award against impleaded defendants like the trust and trustee in supplementary proceedings, the repeated warnings and detailed legal analysis, and the creditor's attorney's continued failure to withdraw the motion. Paul v. Avrahami, 2017 Fla. App. LEXIS 5064 (Fla. 4th DCA 2017).

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472. Trial court erred when it denied a motion for attorney's fees by a trustee and his revocable trust, as a judgment creditor's attorney knew or should have known that his request for attorney's fees against them, arising from the trust and trustee being impleaded defendants in a supplementary proceeding involving a fraudulent transfer, was not supported by material facts or by the overwhelming case and statutory law at the time. Paul v. Avrahami, 2017 Fla. App. LEXIS 5064 (Fla. 4th DCA 2017).

473. Trial court erred in denying the employment firm's motions for attorney's fees and delay damages because the trial court analyzed and ruled on the motions based on the standard applicable to the pre-1999 version of the statute and not the present version. Infiniti Empl. Solutions, Inc, v. MS Liquidators of Ariz., LLC, 204 So. 3d 550, 2016 Fla. App. LEXIS 16565 (Fla. 5th DCA 2016).

474. Given the absence of a statutory provision providing that an award of attorney's fees pursuant to Fla. Stat. § 57.105 cannot be awarded in an action for injunction for protection against violence, and in light of the language in § 57.105 that its provisions applies to civil proceedings/actions and are supplemental to other sanctions/remedies, an award of attorney's fees pursuant to § 57.105 is not prohibited in an action under Fla. Stat. § 784.046. Hall v. Lopez, 213 So. 3d 1003, 2016 Fla. App. LEXIS 11493 (Fla. 1st DCA 2016).

475. Mortgagor's husband, who did not sign the note or the mortgage, was not entitled to an award of attorney's fees for being named as a defendant in the foreclosure proceeding because the mortgagee had an objectively reasonable belief, based on the checked box on the mortgage instrument, that the husband might have been a proper defendant. Trust Mortg., LLC v. Ferlanti, 193 So. 3d 997, 2016 Fla. App. LEXIS 8344 (Fla. 4th DCA 2016).

476. Trial court erred in awarding a utility attorney fees after appellant voluntarily dismissed his lawsuit, as the issue of whether it had a utility easement authorizing the installation of eight smart meters on appellant's single-family residence was arguably supportable under the facts and law and was not frivolous. Blinn v. Fla. Power & Light Co., 189 So. 3d 227, 2016 Fla. App. LEXIS 4000 (Fla. 2nd DCA 2016).

477. Trial court did not abuse its discretion in awarding appellee attorney's fees as a sanction for appellant's asserting a counterclaim that could not satisfy the statute of frauds; that she voluntarily dismissed the counterclaim did not divest the court of jurisdiction to award sanctions, as she failed to avail herself of this section's safe harbor provision after proper notice by appellee. Heldt-Pope v. Thibault, 198 So. 3d 650, 2015 Fla. App. LEXIS 17048 (Fla. 2nd DCA 2015).

478. Law firm that persistently pursued the former wife of a client seeking fees that it contended the client owed was ordered to pay the wife's attorney's fees in defending the claim pursuant to Fla. Stat. § 57.105, because the parties' marital home was homestead property protected by Fla. Const. art. X, § 4, and the husband could not waive the protection in a retainer agreement with his attorney. Law v. Law, 2015 Fla. App. LEXIS 4698 (Apr. 1, 2015).

479. Trial court did not abuse its discretion by awarding plaintiffs attorney fees under Fla. Stat. § 57.105, because defendants' motion to dismiss objecting to the court's jurisdiction and venue was not supported by the facts, and defendants and their counsel knew or should have known that to be the case at the time the defense was raised. Pronman v. Styles, 2015 Fla. App. LEXIS 3037 (Mar. 4, 2015).

480. While a Judge of Compensation Claims (JCC) properly denied an award of attorney's fees as not applicable to original proceedings in workers' compensation claims, the JCC applied an improper standard in determining that a videographer's costs were taxable because the JCC did not consider the reasonableness of the employee's strategic decision to videotape the testimony of adverse witnesses who might later testify and be cross-examined using the videotaped depositions. Lane v.

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Workforce Bus. Servs., 151 So. 3d 537, 2014 Fla. App. LEXIS 18441 (Fla. 1st DCA 2014).

481. Although there was substantial evidence supporting a trial court’s finding that an insured’s complaint was frivolous, the trial court’s order finding the title insurer entitled to $ 54,051.20 in fees under this statute was technically deficient because the order failed to include a specific finding regarding the complete absence of a justiciable issue in the insured’s cause of action. Palm Beach Polo Holdings, Inc. v. Stewart Title Guar. Co., 134 So. 3d 1073, 2014 Fla. App. LEXIS 153 (Fla. 4th DCA 2014).

482. Attorney’s fees incurred for seeking fees cannot be recovered when the basis for fees is Fla. Stat. § 57.105. Cox v. Great Am. Ins. Co., 88 So. 3d 1048, 2012 Fla. App. LEXIS 8741 (Fla. 4th DCA 2012).

483. Fla. Stat. § 57.105 could not serve as a basis for an award of attorney’s fees to a bank in a foreclosure action because the trial court did not find that the debtors’ claims were frivolous and did not conclude that a form affidavit from an expert witness, which was filed by the debtors’ attorney in a number of cases where the expert did not review the debtors’ records in the cases, was filed to cause unreasonable delay. Glarum v. LaSalle Bank N.A., 83 So. 3d 780, 2011 Fla. App. LEXIS 18175 (Fla. 4th DCA 2011).

484. Trial court abused its discretion in sanctioning an attorney because the attorney had a good faith factual and legal basis for making an argument. Santini v. Cleveland Clinic, 65 So. 3d 22, 2011 Fla. App. LEXIS 6663 (Fla. 4th DCA 2011).

485. Trial court made several due process errors with regard to sanctioning an attorney based on Fla. Stat. § 57.105. The most critical errors were not making express findings of bad faith and never holding a full evidentiary hearing regarding the paramount issue of good faith. Santini v. Cleveland Clinic, 65 So. 3d 22, 2011 Fla. App. LEXIS 6663 (Fla. 4th DCA 2011).

486. Award of attorney’s fees was affirmed because § 57.105(1), Fla. Stat., clearly and explicitly gave the trial court authority to award attorney’s fees to the prevailing party based on the court’s initiative. The former wife was provided with such reasonable notice when she was given time to file a memorandum setting forth her position on whether the court could impose sanctions on its own initiative. Koch v. Koch, 47 So. 3d 320, 2010 Fla. App. LEXIS 14078 (Fla. 2nd DCA 2010).

487. Attorney was properly required to pay attorney’s fees to plaintiffs in an underlying action under the inequitable conduct doctrine due to his conduct in, inter alia, restating objections to discovery that the trial court had already overruled; the doctrine had not been rendered obsolete as Fla. Stat. § 57.105(4) provided the statute was supplemental to other sanctions. Rosenberg v. Gaballa, 1 So. 3d 1149, 2009 Fla. App. LEXIS 325 (Fla. 4th DCA 2009).

488. Father and two of his children were entitled to summary judgment on their claim that a debt they were owed by a debtor, a third child who declared Chapter 7 bankruptcy, was nondischargeable under 11 U.S.C.S. § 523(a)(6) because it resulted from willful and malicious conduct. The debt was created when a Florida court awarded the father and the debtor’s siblings attorney fees and costs, pursuant to Fla. Stat. § 57.105, after it dismissed a lawsuit the debtor filed against his father, seeking a judgment that $ 2.4 million his father was awarded in an action he filed against his former business partners belonged to a trust the father created in 1977; the debtor was an attorney and a co-trustee for the trust until the trust was revoked in 1991, and he knew his father and mother revoked the trust ten years before he filed his action in state court. Kutchins v. Kutchins (In re Kutchins), 2008 Bankr. LEXIS 4362 (Bankr. M.D. Fla. Dec. 5, 2008).

489. Findings in support of an attorney’s fees award, that there was no evidence that plaintiff executed a condominium deed and that the allegation that she did was unsupported by material facts, were belied by record under circumstances in which an expert stated that there was not a high probability that plaintiff’s signature was forged, and a third party testified that he saw

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plaintiff sign the deed. Turovets v. Khromov, 943 So. 2d 246, 2006 Fla. App. LEXIS 18584 (Fla. 4th DCA 2006).

490. In an employee’s suit to recover overtime compensation under the Fair Labor Standards Act of 1938, a corporation and two individuals’ request for attorney’s fees under Fla. Stat. § 57.105 was denied; because the employee alleged that the corporation and two individuals had operational control over the enterprise where the employee worked, her complaint met the pleading requirements of Fed. R. Civ. P. 8 with regard to the definition of an “employer” under 29 U.S.C.S. § 203(d). Aikens v. FSG of SW Fla., Inc., 2006 U.S. Dist. LEXIS 62536 (M.D. Fla. Sept. 1, 2006).

491. Trial court’s failure to consider all of the evidence in deciding to grant a Fla. Stat. § 57.105 motion where it had granted summary judgment in a suit brought by one property owner against adjacent property owners was an abuse of discretion as it overlooked what knowledge the property owners actually had and instead concentrated on what they failed to do, both in the presuit stage and after suit was filed. Bowen v. Brewer, 936 So. 2d 757, 2006 Fla. App. LEXIS 14431 (Fla. 2nd DCA 2006).

Civil Procedure: Remedies: Costs & Attorney Fees: Attorney Expenses & Fees: English Rule

492. Trial court erred in denying a borrower's motion for attorney's fees because she became the prevailing party after the lender voluntarily dismissed its foreclosure action, the borrower properly pleaded her claims for attorney's fees pursuant to the attorney's fee provision in her mortgage, the lender was put on notice that she was seeking fees, and the lender did not move to strike the portion of the answer and affirmative defense seeking an award of attorney's fees. Mihalyi v. LaSalle Bank, N.A., 162 So. 3d 113, 2014 Fla. App. LEXIS 17641 (Fla. 4th DCA 2014).

493. In plaintiff’s action against defendant for breach of an oral contract to store and secure a boat, the trial court erred in finding that the oral contract violated the statute of frauds; because the contract could be performed within a year and was in fact fully performed, it was an exception to the statute of frauds. Because the court of appeal reversed the trial court’s order granting defendant’s motion to dismiss, the order awarding defendant attorney’s fees pursuant to Fla. Stat. § 57.105(1) was also reversed. Terzis v. Pompano Paint & Body Repair, Inc., 127 So. 3d 592, 2012 Fla. App. LEXIS 21770 (Fla. 4th DCA 2012).

Civil Procedure: Remedies: Costs & Attorney Fees: Attorney Expenses & Fees: Reasonable Fees

494. Trial court's finding that the construction company was entitled to reasonable legal fees was not based on substantial, competent evidence and thus constituted an abuse of discretion requiring reversal, because there was sufficient evidence to meet the requirement of legal malice for malicious prosecution. There was evidence that the company instituted a lien foreclosure action against them based on an invalid lien and persisted with the action knowing that the lien was invalid and had been released at the demand of the Department of Business and Professional Regulation. MacAlister v. Bevis Constr., Inc., 164 So. 3d 773, 2015 Fla. App. LEXIS 7955 (Fla. 2nd DCA 2015).

495. Attorney’s fees incurred for seeking fees cannot be recovered when the basis for fees is Fla. Stat. § 57.105. Cox v. Great Am. Ins. Co., 88 So. 3d 1048, 2012 Fla. App. LEXIS 8741 (Fla. 4th DCA 2012).

496. Trial court was required to clearly articulate the basis for a Fla. Stat. § 57.105 fee; although a trial court’s finding that a church was entitled to attorney’s fees in a contract action was proper, the order awarding attorney’s fees, which contained no findings of fact, was not, and required a remand. Sunset Park Church of God, Inc. v. Gay, 916 So. 2d 918, 2005 Fla. App. LEXIS 18245 (Fla. 5th DCA 2005).

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497. Amendment to Fla. Stat. § 57.105 changed the standard for granting fees. Previously, a movant had to show a complete absence of a justiciable issue of either law or fact raised by the losing party, but under the revised version, a movant need only show that the party and counsel “knew or should have known” that any claim or defense asserted was: (1) not supported by the facts, or (2) not supported by an application of “then-existing” law. Boca Burger, Inc. v. Forum, 912 So. 2d 561, 2005 Fla. LEXIS 1449 (Fla. 2005).

498. Award of attorney’s fees pursuant to Fla. Stat. § 57.105 was excessive when there was nothing complex about a case that an experienced attorney could not have handled in one-half the time claimed. Dalia v. Alvarez, 605 So. 2d 1282, 1992 Fla. App. LEXIS 10209 (Fla. 3rd DCA 1992).

499. Where an insured challenged the attorney fee awarded her pursuant to Fla. Stat. § 57.105 following the successful resolution of her personal injury protection benefits claim against the insurer, the insured was entitled to have the fee recalculated in the absence of any evidence in the record showing the grounds upon which the fee was based; the trial court failed to set forth how it arrived at the figure it did, the number of hours for which compensation was owed, or the reasonable hourly rate at which the insured’s attorney was to be compensated. Lara v. Fortune Ins. Co., 545 So. 2d 909, 1989 Fla. App. LEXIS 1953 (Fla. 2nd DCA 1989).

500. An award of attorney’s fees for a frivolous appeal, pursuant to Fla. Stat. § 57.105, at a higher rate than that actually charged by the attorney, was affirmed because the discounted rate was based on a continuing business relationship between the attorney and client. Hatcher v. Roberts, 538 So. 2d 1300, 1989 Fla. App. LEXIS 742 (Fla. 1st DCA 1989).

501. City officials who prevailed in a frivolous action were entitled to an award of attorney’s fees under Fla. Stat. § 57.105 although the officials had been provided counsel by the city and had thus not paid for their attorneys themselves, because an award of attorney’s fees is mandatory where the action is frivolous, and the award should be based on the reasonable value of the services, not on whether or how much the prevailing party is actually paid. Wright v. Acierno, 437 So. 2d 242, 1983 Fla. App. LEXIS 23519 (Fla. 5th DCA 1983).

502. A city was entitled under Fla. Stat. § 57.105 to reasonable attorney’s fees from a church and its educational institution following the disposition in favor of the city in the underlying action, such fees to be based on the value of the services rendered to it rather than on the hourly rate derived from the salary of house counsel representing the city; reliance on prevailing market rates for attorneys with comparable skill and experience discouraged baseless claims, avoided the need to investigate the ramifications of the city attorney’s overhead, and simplified the difficult task of awarding reasonable fees. Boca Raton v. Faith Baptist Church, 423 So. 2d 1021, 1982 Fla. App. LEXIS 22207 (Fla. 4th DCA 1982).

503. Award of attorney’s fees to appellees was reversed on appeal since the suit was not frivolous, because appellants demonstrated that the rezoning was inconsistent with appellees comprehensive land use plan where county planning testified that the rezoning was incompatible with surrounding uses and did not bear a substantial relationship to the health, safety and welfare of the community. Braden River Civic Ass'n v. Manatee County, 403 So. 2d 1007, 1981 Fla. App. LEXIS 20385 (Fla. 2nd DCA 1981).

504. The trial court could consider a contingency fee contract to set a “reasonable” attorney’s fee pursuant to Fla. Stat. § 57.105, but the trial court was in no way bound by said contract in setting such an award under the statute. Autorico, Inc. v. Government Employees Ins. Co., 398 So. 2d 485, 1981 Fla. App. LEXIS 19858 (Fla. 3rd DCA 1981).

Civil Procedure: Remedies: Costs & Attorney Fees: Attorney Expenses & Fees: Statutory Awards

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505. Condominium association was not entitled to attorney fees under this statute because the fact that the unit owners obtained the relief they sought, as acknowledged by the initially-presiding trial judge at the 2015 hearing before the entry of the final judgment, demonstrated that their action was not frivolous and the trial court did not make detailed, specific findings of bad faith. Gonzalez v. Int'l Park Condo. I Ass'n, 2017 Fla. App. LEXIS 5755 (Fla. 3rd DCA 2017).

506. Trial court erred in awarding appellee attorney's fees pursuant to this statute because appellant had successfully obtained a judgment below that appellant lacked standing to enforce the subject mortgage and note against appellee, and therefore, no contract existed between the appellant and appellee that would allow appellee to invoke the reciprocity provisions of this statute. Bank of N.Y. Mellon Trust Co., N.A. v. Fitzgerald, 2017 Fla. App. LEXIS 2757 (Fla. 3rd DCA 2017).

507. Trial court erred in awarding attorney's fees to homeowners under the Amended and Restated Declaration of Covenants and Restrictions (ARD) and this statute because the court had ruled that the homeowners were not parties to the ARD. Sand Lake Hills Homeowners Ass'n v. Busch, 210 So. 3d 706, 2017 Fla. App. LEXIS 568 (Fla. 5th DCA 2017).

508. Trial court abused its discretion by denying a homeowner attorney's fees and court costs because the association filed a multi-count complaint and sought an award of attorney's fees for counts one, two, and four pursuant to the restrictive covenants and Fla. Stat. § 720.305(1), but the homeowner prevailed on each of those three counts and was, therefore, the prevailing party entitled to an award of reasonable attorney's fees incurred regarding those counts. Olson v. Pickett Downs Unit IV Homeowner's Ass'n, 205 So. 3d 869, 2016 Fla. App. LEXIS 17883 (Fla. 5th DCA 2016).

509. When a plaintiff, in a multi-count complaint, asserts a claim to which is appurtenant a provision for attorney's fees to the prevailing party and asserts other theories of recovery which do not include provision for prevailing party attorney's fees, one party or the other is a prevailing party as to the cause of action involving those fees independent of which party wins or loses on the other theories of recovery asserted in the same cause. Olson v. Pickett Downs Unit IV Homeowner's Ass'n, 205 So. 3d 869, 2016 Fla. App. LEXIS 17883 (Fla. 5th DCA 2016).

510. Mortgage company that held second mortgage on Chapter 13 debtor's home failed to show that plan debtor proposed could not be confirmed because it was filed in bad faith, was not feasible, and proposed to pay first mortgage debtor owed outside court's MMM program, and debtor was allowed to treat mortgage company's claim as unsecured because she owed more on her first mortgage than her home was worth; however, mortgage company's motion to value debtor's home was not type of action which allowed debtor to recover attorney's fees under Fla. Stat. § 57.105. In re Olivares, 2016 Bankr. LEXIS 4003 (Bankr. S.D. Fla. Nov. 16, 2016).

511. Trial court erred in denying the employment firm's motions for attorney's fees and delay damages because the trial court analyzed and ruled on the motions based on the standard applicable to the pre-1999 version of the statute and not the present version. Infiniti Empl. Solutions, Inc, v. MS Liquidators of Ariz., LLC, 204 So. 3d 550, 2016 Fla. App. LEXIS 16565 (Fla. 5th DCA 2016).

512. Court does not construe Fla. Stat. § 57.105 to require the trial court to give a separate notice of its intent to entertain a § 57.105 motion on its own initiative, when a motion for such fees is filed by a party and notice of hearing on the party's motion is given. Such a construction would give the appearance of impropriety, suggesting in advance that the motion will be granted. Watson v. Stewart Tilghman Fox & Bianchi, P.A., 195 So. 3d 1163, 2016 Fla. App. LEXIS 9993 (Fla. 4th DCA 2016).

513. Focus when the trial court awards fees under Fla. Stat. § 57.105(1) after a defective motion is filed should be on whether the trial court is acting on its own initiative, or whether it is simply adopting the insufficient motion of a party. Watson v.

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Stewart Tilghman Fox & Bianchi, P.A., 195 So. 3d 1163, 2016 Fla. App. LEXIS 9993 (Fla. 4th DCA 2016).

514. Safe harbor notice provisions of Fla. Stat. § 57.105(4) do not apply to the award of fees on the court's own initiative. Such a construction would violate the trial court's neutral posture and effectively preclude the trial court from awarding fees as a sanction on its own initiative. Watson v. Stewart Tilghman Fox & Bianchi, P.A., 195 So. 3d 1163, 2016 Fla. App. LEXIS 9993 (Fla. 4th DCA 2016).

515. Trial court does not abuse its discretion in ordering a party to pay attorney's fees pursuant to Fla. Stat. § 57.105(1) on its own initiative, even if a motion is filed by a party and the moving party fails to comply with the safe harbor requirements of the rule, as long as it can be determined from the record that the trial court is not simply adopting the moving party's defective motion. Here, the trial court had not simply adopted appellees' defective motion, but clearly indicated that it had formed an impression regarding the frivolous nature of the pleading even prior to appellees' motion having been filed. Watson v. Stewart Tilghman Fox & Bianchi, P.A., 195 So. 3d 1163, 2016 Fla. App. LEXIS 9993 (Fla. 4th DCA 2016).

516. Trial court erred by granting the wife of the mortgagor’s request for attorney fees because her status as the lawsuit's prevailing party did not equate to her being a mortgagor under the mortgage so as to trigger the reciprocity provision. The wife never tried to meet her burden, much less that she did meet her burden and any attempt by her to meet her burden likely would have undermined her successful defense against the bank's case. Fla. Cmty. Bank, N.A. v. Red Rd. Residential, LLC, 197 So. 3d 1112, 2016 Fla. App. LEXIS 8780 (Fla. 3rd DCA 2016).

517. Trial court erred in awarding attorney's fees under Fla. Stat. § 57.105 against a wife who sought to establish her late husband's lost will, because the wife presented evidence in the form of the husband's attorney's affidavits and deposition testimony that the husband had signed a will drafted by the attorney, although the attorney's evidence was ultimately weighed and rejected by the trial court. Casey v. Jensen, 189 So. 3d 924, 2016 Fla. App. LEXIS 4445 (Fla. 2nd DCA 2016).

518. Trial court did not abuse its discretion by denying lessees' motions for attorney's fees because, while the lessees prevailed on their claim, the taxation matter at issue concerned a complicated area of the law. Grove Key Marina, LLC v. Casamayor, 166 So. 3d 879, 2015 Fla. App. LEXIS 7977 (Fla. 3rd DCA 2015).

519. District court did not abuse its discretion in denying attorney's fees to a pro se attorney where he failed to respond to the contention that he was ineligible for such fees under Fla. Stat. § 57.105 because he did not meet the safe harbor provisions and did not file his motion until after trial. Klayman v. Judicial Watch, Inc., 2015 U.S. App. LEXIS 23022 (11th Cir. Fla. Feb. 17, 2015).

520. Although a foreclosure action was voluntarily dismissed by the mortgage holder, the mortgagor was not the prevailing party because the action was dismissed after the parties negotiated a short sale of the subject property and the compromises made as part of the negotiated sale meant that neither party actually achieved their litigation objectives. Kelly v. BankUnited, FSB, 2015 Fla. App. LEXIS 3956 (Mar. 18, 2015).

521. Florida's reciprocal attorney's fee provision, in conjunction with a mortgage agreement, provided a sufficient basis for awarding fees to bankruptcy debtors who prevailed on a creditor's motion to dismiss the bankruptcy petition; although the creditor argued that the mortgage had merged into a judgment of foreclosure, the creditor opened the door to a fee award by requesting fees in connection with its motion to dismiss. Centennial Bank v. Nabavi (In re Nabavi), 514 B.R. 895, 2014 U.S. Dist. LEXIS 111217 (M.D. Fla. 2014).

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522. In a shopping plaza corporation’s action against a shareholder for maintenance assessments due, the trial court’s assessment of attorney’s fees against the shareholder pursuant to Fla. Stat. § 57.105(1) was not supported by a finding that the shareholder’s counterclaims were frivolous or so devoid of merit on the facts and law as to be completely untenable; in fact, the counterclaim for slander of title stated a claim for relief. Jenkins v. Plaza 3000, Inc., 134 So. 3d 1127, 2014 Fla. App. LEXIS 1838 (Fla. 4th DCA 2014).

523. Parties’ lease was ambiguous as to which party was entitled to retain the trade fixtures when the lease expired, so a tenant was entitled to retain the trade fixtures; because entitlement to the trade fixtures and the security deposit was the most significant issue in the case, the tenant prevailed and was entitled to attorneys fees and costs on the breach of contract claims under the lease, this section and Fla. Stat. § 57.041. H. Allen Holmes, Inc. v. Jim Molter, Inc., 127 So. 3d 695, 2013 Fla. App. LEXIS 18429 (Fla. 4th DCA 2013).

524. Trial court abused its discretion in awarding attorney fees because no record evidence established that the aircraft storage and repair company complied with the notice requirements. The record was clear that the company served the aircraft owner with its motion on August 12, and then filed the motion with the trial court four days later, on August 16, in contravention of the mandatory 21-day notice provision. Global Xtreme, Inc. v. Advanced Aircraft Ctr., Inc., 122 So. 3d 487, 2013 Fla. App. LEXIS 15205 (Fla. 3rd DCA 2013).

525. Council president was not required to pay attorney fees because a defamation claim was not so lacking in merit so as to merit the award; the fact that the president was unable to sustain his claims under the burden of proof required for a limited public figure did not mean that those claims were totally devoid of merit. There was no evidence that the president knew or should have known of his limited public figure status, and there was at least a colorable claim of malice. Wapnick v. Veterans Council of Indian River County, Inc., 123 So. 3d 622, 2013 Fla. App. LEXIS 13674 (Fla. 4th DCA 2013).

526. Trial court erred by denying the mother’s motion for attorney fees because the notice requirement in the self-insurance fund statute-that a party seeking attorney’s fees had to serve a copy of the pleading on the Florida Department of Financial Services (DFS)-did not apply to a motion for fees. The case was not a proceeding against the state but, rather, one brought by the state (the Florida Department of Children and Families) and, no “pleading” was filed by the mother seeking fees. N.S. v. Dep't of Children & Families, 119 So. 3d 558, 2013 Fla. App. LEXIS 13931 (Fla. 5th DCA 2013).

527. Neither the mortgagor nor its counsel was entitled to attorney’s fees under this section after the mortgagees voluntarily dismissed the foreclosure actions since the claims had been mooted by a senior creditor’s foreclosure of its lien on the property, neither party prevailed on the foreclosure claims, and the dismissed claims were only part of the complex litigation pending among the mortgagee, the mortgagor and other parties. Tubbs v. Mechanik Nuccio Hearne & Wester, P.A., 125 So. 3d 1034, 2013 Fla. App. LEXIS 11736 (Fla. 2nd DCA 2013).

528. Debtor was entitled to fees and costs because he was the prevailing party in a creditor’s suit to declare a commercial loan deficiency non-dischargeable under the Bankruptcy Code, and the loan agreement provided for fees and costs to the prevailing party in a suit under the loan. Wells Fargo Bank, N.A. v. Kendrick (In re Kendrick), 2013 Bankr. LEXIS 2635 (Bankr. M.D. Fla. June 28, 2013), vacated, 2014 U.S. Dist. LEXIS 15047 (M.D. Fla. Feb. 3, 2014).

529. In plaintiff’s action against defendant for breach of an oral contract to store and secure a boat, the trial court erred in finding that the oral contract violated the statute of frauds; because the contract could be performed within a year and was in fact fully performed, it was an exception to the statute of frauds. Because the court of appeal reversed the trial court’s order granting defendant’s motion to dismiss, the order awarding defendant attorney’s fees pursuant to Fla. Stat. § 57.105(1) was also reversed. Terzis v. Pompano Paint & Body Repair, Inc., 127 So. 3d 592, 2012 Fla. App. LEXIS 21770 (Fla. 4th DCA

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2012).

530. Court’s prior denial of appellate fees under Fla. Stat. § 57.105 was not the law of the case as to trial-level fees Shuck v. Smalls, 101 So. 3d 924, 2012 Fla. App. LEXIS 20886 (Fla. 4th DCA 2012).

531. Fees awarded under Fla. Stat. § 57.105 presumptively should have been awarded against both appellants and their counsel. Furthermore, because appellants’ claims were time-barred, this precluded appellants’ attorneys, as a matter of law, from asserting any good faith reliance upon the representations of their clients. Shuck v. Smalls, 101 So. 3d 924, 2012 Fla. App. LEXIS 20886 (Fla. 4th DCA 2012).

532. Although the law did not require that the case be frivolous from its inception for appellees to be entitled to attorney’s fees under Fla. Stat. § 57.105, because appellants’ petition was untimely, appellants’ claims were frivolous from their inception. Thus, appellees were entitled to fees from the inception of the case in 2006, not just from 2007 forward. Shuck v. Smalls, 101 So. 3d 924, 2012 Fla. App. LEXIS 20886 (Fla. 4th DCA 2012).

533. Trial court properly awarded attorney’s fees to a father against the Department of Revenue (DOR) under Fla. Stat. § 57.105(1), based on its findings that DOR had reason to know that the Tax Refund Intercept Act did not apply, that DOR admitted that the father was entitled to the return of his refund without the necessity of a hearing, and that this was the father’s second trip to court on the same issue. Dep't of Revenue v. Cessford, 100 So. 3d 1199, 2012 Fla. App. LEXIS 19541 (Fla. 2nd DCA 2012).

534. Title IV-D cases anticipate the award of attorney’s fees against the Department of Revenue in actions to determine paternity and support pursuant to Fla. Stat. § 57.105. Therefore, a trial court is authorized to enter an award of attorney’s fees against the Department if the facts support such an award. Dep't of Revenue v. Cessford, 100 So. 3d 1199, 2012 Fla. App. LEXIS 19541 (Fla. 2nd DCA 2012).

535. Award of attorney’s fees to owner under Fla. Stat. § 57.105(7) was proper in a foreclosure case because, inter alia, the prevailing party obligation in the contract was read to be reciprocal and the refiling of the same suit after a voluntary dismissal did not alter the owner’s right to recover prevailing party attorney’s fees incurred in defense of first suit; the trial court’s use of a 2.5 multiplier was proper. The owner had no ability to pay his attorney, who took the case on a contingency fee basis, and it seemed initially unlikely that the attorney would have had any way to succeed in defending the owner’s ownership rights. J.P. Morgan Mortg. Acquisition Corp. v. Golden, 98 So. 3d 220, 2012 Fla. App. LEXIS 16466 (Fla. 2nd DCA 2012).

536. Trial court abused its discretion in taxing attorney fees solely against the employer in a wage and independent contractor claim because the doctors’ motion for fees under Fla. Stat. § 57.105 was clearly addressed toward the conduct of the employer’s attorney, and the appellate court declined to infer that the trial court intended to find that the attorney acted in good faith so as to be exempt from fees under § 57.105(3). Hall v. White, 97 So. 3d 907, 2012 Fla. App. LEXIS 14328 (Fla. 1st DCA 2012).

537. Buyers were not entitled to attorney’s fees on their counterclaim against seller because, while the parties’ sale contract contained an attorney’s fee provision, the seller sued only for breach of the order contract, and that document contained no attorney’s fees provision; the buyers pled no statutory basis for recovering attorney’s fees other than Fla. Stat. § 57.105(7). Tylinski v. Klein Auto., Inc., 90 So. 3d 870, 2012 Fla. App. LEXIS 8879 (Fla. 3rd DCA 2012).

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538. Where there is a contractual basis for an award of legal fees, such fees may be awarded even if the only matter presented in the U.S. Bankruptcy Court for the Southern district of Florida is whether a previously liquidated debt should be excepted from discharge. Allen v. Entrust Admin. Servs. (In re Allen), 2012 Bankr. LEXIS 2444 (Bankr. S.D. Fla. May 30, 2012).

539. Dischargeability determination cause of action could not possibly have been included in the state court action as debtor’s bankruptcy case had yet to be filed. Additionally (i) the Complaint included a broad request for damages that would encompass additional legal fees, (ii) it was, in part, an attempt to liquidate an additional debt under the promissory notes, (iii) because such cause of action was not and could not have been included in the state court action, it was not precluded under the doctrine of merger, and (iv) at the time the Complaint was filed in the bankruptcy court, the creditors had a continuing ability to pursue such additional damages under the promissory notes. This was sufficient to support debtor’s reciprocal right under Fla. Stat. § 57.105(7). Allen v. Entrust Admin. Servs. (In re Allen), 2012 Bankr. LEXIS 2444 (Bankr. S.D. Fla. May 30, 2012).

540. Fla. Stat. § 57.105 could not serve as a basis for an award of attorney’s fees to a bank in a foreclosure action because the trial court did not find that the debtors’ claims were frivolous and did not conclude that a form affidavit from an expert witness, which was filed by the debtors’ attorney in a number of cases where the expert did not review the debtors’ records in the cases, was filed to cause unreasonable delay. Glarum v. LaSalle Bank N.A., 83 So. 3d 780, 2011 Fla. App. LEXIS 18175 (Fla. 4th DCA 2011).

541. Denial of a ranch’s Fla. Stat. § 57.105(1) motion for attorney’s fees against a lawyer for neighbors was proper because § 57.105(1) did not support an attorney’s fee award solely against a party’s attorney where, as here, the case against the attorney’s client was dismissed and the claim for attorney’s fees against the client was waived; the lawyer did not move for attorney’s fees against the ranch in order to seek or defend his own personal interests in the pending litigation between the ranch and the neighbors or to gain something independent of the neighbors and without the neighbors’ consent. Moreover, there was no allegation in the ranch’s motion that the lawyer had made himself a party in this proceeding or acted in a manner that would have raised his status to a “party.” Sexton v. Ferguson, 79 So. 3d 51, 2011 Fla. App. LEXIS 18098 (Fla. 4th DCA 2011).

542. Awards of attorney fees made against the client and attorney under Fla. Stat. § 57.105(1) were inappropriate because the client presented evidence at the final hearing that tended to prove the material facts necessary to establish her claims. Siegel v. Rowe, 71 So. 3d 205, 2011 Fla. App. LEXIS 15722 (Fla. 2nd DCA 2011).

543. Order granting attorney’s fees and costs pursuant to Fla. Stat. § 57.105(1) in a medical malpractice suit was improper because, given that the conduct of the patient’s counsel at issue came during jury selection, there was no way for counsel to “withdraw or appropriately correct” that allegation within 21 days after service of the doctors’ post-mistrial motion as provided for by § 57.105(4); further, an award of costs was not allowed under § 57.105. Ferere v. Shure, 65 So. 3d 1141, 2011 Fla. App. LEXIS 11351 (Fla. 4th DCA 2011).

544. Trial court abused its discretion in sanctioning an attorney because the attorney had a good faith factual and legal basis for making an argument. Santini v. Cleveland Clinic, 65 So. 3d 22, 2011 Fla. App. LEXIS 6663 (Fla. 4th DCA 2011).

545. Trial court made several due process errors with regard to sanctioning an attorney based on Fla. Stat. § 57.105. The most critical errors were not making express findings of bad faith and never holding a full evidentiary hearing regarding the paramount issue of good faith. Santini v. Cleveland Clinic, 65 So. 3d 22, 2011 Fla. App. LEXIS 6663 (Fla. 4th DCA 2011).

546. Homeowners association was entitled to attorney fees under Fla. Stat. § 57.105 against a bank because, while the bank initially claimed that it was entitled to bring a foreclosure action by virtue of an assignment, it was undisputed that the bank

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filed the suit without the assignment or other legal basis to file, and there was no reason to believe that the bank had standing; nothing suggested that the bank or its attorneys took any steps to confirm that the bank had the right to file suit, and the bank failed to respond to requests for admission filed by the homeowners association and never attempted to explain why it admitted that it lacked standing. The volume of foreclosure cases in the judicial system was not a matter that relieved the bank and its attorneys of their obligation to file pleadings that were adequately supported by a reasonable investigation before suit. S. Bay Lakes Homeowners Ass'n v. Wells Fargo Bank, N.A., 53 So. 3d 1239, 2011 Fla. App. LEXIS 1982 (Fla. 2nd DCA 2011).

547. Seller was entitled to recover its attorney’s fees against the first broker pursuant to Fla. Stat. § 57.105(7). Because the first broker acknowledged that the statute allowed the seller to recover its attorney’s fees pursuant to the prevailing party provision in the brokerage commission contract, the circuit court should have awarded those fees in the judgment. Land & Sea Petroleum, Inc. v. Business Specialists, Inc., 53 So. 3d 348, 2011 Fla. App. LEXIS 216 (Fla. 4th DCA 2011).

548. This adversary proceeding was, in part, an action to enforce the terms of the Shareholders’ Agreement; Sentence One of Article XIII, Paragraph H of the Shareholders’ Agreement was a valid, binding contractual provision between debtor and the creditor. Fla. Stat. § 57.105(7) was applicable to this proceeding, and debtor was entitled to an award of reasonable attorney’s fees and costs pursuant to Article XIII, Paragraph H and Fla. Stat. § 57.105(7). Mojica v. Moth (In re Moth), 2011 Bankr. LEXIS 97 (Bankr. M.D. Fla. Jan. 13, 2011).

549. Lienholder was entitled to attorney’s fees under Fla. Stat. § 57.105(1) because the purported assignee’s foreclosure action was unsupported by necessary facts, and for purposes of § 57.105(1), it did not matter that the purported assignee may have been able to prevail in a new foreclose action; because the purported assignee did not own or possess the note and mortgage when it filed its suit, it lacked standing to maintain the foreclosure. Country Place Cmty. Ass'n v. J.P. Morgan Mortg. Acquisition Corp., 51 So. 3d 1176, 2010 Fla. App. LEXIS 19829 (Fla. 2nd DCA 2010).

550. Dismissal of action for lack of personal jurisdiction was affirmed because the motion for fees was defensive and did not seek affirmative relief, the defense of lack of personal jurisdiction was not waived. Two Worlds United v. Zylstra, 46 So. 3d 1175, 2010 Fla. App. LEXIS 16738 (Fla. 2nd DCA 2010).

551. Trial court did not abuse its discretion in disallowing a former officer’s claim for an award of Fla. Stat. § 57.105 attorney’s fees. Sharaby v. KLV Gems Co., 45 So. 3d 560, 2010 Fla. App. LEXIS 15809 (Fla. 4th DCA 2010).

552. Trial court abused its discretion in awarding attorney’s fees to the owner of a diamond ring In a jeweler’s defamation action; the express malice needed to overcome the owner’s qualified privilege to make a police report accusing the jeweler of theft could be inferred from the unreasonableness of making the report when the owner was aware that she did not know if her accusation that the jeweler had replaced diamonds in the ring with artificial stones was true and the further inference that the owner wanted to harm the jeweler by getting the police involved. Asinmaz v. Semrau, 42 So. 3d 955, 2010 Fla. App. LEXIS 12725 (Fla. 4th DCA 2010).

553. Attorney’s fees were not appropriate to the prevailing party in a motion to enforce the terms of a settlement because the prevailing party did not serve notice on the opponent 21 days before seeking fees, as required by Fla. Stat. § 57.105(4) (2007). Nedd v. Gary, 35 So. 3d 1028, 2010 Fla. App. LEXIS 7660 (Fla. 4th DCA 2010).

554. The failure to serve the writs of garnishment and related documents as required by Fla. Stat. § 77.041(2), on a judgment debtor did nothing to undermine the factual or legal basis on which such writs rested and thus, sanctions of fees and costs imposed upon an attorney and a judgment creditor under Fla. Stat. § 57.105, were inappropriate. Cullen v. Marsh, 34 So. 3d

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235, 2010 Fla. App. LEXIS 6548 (Fla. 3rd DCA 2010).

555. An award of appellate attorney’s fees with respect to appellant’s motion for rehearing or clarification and rehearing en banc was appropriate under Fla. Stat. § 57.105, because appellant or appellant’s attorney knew or should have known that the motion lacked legal merit and violated the legal principles and rules of appellate procedure. UniFirst Corp. v. City of Jacksonville, 42 So. 3d 247, 2010 Fla. App. LEXIS 3865 (Fla. 1st DCA 2010).

556. Because the homeowner prevailed on the significant issue litigated in the trial court (the breach of contract claim) and defeated all the claims brought by the construction company, he was entitled to the award of attorney’s fees under the parties’ contract and § 57.105, Fla. Stat. Furthermore, because the homeowner prevailed against the company in its attempt to enforce a mechanic’s lien, the homeowner was entitled to attorney’s fees under § 713.29, Fla. Stat. Kelsey v. Metro Constr., 31 So. 3d 252, 2010 Fla. App. LEXIS 3805 (Fla. 3rd DCA 2010).

557. Bankruptcy court denied motions to reconsider its judgment awarding a corporation that declared Chapter 11 bankruptcy attorney’s fees under Fla. Stat. § 57.105(7) in an adversary proceeding the corporation filed against a bank. There was no merit to the corporation’s claim that the court reduced the hourly rate its attorneys charged as a sanction for the attorneys’ behavior in court, and the court’s award was proper under Florida law because the bank had knowledge that the corporation was going to ask for attorney’s fees; the bank drafted a contract that was in dispute, and the contract entitled the prevailing party to recover its attorney’s fees. Jerk Mach., Inc. v. Bank of Am., N.A. (In re Jerk Mach., Inc.), 425 B.R. 880, 2010 Bankr. LEXIS 654 (Bankr. S.D. Fla. 2010).

558. Award of Fla. Stat. § 57.105 fees to a mother following the dismissal of a department’s dependency petition was error because, pursuant to Fla. Stat. § 39.01(14)(f), a child could have been found dependent if he or she was at substantial risk of imminent abuse, abandonment, or neglect and, in its initial and amended petitions for dependency, the department relied on the opinions of medical professionals with the Child Protection Team (CPT); because the CPT doctors remained convinced throughout the pendency of the litigation that a risk of imminent abuse, abandonment, or neglect existed, despite the withdrawal of Munchausen Syndrome by Proxy allegations, the department’s petition for dependency was always supported by the necessary material facts to overcome an award of § 57.105 fees. Dep't of Children & Families v. S.E., 12 So. 3d 902, 2009 Fla. App. LEXIS 8737 (Fla. 4th DCA 2009).

559. Orders requiring a client and a law firm to each pay 50 percent of the attorneys’ fees for the opposing party, following an entry of final summary judgment for the opposing party, were reversed and remanded as to the law firm because the trial court did not conduct an evidentiary hearing or otherwise make an express finding that the law firm was not acting in good faith when it brought an action on behalf of the client. Ferdie v. Isaacson, 8 So. 3d 1246, 2009 Fla. App. LEXIS 4213 (Fla. 4th DCA 2009).

560. Trial court was without authority to assess costs against a law firm because Fla. Stat. § 57.105 permitted the assessment of attorneys’ fees, but did not permit the assessment of costs. Ferdie v. Isaacson, 8 So. 3d 1246, 2009 Fla. App. LEXIS 4213 (Fla. 4th DCA 2009).

561. In a case in which a property developer moved for attorney’s fees pursuant to Fla. Stat. § 57.105, but the contractor had not pled a defense, the motion for attorney’s fees was premature. Attorney’s fees under § 57.105 were a sanction for an unsupported claim or defense. Palm Devs., Inc. v. Ridgdill & Sons, Inc., 2009 U.S. Dist. LEXIS 19862 (M.D. Fla. Feb. 27, 2009).

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562. Trial court erred in awarding attorney’s fees to a corporation under Fla. § 57.105; while a corporation complied with the safe harbor notice requirements of § 57.105(4), a review of the allegations in the tortious interference with business relations claim filed against the corporation by the owners of a company stated a claim and were not frivolous. Kenniasty v. Bionetics Corp., 2009 Fla. App. LEXIS 1921 (Fla. 5th DCA 2009), sub. op., 10 So. 3d 1183, 2009 Fla. App. LEXIS 7463 (Fla. 5th DCA 2009).

563. Trial court erred in awarding attorney’s fees to a corporation under Fla. § 57.105 because, while suit was filed against the corporation prior to the amendment of the statute to include the safe harbor provision in § 57.105(4), as the motion for fees was filed after the amendment took effect, the safe harbor provision applied, and the corporation failed to provide the required notice of its intent to seek attorney’s fees related to claims of invasion of privacy and violation of the Procurement Integrity Act, 41 U.S.C.S. § 423. Kenniasty v. Bionetics Corp., 2009 Fla. App. LEXIS 1921 (Fla. 5th DCA 2009), sub. op., 10 So. 3d 1183, 2009 Fla. App. LEXIS 7463 (Fla. 5th DCA 2009).

564. Safe harbor provision in Fla. Stat. § 57.105 applies where a lawsuit is filed before July 1, 2002, but the motion for attorney’s fees is not filed until after this date. Kenniasty v. Bionetics Corp., 2009 Fla. App. LEXIS 1921 (Fla. 5th DCA 2009), sub. op., 10 So. 3d 1183, 2009 Fla. App. LEXIS 7463 (Fla. 5th DCA 2009).

565. Bankruptcy court found that it was not allowed to award attorney fees under Fla. Stat. § 57.105 to a Committee of Unsecured Creditors that prevailed on its claims that liens a Chapter 11 debtor’s subsidiaries gave to a bank to secure a loan were avoidable under 11 U.S.C.S. §§ 544(b) and 548 and comparable state law provisions, because the Florida Supreme Court had ruled that the right to recover attorney fees under § 57.105 was a substantive right. However, the court had the power under the Bankruptcy Code to award attorney fees and costs to the committee. Official Comm. of Unsecured Creditors of Tousa, Inc. v. Citicorp N. Am., Inc., 422 B.R. 783, 2009 Bankr. LEXIS 3311 (Bankr. S.D. Fla. 2009).

566. Tenant’s award of fees under Fla. Stat. § 57.105(7) was error. The plain language of the lease did not provide for an award of fees to the tenant and there was no evidence indicating that the landlord waived the right to contest the tenant’s request for fees or was equitably estopped from doing so. WSG W. Palm Beach Dev., LLC v. Blank, 990 So. 2d 708, 2008 Fla. App. LEXIS 15104 (Fla. 4th DCA 2008).

567. Chapter 7 debtor was entitled under Fla. Stat. § 57.105(1) and 11 U.S.C.S. § 105(a) to recover attorneys’ fees he incurred to defend an adversary proceeding which a creditor filed against him, seeking a judgment denying his discharge under 11 U.S.C.S. § 727(a)(5). The creditor’s complaint lacked factual and legal merit and was filed to harass the debtor because he had not paid a judgment the creditor obtained 23 years before the debtor declared bankruptcy. DeLauro v. Porto (In re Porto), 2008 Bankr. LEXIS 3858 (Bankr. M.D. Fla. Sept. 23, 2008).

568. Sailboat owner sued a property owner under Fla. Stat. § 812.014(1) for the civil theft of his badly damaged boat, which was worth only $500, after demanding the boat’s return or $24,000; the property owner had already paid him restitution of $5,000 in a criminal theft case. An arbitrator’s written decision was not final as she failed to consider, as ordered by the referring trial court, the property owner’s claim for counsel fees under Fla. Stat. § 57.105(1)(b), 772.11, and for an offset of the restitution payment under Fla. Stat. § 775.089(8). Diaz v. Andy, 987 So. 2d 698, 2008 Fla. App. LEXIS 8444 (Fla. 3rd DCA 2008).

569. When an insured sued an insurer for breach of contract and then appealed a summary judgment granted in favor of the insurer, the insured was entitled to an award of attorney’s fees because, after the insurer admitted the insurer did not prove that the insurer had mailed a notice of cancellation to the insured, required by Fla. Stat. § 627.7281, the insurer sought affirmance, although the insurer knew or should have known that the necessary material facts did not support the insurer’s defense of the

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trial court’s order, pursuant to Fla. Stat. § 57.105(1)(a). Magee v. Am. Southern Home Ins. Co., 982 So. 2d 1255, 2008 Fla. App. LEXIS 8144 (Fla. 1st DCA 2008).

570. As both a buyer and her attorney knew or should have known that their claims against a seller based on an alleged breach of an oral contract to sell land were not supported by material facts, and there was no good faith attempt by the buyer to create new law, the trial court erred in not requiring the buyer and her attorney to pay equal shares of the seller’s attorney’s fees under Fla. Stat. § 57.105(1). Danziger v. Alternative Legal, Inc., 987 So. 2d 694, 2008 Fla. App. LEXIS 7197 (Fla. 4th DCA 2008).

571. Trial court did not err in awarding appellee attorney’s fees and costs following the dismissal with prejudice of the bank’s residential mortgage foreclosure complaint against appellee and others because appellee was the prevailing party under Fla. Stat. § 57.105(7) where a dismissal pursuant to Fla. R. Civ. P. 1.420(b) operated as an adjudication on the merits. Bank of N.Y. v. Williams, 979 So. 2d 347, 2008 Fla. App. LEXIS 5415 (Fla. 1st DCA 2008).

572. Because an appellee had a right to investigate issues regarding a decedent’s testamentary capacity, and because a personal representative (PR) failed to show that the requested deposition costs were reasonably necessary, the court properly denied the PR’s motion for the fees under Fla. Stat. § 57.105 and costs. Nasser v. Nasser, 975 So. 2d 531, 2008 Fla. App. LEXIS 939 (Fla. 4th DCA 2008).

573. Where an attorney alleged that a newspaper published defamatory statements in articles relating to the attorney’s arrest and prosecution and the newspaper was entitled to a qualified privilege, the newspaper was not entitled to attorney fees, because the attorney’s complaint and appeal were not completely frivolous. Alan v. Palm Beach Newspapers, Inc., 973 So. 2d 1177, 2008 Fla. App. LEXIS 13 (Fla. 4th DCA 2008).

574. Appellant was not entitled to attorney’s fees where appellee had brought a proceeding for an injunction against repeat violence under Fla. Stat. § 741.30, and attorney’s fees could not be awarded in domestic violence injunction cases. Dudley v. Schmidt, 963 So. 2d 297, 2007 Fla. App. LEXIS 12374 (Fla. 5th DCA 2007).

575. In a bankruptcy proceeding where the debtor had challenged successfully the creditor’s claim to recover under a mortgage, the debtor could not recover attorneys’ fees and costs when the debtor did not give prior notice to the creditor of its intent to seek recovery of fees and costs. In re Full Gospel Assembly of Delray Beach, 2007 Bankr. LEXIS 2476 (Bankr. S.D. Fla. July 18, 2007).

576. In a case alleging common law defamation and violations of the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201 et seq., in which a museum obtained summary judgment against an air show company and others, its motion for attorney’s fees an nontaxable costs pursuant to Fla. Stat. § 57.105 was denied. The contentions of the air show company and others were not so baseless, frivolous, or unsupported by material facts as to justify such an award; additionally a justiciable issue existed concerning the central issue in the case — whether the communications by the air show company and others to the Federal Aviation Administration (FAA) were privileged or entitled to qualified immunity inasmuch as such communications were arguably part of FAA administrative proceedings. Army Aviation Heritage Found. & Museum, Inc. v. Buis, 504 F. Supp. 2d 1254, 2007 U.S. Dist. LEXIS 22260 (N.D. Fla. 2007).

577. Because a trial court’s award of attorney’s fees failed to include the findings required by Fla. Stat. § 57.105(1)(a) and (b), said order was reversed. Tunnage v. Green, 947 So. 2d 686, 2007 Fla. App. LEXIS 1412 (Fla. 4th DCA 2007).

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578. Attorney’s fees were properly awarded to a general contractor in a pedestrian’s negligence action under Fla. Stat. § 57.105 from the beginning of the contractor’s involvement in the action because the pedestrian’s claim was baseless, but fees should not have been awarded after the date on which it was determined that the contractor was entitled to an award; attorney’s fees are only available for time spent litigating the issue of entitlement, not for the time spent litigating the amount of fees to be awarded. Yakavonis v. Dolphin Petroleum, Inc., 934 So. 2d 615, 2006 Fla. App. LEXIS 12394 (Fla. 4th DCA 2006).

579. Pedestrian’s liability to a general contractor for attorney’s fees for naming the contractor as a defendant in her negligence action without a factual basis for the claim was not limited to fees incurred after the expiration of the 21-day notice period given by the contractor pursuant to Fla. Stat. § 57.105(4); nothing required the trial court to begin the time for computing attorney’s fees upon the expiration of that time period, and it was free to measure attorney’s fees from the time when it was known or should have been known that the pedestrian’s claim had no basis in fact or law. Yakavonis v. Dolphin Petroleum, Inc., 934 So. 2d 615, 2006 Fla. App. LEXIS 12394 (Fla. 4th DCA 2006).

580. In a lawsuit alleging claims of fraudulent conveyance, piercing the corporate veil, and continuation of business/alter ego against the sole shareholder of a corporation that employed both plaintiff employees, the employees’ motion for attorney’s fees was denied, as their request was based on the premise that the shareholder inappropriately requested fees because the settlement offers were invalid, and a party could not receive fees for the time spent litigating fees. Carnes v. Fender, 936 So. 2d 11, 2006 Fla. App. LEXIS 7717 (Fla. 4th DCA 2006).

Civil Procedure: Remedies: Costs & Attorney Fees: Costs

581. Where appellant asserted a counterclaim that could not satisfy the statute of frauds, the court erred in awarding appellee costs under this section, as it does not provide for an award of costs. Heldt-Pope v. Thibault, 198 So. 3d 650, 2015 Fla. App. LEXIS 17048 (Fla. 2nd DCA 2015).

582. Award of attorney’s fees and costs in favor of plaintiff-landowner in his breach of fiduciary duty action against his fiduciary was error where 1) the trial court’s award was based on the late distribution of land-sale proceeds — which was not the subject of either a claim or a defense in the action; 2) the fiduciary actually maximized the plaintiff-landowner’s proceeds; 3) there was no evidence that the fiduciary undertook any action for the purpose of unreasonable delay within the meaning of Fla. Stat. § 57.105(3); and 4) the plaintiff was not the prevailing party. Cheetham v. Brickman, 861 So. 2d 82, 2003 Fla. App. LEXIS 17083 (Fla. 3rd DCA 2003).

583. In connection with a dismissed action brought by a beneficiary under a will against the administratrix, an order assessing fees against the beneficiary personally pursuant to Fla. Stat. § 57.105 was quashed on the basis that the actions of the beneficiary were not so bereft of basis in law or fact as to warrant fees against her personally; an order awarding fees from the beneficiary’s portion of the estate pursuant to Fla. Stat. § 733.106 was affirmed. Williams v. King, 711 So. 2d 1285, 1998 Fla. App. LEXIS 5712 (Fla. 5th DCA 1998).

584. Defendant was not entitled to costs and attorney’s fees pursuant to Fla. Stat. § 57.105, because the trial court erred in dismissing plaintiff’s complaint as a sham where plaintiff presented evidence supporting its allegations in the complaint and contradicting defendant’s position in its motion to strike the complaint. Sargent, Repka, Covert, Steen & Zimmet, P.A. v. HAMC Industries, Inc., 597 So. 2d 427, 1992 Fla. App. LEXIS 4626 (Fla. 2nd DCA 1992).

585. A suit brought against a car manufacturer alleging breach of implied warranty, negligence and strict liability was not frivolous within the contemplation of Fla. Stat. § 57.105; therefore it was error to assess attorney fees, and it was also error to hold plaintiff liable for the cost incurred by the manufacturer in providing expert testimony on reasonable attorney fees. Cohen

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v. General Motors Corp., Cadillac Div., 444 So. 2d 1170, 1984 Fla. App. LEXIS 11785 (Fla. 4th DCA 1984).

586. Defendant in a criminal case was not entitled to attorney’s fee under Fla. Stat. § 57.105 as a sanction for the state wrongfully interfering with the taking of a witness’s deposition because the statute applies only to appellate proceedings in civil cases and does not authorize assessment for attorney’s fees against the state for appellate proceedings in a criminal case. State v. LoChiatto, 381 So. 2d 245, 1979 Fla. App. LEXIS 6978 (Fla. 4th DCA 1979).

Civil Procedure: Remedies: Costs & Attorney Fees: Costs: General Overview

587. Trial court abused its discretion by awarding plaintiffs costs under Fla. Stat. § 57.105, because the statute did not provide a mechanism for recovering costs. Pronman v. Styles, 2015 Fla. App. LEXIS 3037 (Mar. 4, 2015).

588. Trial court erred in awarding a corporation $ 2,087 in costs allegedly incurred in defending a frivolous lawsuit was error because Fla. App. § 57.105 made no mention of costs. Ferdie v. Isaacson, 2009 Fla. App. LEXIS 7754 (Fla. 4th DCA 2009).

589. Trial court was without authority to assess costs against a law firm because Fla. Stat. § 57.105 permitted the assessment of attorneys’ fees, but did not permit the assessment of costs. Ferdie v. Isaacson, 8 So. 3d 1246, 2009 Fla. App. LEXIS 4213 (Fla. 4th DCA 2009).

590. Award of attorney’s fees and costs as sanctions against patient, pursuant to Fla. Stat. § 57.105 and Fla. Stat. § 768.79, was upheld because the trial court properly entered judgment against the patient in her medical malpractice action, given that: (1) testimony from an independent medical examiner was not a surprise which prejudiced her; (2) photographs depicting what self-infliction looked like were properly admitted; and (3) the testimony of the patient’s expert was not improperly limited. Scarlett v. Ouellette, 948 So. 2d 859, 2007 Fla. App. LEXIS 1084 (Fla. 3rd DCA 2007).

591. Trial court properly denied a motion by a state insurance fund and a state official for attorney’s fees pursuant to Fla. Stat. § 57.105, as the contractor had the right to choose his remedy in his action seeking to enforce a settlement against the estate of a former state worker. Gallagher v. Dupont, 918 So. 2d 342, 2005 Fla. App. LEXIS 19289 (Fla. 5th DCA 2005).

592. Because neighbors prevailed on every count of their complaint to protect their property interest in the burdened land that they owned, they, and not the party they sued, were entitled to an award of costs in defending their property rights, pursuant to Fla. Stat. § 57.041. Granoff v. Seidle, 915 So. 2d 674, 2005 Fla. App. LEXIS 16669 (Fla. 5th DCA 2005).

593. Trial court abused its discretion in awarding attorney’s fees and costs to a party under Fla. Stat. § 57.105 after it was learned that said party could not be held responsible for an injured contractor’s injuries, and no evidence was presented that the lawsuit was filed against her knowing that the claim was not supported by the material facts necessary to establish the claim, or not supported by the application of the law to those facts. Nesci v. Duffau, 913 So. 2d 659, 2005 Fla. App. LEXIS 14054 (Fla. 3rd DCA 2005).

594. Costs award, made sua sponte after the State’s combined Fla. R. Civ. P. 1.442 and Fla. Stat. § 57.105 motion was denied, was reversed as there was no basis for further expenditure of judicial effort on those matters. Roco Tobacco (USA), Inc. v. Fla. Div. of Alcoholic Bevs., 934 So. 2d 479, 2004 Fla. App. LEXIS 11756 (Fla. 3rd DCA 2004).

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595. While Fla. Stat. § 57.105(5) creates mutuality of the attorney fee remedy in contract cases, that mutuality does not apply to costs. ADF Intl, Inc. v. Baker Mellon Stuart Constr., Inc., 2001 U.S. Dist. LEXIS 25720 (M.D. Fla. Apr. 6, 2001).

596. Despite a retainer agreement signed by attorney and client, which allowed attorney to recover her reasonable attorney’s fees and costs in enforcing a claim for attorney’s fees under the contract, the trial court acted within its discretion pursuant to Fla. Stat. § 57.105(2) in awarding attorney’s fees and costs to client. Rochlin v. Cunningham, 739 So. 2d 1215, 1999 Fla. App. LEXIS 10460 (Fla. 4th DCA 1999).

597. Where a trial court denied appellants’ Fla. Stat. § 57.105(2) motion for attorney fees, appellees were determined to be the “prevailing party” and appellants were not entitled to costs under Fla. Stat. § 57.041. Hall v. Humana Hosp. Daytona Beach, 733 So. 2d 596, 1999 Fla. App. LEXIS 7836 (Fla. 5th DCA 1999).

598. Litigant’s motion for costs as the prevailing party, pursuant to Fla. Stat. § 57.041, in a lawsuit completed in the trial court, was properly denied where the opposing party was determined to be the prevailing party when the trial court denied litigant’s motion pursuant to Fla. Stat. § 57.105(2); that identification became fixed, final and binding on the litigants, and all were bound by that prior ruling. Hall v. Humana Hosp. Daytona Beach, 733 So. 2d 596, 1999 Fla. App. LEXIS 7836 (Fla. 5th DCA 1999).

599. Defendant town’s motion for attorney fees made based on an earlier version of Fla. Stat. § 57.105 was denied properly because plaintiff employee’s complaint raised a justiciable issue of defamation given that at the time of filing it was unknown whether or not the town would take issue with the employee’s failure to comply with the pre-suit notice requirement and whether or not the town would assert the affirmative defense of sovereign-immunity. Stewart v. Town of Zolfo Springs, 1998 U.S. Dist. LEXIS 20914 (M.D. Fla. 1998).

600. Pursuant to an earlier version of Fla. Stat. § 57.105, the court must award attorney fees and costs to the prevailing party where it finds that there was a complete absence of a justiciable issue of either law or fact raised by the complaint or defense of the losing party. Stewart v. Town of Zolfo Springs, 1998 U.S. Dist. LEXIS 20914 (M.D. Fla. 1998).

601. Defendant town’s motion for attorney fees made based on Fla. Stat. § 57.105 was denied properly because plaintiff employee’s complaint raised a justiciable issue of defamation given that at the time of filing it was unknown whether or not the town would take issue with the employee’s failure to comply with the pre-suit notice requirement and whether or not the town would assert the affirmative defense of sovereign-immunity. Stewart v. Town of Zolfo Springs, 1998 U.S. Dist. LEXIS 20914 (M.D. Fla. 1998).

602. In determining whether or not claims are justiciable under Fla. Stat. § 57.105, the courts should evaluate the claims as they respectively existed at the time of filing. Stewart v. Town of Zolfo Springs, 1998 U.S. Dist. LEXIS 20914 (M.D. Fla. 1998).

603. Pursuant to Fla. Stat. § 57.105, the court must award attorney fees and costs to the prevailing party where it finds that there was a complete absence of a justiciable issue of either law or fact raised by the complaint or defense of the losing party. Stewart v. Town of Zolfo Springs, 1998 U.S. Dist. LEXIS 20914 (M.D. Fla. 1998).

604. Where mortgage and note made no provision for attorney’s fees and costs, the borrowers were not required to pay attorney’s fees and cost pursuant to Fla. Stat. § 57.105 to the lender as the prevailing party. Edrisi v. Sarnoff, 715 So. 2d 1124, 1998 Fla. App. LEXIS 10783 (Fla. 3rd DCA 1998).

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605. Party’s motion for fees and costs pursuant to Fla. Stat. § 57.105 was denied where the issues before the reviewing appellate court were clearly not frivolous. Pizzarelli v. Rollins, 1997 Fla. App. LEXIS 13128 (Fla. 4th DCA 1997).

606. Trial court properly imposed fees under Fla. Stat. § 57.105 against plaintiff’s attorneys because they filed a frivolous claim on behalf of their clients but improperly ordered the attorneys to pay the cost of defendants’ expert witness fees because Fla. Stat. § 57.105 did not provide for the imposition of costs against the losing party’s attorney. Berman & Feldman v. Winn Dixie, 684 So. 2d 320, 1996 Fla. App. LEXIS 13143 (Fla. 4th DCA 1996).

607. In a lawsuit challenging the methods and procedures used by a municipality in contracting with a law firm to defend a lawsuit, the trial court improperly awarded attorney’s fees pursuant to Fla. Stat. § 57.105 because the action was not clearly lacking in merit and so devoid of even arguable substance as to be completely untenable. Brockway v. Town of Golfview, 675 So. 2d 699, 1996 Fla. App. LEXIS 6682 (Fla. 4th DCA 1996).

608. Fla. Stat. § 57.105 clearly makes “good faith” an avoidance of the presumptive assessment of fees against both attorney and client, but fees must be assessed against counsel as provided by the statute unless the attorney can show good faith; this places the burden where it should be. Horticultural Enters. v. Plantas Decorativas, LTDA, 623 So. 2d 821, 1993 Fla. App. LEXIS 8919 (Fla. 5th DCA 1993).

609. The trial judge was authorized to award attorney’s fees upon a voluntary dismissal only if he found a complete absence of a justiciable issue of either law or fact had been raised, but acted properly in awarding costs in a case where there was a voluntary dismissal. MacBain v. Bowling, 374 So. 2d 75, 1979 Fla. App. LEXIS 15642 (Fla. 3rd DCA 1979).

Civil Procedure: Remedies: Costs & Attorney Fees: Costs: Depositions & Transcripts

610. Because an appellee had a right to investigate issues regarding a decedent’s testamentary capacity, and because a personal representative (PR) failed to show that the requested deposition costs were reasonably necessary, the court properly denied the PR’s motion for the fees under Fla. Stat. § 57.105 and costs. Nasser v. Nasser, 975 So. 2d 531, 2008 Fla. App. LEXIS 939 (Fla. 4th DCA 2008).

Civil Procedure: Remedies: Injunctions: General Overview

611. Trial court abused its discretion by finding justiciable issues of fact or law where none were present and denying Fla. Stat. § 57.105 motions as the case involved more than a dismissal for failure to state a cause of action; it involved a dismissal for failure to state a cause of action after four nearly identical attempts to do so and without presenting a justiciable issue of fact or law. Bierlin v. Lucibella, 955 So. 2d 1206, 2007 Fla. App. LEXIS 7103 (Fla. 4th DCA 2007).

Civil Procedure: Remedies: Injunctions: Contempt

612. The determination of where child should be educated exceeded the scope of plaintiff’s motion for contempt, and the existence of a separate extra-judicial agreement between the parties concerning responsibility for the child’s education was not a valid defense to plaintiff’s motion for contempt for failure to pay court-ordered school expenses. Margulies v. Margulies, 528 So. 2d 957, 1988 Fla. App. LEXIS 3331 (Fla. 3rd DCA 1988).

Civil Procedure: Remedies: Judgment Interest

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613. As the trial court improperly failed to include prejudgment interest in petitioners' appellate attorneys' fees award, the total sum due was inaccurate, and thus the determined amount of post-judgment interest awarded was insufficient. Wells v. Halmac Dev., Inc., 184 So. 3d 620, 2016 Fla. App. LEXIS 1396 (Fla. 3rd DCA 2016).

Civil Procedure: Remedies: Judgment Interest: General Overview

614. Trial court properly awarded the buyer prejudgment interest under Florida law which required that the buyer be made whole from the date of its loss. Aerotech Res., Inc. v. Dodson Aviation, Inc., 91 Fed. Appx. 37, 2004 U.S. App. LEXIS 103 (10th Cir. Kan. 2004).

615. Trial court erred in awarding prejudgment interest to buyer where guarantor breached contract to sell a fishing boat and should only have held guarantor liable for the dollar amount specified in the guarantee; attorney’s fees under Fla. Stat. § 57.105 could not be awarded because buyer failed to make the argument in a timely fashion. Weigert v. Trade Wind Ventures, 685 So. 2d 962, 1996 Fla. App. LEXIS 13409 (Fla. 3rd DCA 1996).

616. In an award of attorney’s fees pursuant to Fla. Stat. § 57.105, the date of the court’s determination fixes the date for awarding prejudgment interest on previously incurred attorney’s fees even if the actual amount of the award has not yet been determined. Bremshey v. Morrison, 621 So. 2d 717, 1993 Fla. App. LEXIS 5541 (Fla. 5th DCA 1993).

Civil Procedure: Remedies: Judgment Interest: Prejudgment Interest

617. Trial court erred in not including prejudgment interest in petitioners' appellate attorneys' fees award, as interest on the award accrued from the date the entitlement to attorney fees was fixed by the court, even if it had not yet determined even though the amount of the award; moreover, this section includes prejudgment interest as part of the award. Wells v. Halmac Dev., Inc., 184 So. 3d 620, 2016 Fla. App. LEXIS 1396 (Fla. 3rd DCA 2016).

Civil Procedure: Remedies: Lis Pendens: General Overview

618. Absent a surety bond, there was no statutory authority for the award of attorney fees; because the purchaser failed to appeal an order discharging its notice of lis pendens, the trial court properly awarded costs. Tampa Bay 1, L.L.C. v. Lorello Cypress Family L.P., 821 So. 2d 434, 2002 Fla. App. LEXIS 10090 (Fla. 2nd DCA 2002).

Civil Procedure: Sanctions: General Overview

619. Dismissal of construction company’s complaint against a corporation with prejudice as sanction was error because the construction company’s failure in the complaint to refer to or seek to rescind the parties’ settlement agreement was not fraud; instead, if anything, the settlement agreement’s effect on the construction company’s claim was more appropriately raised by the corporation as an affirmative defense, as the corporation was not hampered in the presentation of its case by the alleged pleading defect. Dismissal was particularly inappropriate in situations where, as here, the attorney, and not the client, was responsible for the error. Rocka Fuerta Constr., Inc. v. Southwick, Inc., 103 So. 3d 1022, 2012 Fla. App. LEXIS 22160 (Fla. 5th DCA 2012).

620. Order granting attorney’s fees and costs pursuant to Fla. Stat. § 57.105(1) in a medical malpractice suit was improper because, given that the conduct of the patient’s counsel at issue came during jury selection, there was no way for counsel to “withdraw or appropriately correct” that allegation within 21 days after service of the doctors’ post-mistrial motion as provided for by § 57.105(4); further, an award of costs was not allowed under § 57.105. Ferere v. Shure, 65 So. 3d 1141, 2011 Fla. App. LEXIS 11351 (Fla. 4th DCA 2011).

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621. Denial of appellant’s motion for sanctions under Fla. Stat. § 57.105(1), was error because, inter alia, a prior appellate decision denying sanctions had no bearing on whether the trial court may itself have imposed sanctions against a judgment creditor for persisting in trying to enforce an invalid judgment against appellant; appellant had the right to demonstrate on the merits that he was entitled to § 57.105(1) fees. Appellant’s failure to raise the issue of trial court fees under § 57.105(1) in the prior appeal did not bar his claim for such sanctions. Williams v. Cadlerock Joint Venture LP, 14 So. 3d 292, 2009 Fla. App. LEXIS 11251 (Fla. 4th DCA 2009).

622. Because a plaintiff timely withdrew an invalid motion for attorney’s fees, pursuant to Fla. Stat. § 57.105(4), the defendants were not permitted to file with or present to the trial court a motion for attorney’s fees as a sanction; consequently, the trial court erroneously awarded attorney’s fees to the defendants. Vanderpol v. Frengut, 932 So. 2d 1251, 2006 Fla. App. LEXIS 11629 (Fla. 4th DCA 2006).

623. Under the new version of Fla. Stat. § 57.105, an appellee as well as an appellant may be subject to sanctions; and allowing appellate courts to impose sanctions on appellees for frivolous defense of trial court orders will not chill representation, but instead will emphasize that counsels’ obligations as officers of the court override their obligations to zealously represent their clients. Boca Burger, Inc. v. Forum, 912 So. 2d 561, 2005 Fla. LEXIS 1449 (Fla. 2005).

624. Trial court was without discretion to refuse to consider plaintiff’s amended complaint on the morning that defendant’s hearing on a motion to dismiss was scheduled because defendant’s motion to dismiss was not a pleading and defendant’s arguments misleading the trial court subjected defendant and counsel to an award of attorney’s fees for plaintiff. Forum v. Boca Burger, Inc., 788 So. 2d 1055, 2001 Fla. App. LEXIS 6945 (Fla. 4th DCA 2001).

625. Employer’s claim for attorney’s fees was properly denied, for employee’s wrongful discharge claim, which was premised upon the employee’s termination for voluntarily offering testimony adverse to the employer at a hearing to determine a co-worker’s right to unemployment benefits, was not a frivolous claim but was a valid, good faith effort to change existing law. Wiggins v. Southern Management Corp., 629 So. 2d 1022, 1993 Fla. App. LEXIS 12676 (Fla. 4th DCA 1993).

626. Fla. Stat. § 57.105 clearly makes “good faith” an avoidance of the presumptive assessment of fees against both attorney and client, but fees must be assessed against counsel as provided by the statute unless the attorney can show good faith; this places the burden where it should be. Horticultural Enters. v. Plantas Decorativas, LTDA, 623 So. 2d 821, 1993 Fla. App. LEXIS 8919 (Fla. 5th DCA 1993).

Civil Procedure: Sanctions: Baseless Filings

627. In a removed adversary proceeding in which a bankruptcy court had to determine the amount of attorneys' fees and costs arising from five state court orders awarding sanctions against defendants for discovery and litigation abuses, the court noted the difficulty of determining a reasonable number of hours where plaintiffs' lawyers failed to keep reliable or contemporaneous time records, even after the state court granted their requests for sanctions. The court eliminated any hours more properly classified as general litigation tasks not compensable under the sanction orders and patently unreasonable requests and resolved ambiguities in favor of plaintiffs' counsel. Orlando Gateway Partners, LLC v. Good Gateway, LLC (In re Orlando Gateway Partners, LLC), 2016 Bankr. LEXIS 1866 (Bankr. M.D. Fla. Apr. 29, 2016).

628. In a removed adversary proceeding in which a bankruptcy court had to determine the amount of attorneys' fees and costs arising from five state court orders awarding sanctions against defendants for discovery and litigation abuses, plaintiffs failed to meet their burden to show that any cost was reasonably necessary or connected in any way with the sanctions orders. Further, costs incurred in connection with a motion for sanctions related to litigation abuses were not recoverable. Orlando Gateway Partners, LLC v. Good Gateway, LLC (In re Orlando Gateway Partners, LLC), 2016 Bankr. LEXIS 1866 (Bankr. M.D. Fla.

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Apr. 29, 2016).

629. In a removed adversary proceeding in which a bankruptcy court had to determine the amount of attorneys' fees and costs arising from five state court orders awarding sanctions against defendants for discovery and litigation abuses, the court determined that a fee multiplier was not merited because plaintiffs did not identify a factor that the lodestar did not take into account adequately and prove with specificity that the enhancement was warranted. Nor was a discretionary global sanction appropriate, as no justification for such a sanction was credibly demonstrated. Orlando Gateway Partners, LLC v. Good Gateway, LLC (In re Orlando Gateway Partners, LLC), 2016 Bankr. LEXIS 1866 (Bankr. M.D. Fla. Apr. 29, 2016).

630. In a removed adversary proceeding in which a bankruptcy court had to determine the amount of attorneys' fees and costs arising from state court orders awarding sanctions against defendants (a debtor and on-debtors) for discovery and litigation abuses, the court determined that debtor was not liable for sanctions awarded for non-debtors' improper assertion of the automatic stay, and a non-debtor was not liable for sanctions on an order in which plaintiffs did not seek relief against that party. Defendants were jointly and severally liable (except to the extent they were found not liable for a particular sanction) because they were working jointly to defeat plaintiffs' legitimate discovery efforts. Orlando Gateway Partners, LLC v. Good Gateway, LLC (In re Orlando Gateway Partners, LLC), 2016 Bankr. LEXIS 1866 (Bankr. M.D. Fla. Apr. 29, 2016).

631. Trial court's determination that appellee raised a colorable claim related to a determination of who was the prevailing party in an arbitration was erroneous as a matter of law, and its decision to deny appellants their entitlement to fees under this statute was an abuse of discretion; appellee's position was not arguably supported under Hollub v. Narula, 704 So. 2d 689 (Fla. 3d DCA 1997) or any other valid authority in Florida. Wells v. Halmac Dev., Inc., 189 So. 3d 1015, 2016 Fla. App. LEXIS 5586 (Fla. 3rd DCA 2016).

632. Sanctions were not warranted for allegedly baseless filings since service of a precursor motion for sanctions over a year prior to voluntary dismissal of the case did not satisfy the requirement for prior notice after the case was dismissed. NCC Bus. Servs. v. Lemberg & Assocs., LLC, 2015 U.S. Dist. LEXIS 125323 (M.D. Fla. Sept. 17, 2015).

Civil Procedure: Sanctions: Baseless Filings: General Overview

633. Insurer that issued payment and performance bonds was entitled to attorney's fees it incurred in defending a subcontractor's baseless assertions contained in a section of the subcontractor's appellate brief; the allegations made in the section were without a good faith basis, lacking any factual or legal support. Aspen Air Conditioning, Inc. v. Safeco Ins. Co. of Am., 170 So. 3d 892, 2015 Fla. App. LEXIS 11041 (Fla. 3rd DCA 2015).

634. Appellant's motion seeking costs and attorney fees, apparently filed in an attempt to comply with the “safe harbor” requirements of this statute and Fla. R. App. P. 9.410, was premature because appellee had not yet filed a paper or asserted a defense or claim in the instant appeal that was “challenged” by appellant. Reznek v. Chase Home Fin., LLC, 2014 Fla. App. LEXIS 20023 (Dec. 10, 2014).

635. Denial of a ranch’s Fla. Stat. § 57.105(1) motion for attorney’s fees against a lawyer for neighbors was proper because § 57.105(1) did not support an attorney’s fee award solely against a party’s attorney where, as here, the case against the attorney’s client was dismissed and the claim for attorney’s fees against the client was waived; the lawyer did not move for attorney’s fees against the ranch in order to seek or defend his own personal interests in the pending litigation between the ranch and the neighbors or to gain something independent of the neighbors and without the neighbors’ consent. Moreover, there was no allegation in the ranch’s motion that the lawyer had made himself a party in this proceeding or acted in a manner that would have raised his status to a “party.” Sexton v. Ferguson, 79 So. 3d 51, 2011 Fla. App. LEXIS 18098 (Fla. 4th DCA

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2011).

636. Because the record clearly demonstrated that the bank made the necessary filings within the 60-day period following the notice of lack of prosecution, the bank’s foreclosure case should not have been dismissed for lack of prosecution, and the borrowers’ counsel should have conceded error on this issue on appeal. Deutsche Bank Nat'l Trust Co. v. Basanta, 88 So. 3d 216, 2011 Fla. App. LEXIS 16502 (Fla. 3rd DCA 2011).

637. Lienholder was entitled to attorney’s fees under Fla. Stat. § 57.105(1) because the purported assignee’s foreclosure action was unsupported by necessary facts, and for purposes of § 57.105(1), it did not matter that the purported assignee may have been able to prevail in a new foreclose action; because the purported assignee did not own or possess the note and mortgage when it filed its suit, it lacked standing to maintain the foreclosure. Country Place Cmty. Ass'n v. J.P. Morgan Mortg. Acquisition Corp., 51 So. 3d 1176, 2010 Fla. App. LEXIS 19829 (Fla. 2nd DCA 2010).

638. Order that a law firm pay 50 percent of attorneys’ fees in an underlying claim pursuant to Fla. Stat. § 57.105(1) was error because the trial court terminated the proceedings without hearing the law firm’s witness who was prepared to testify that the law firm had relied on its client’s representations in good faith when pursuing the underlying claim; further, the trial court’s order was insufficient because it did not include the required express finding as to the lack of good faith on the part of the law firm. Ferdie v. Isaacson, 2009 Fla. App. LEXIS 7754 (Fla. 4th DCA 2009).

639. Fla. Stat. § 57.105 is intended to address frivolous pleadings. Peyton v. Horner, 920 So. 2d 180, 2006 Fla. App. LEXIS 1648 (Fla. 2nd DCA 2006).

640. Trial court erred in granting property owners’ motion for attorney fees after awarding judgment to them in a civic association’s action to prevent them from violating certain deed restrictions imposed on their subdivision because, while the association’s position that it could enforce the restrictions against the owners might have been incorrect, it was not frivolous. Peyton v. Horner, 920 So. 2d 180, 2006 Fla. App. LEXIS 1648 (Fla. 2nd DCA 2006).

641. Since the trial court made a determination that the requirements of Fla. Stat. § 57.105 had been met and that determination was supported by the record which showed that both the home seller and his attorney knew the seller’s theory was baseless, fees under Fla. Stat. § 57.105 should have been assessed in favor of the buyers who were attempting to obtain their deposit. Morton v. Heathcock, 913 So. 2d 662, 2005 Fla. App. LEXIS 14846 (Fla. 3rd DCA 2005), dismissed, 925 So. 2d 1031, 2006 Fla. LEXIS 83 (Fla. 2006).

642. Since the fee award was imposed on the trial court’s own initiative as expressly authorized by Fla. Stat. § 57.105(1), and not at a party’s request, the 21 day notice requirement imposed by Fla. Stat. § 57.105(4) did not apply. Morton v. Heathcock, 913 So. 2d 662, 2005 Fla. App. LEXIS 14846 (Fla. 3rd DCA 2005), dismissed, 925 So. 2d 1031, 2006 Fla. LEXIS 83 (Fla. 2006).

643. Circuit court did not abuse its discretion in awarding a corporation attorneys’ fees as an investor’s lawsuit was meritless; further, the court’s failure to distinguish between the amount awarded under Fla. Stat. § 895.01 and Fla. Stat. § 57.105 was of no consequence as the entire award could have been made pursuant to § 57.105 alone. Smith v. Viragen, Inc., 902 So. 2d 187, 2005 Fla. App. LEXIS 2470 (Fla. 3rd DCA 2005).

644. Where the debtor sought an award of attorney’s fees, costs, and punitive damages pursuant to Fed. R. Bankr. P. 9011 and Fla. Stat. § 57.105, based on his contention that a complaint challenging a pre-petition transfer of property to debtor’s mother-

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in-law was filed by creditor for an improper purpose and without adequate pre-filing investigation, the complaint was not filed for an improper purpose, based on the amount at issue and the information obtained by the creditor. Citrus & Chem. Bank v. Floyd (In re Floyd), 322 B.R. 205, 2005 Bankr. LEXIS 407 (Bankr. M.D. Fla. 2005).

645. Trial court erred in denying attorney’s fees sought by appellant under Fla. Stat. § 57.105 because appellees drew out the matter before finally conceding that there was no viable defense. O'Hara Gallery, Inc. v. Nader, 892 So. 2d 512, 2004 Fla. App. LEXIS 19136 (Fla. 3rd DCA 2004).

646. Trial court properly awarded attorney’s fees pursuant to Fla. Stat. §§ 57.105 and 607.1421(4) against a doctor, individually, where he was in control of the frivolous proceedings brought by his medical practice against an accountant and his firm for breach of fiduciary duty and malpractice, even though the doctor was not, technically, a party to the suit. Zweibach v. Gordimer, 884 So. 2d 244, 2004 Fla. App. LEXIS 11714 (Fla. 2nd DCA 2004).

647. Florida courts construe Fed. R. Civ. P. 11 as the prototype for the Florida frivolous litigation statute, Fla. Stat. § 57.105; therefore sanctions under the Florida statute was inappropriate for the same reasons that Fed. R. Civ. P. 11 sanctions were unwarranted because the fact that a party prevailed on appeal on jurisdictional grounds did not mean that the opposing party’s conduct in bringing the claim was sanctionable. Religious Tech. Ctr. v. Liebreich, 98 Fed. Appx. 979, 2004 U.S. App. LEXIS 10011 (5th Cir. Tex. 2004).

648. Lack of personal jurisdiction is not synonymous with lack of a substantive basis for a claim. Religious Tech. Ctr. v. Liebreich, 98 Fed. Appx. 979, 2004 U.S. App. LEXIS 10011 (5th Cir. Tex. 2004).

649. In determining whether a party is entitled to statutory attorney’s fees under Fla. Stat. § 57.105, frivolousness is determined when the claim or defense was initially filed; if the claim or defense is not initially frivolous, the court must then determine whether the claim or defense became frivolous after the suit was filed. There are established guidelines for determining when an action is frivolous, including where a case is found: (a) to be completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (b) to be contracted by overwhelming evidence; (c) as having been undertaken primarily to delay or prolong the resolution of the litigation, or to harass or to maliciously injure another; or (d) as asserting material factual statements that are false. Wendy's of N.E. Fla., Inc. v. Vandergriff, 865 So. 2d 520, 2003 Fla. App. LEXIS 17583 (Fla. 1st DCA 2003).

650. Unlike its predecessor, the 1999 version of Fla. Stat. § 57.105 no longer requires a party to show a complete absence of a justiciable issue of fact or law, but instead allows recovery of fees for any claims or defenses that are unsupported; however, § 57.105 must be applied carefully to ensure that it serves the purpose for which it was intended, which was to deter frivolous pleadings. It is clear that the bar for the impositions of sanctions has been lowered under § 57.105, but just how far it has been lowered is an open question requiring a case by case analysis. Wendy's of N.E. Fla., Inc. v. Vandergriff, 865 So. 2d 520, 2003 Fla. App. LEXIS 17583 (Fla. 1st DCA 2003).

651. Although the losing party may be said to be on continual notice that attorney’s fees may be awarded under Fla. Stat. § 57.105(1) within a reasonable time after entry of final judgment, such notice is not perpetual; an 18 and one-half month delay falls outside the boundary of reasonableness. Graef v. Dames & Moore Group, Inc., 857 So. 2d 257, 2003 Fla. App. LEXIS 13589 (Fla. 2nd DCA 2003).

652. Question of whether a party may be unfairly surprised or prejudiced by a claim for attorney’s fees under Fla. Stat. § 57.105 necessarily involves whether the claim is founded on an allegation of frivolousness under § 57.105(1) or a claim for prevailing party fees under § . 57.105(2); although both types of claims are collateral to the main litigation, a claim under § 

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57.105(2) must be pleaded before entry of final judgment so that the losing party is on notice that the prevailing party will seek such fees after the conclusion of the litigation, and a claim under § 57.105(1) need not be pleaded before entry of final judgment. Graef v. Dames & Moore Group, Inc., 857 So. 2d 257, 2003 Fla. App. LEXIS 13589 (Fla. 2nd DCA 2003).

653. Trial court’s express reservation of jurisdiction to consider attorney’s fees in an order subsequent to its summary judgment in favor of appellees did not require the conclusion that the subsequent order should prevail over the summary judgment as the starting point to measure appellees’ delay in filing a motion for attorney’s fees under Fla. Stat. § 57.105(1); appellees did not need to wait for the trial court to expressly reserve the jurisdiction that it inherently retained after entry of final judgment. Graef v. Dames & Moore Group, Inc., 857 So. 2d 257, 2003 Fla. App. LEXIS 13589 (Fla. 2nd DCA 2003).

654. Length of appellees’ delay in filing its Fla. Stat. § 57.105(1) motion for attorney’s fees was properly measured from the date the trial court entered an order granting appellees summary judgment. Graef v. Dames & Moore Group, Inc., 857 So. 2d 257, 2003 Fla. App. LEXIS 13589 (Fla. 2nd DCA 2003).

655. Appellees were required to move for Fla. Stat. § 57.105(1) attorney’s fees within a “reasonable time” after entry of final judgment and because appellees filed their motion before the effective date of Fla. R. Civ. P. 1.525, which established a 30-day time limit for the filing of postjudgment motions for costs and attorney’s fees, the bright line of Rule 1.525 did not apply to the case. Graef v. Dames & Moore Group, Inc., 857 So. 2d 257, 2003 Fla. App. LEXIS 13589 (Fla. 2nd DCA 2003).

656. Court reversed an award of attorney’s fees to appellee under Fla. Stat. § 57.105(1), holding that where the § 57.105(1) motion was filed 555 days after the entry of summary judgment in favor of appellees, the patent unreasonableness of the delay outweighed appellant’s inability to show prejudice. Graef v. Dames & Moore Group, Inc., 857 So. 2d 257, 2003 Fla. App. LEXIS 13589 (Fla. 2nd DCA 2003).

657. Courts have identified several factors in determining reasonableness of a delay in filing a motion for attorney’s fees under Fla. Stat. § 57.105(1) (1993), including the danger of unfair surprise or prejudice to a party against whom fees are sought, the existence of special or extenuating circumstances justifying the delay, the pendency of an appeal, whether the policy underlying the requirement of reasonableness is served or offended, and the actual length of delay; no one factor is dispositive, and the weight assigned to any given factor depends on the circumstances of the case. Graef v. Dames & Moore Group, Inc., 857 So. 2d 257, 2003 Fla. App. LEXIS 13589 (Fla. 2nd DCA 2003).

658. Although the losing party may be said to be on continual notice that attorney’s fees may be awarded under Fla. Stat. § 57.105(1) (1993) within a reasonable time after entry of final judgment, such notice is not perpetual. Graef v. Dames & Moore Group, Inc., 857 So. 2d 257, 2003 Fla. App. LEXIS 13589 (Fla. 2nd DCA 2003).

659. Purpose of Fla. Stat. § 57.105(1) (1993) is to dissuade litigants and attorneys from pursuing baseless claims, stonewall defenses, and sham appeals in civil litigation by placing a price tag on losing parties who engage in these activities; requiring motions under § 57.105(1) (1993) to be filed within a reasonable time after entry of final judgment preserves the statute’s purpose by curbing needless prolongation of the litigation. Graef v. Dames & Moore Group, Inc., 857 So. 2d 257, 2003 Fla. App. LEXIS 13589 (Fla. 2nd DCA 2003).

660. When awarding fees under Fla. Stat. § 57.105(1), the trial court must find that, at the time a claim or defense is presented to the court, the losing party knows or should know that it was not supported by the material facts necessary to establish the claim or defense or would not be supported by the application of then-existing law to those material facts; an absence of justiciable issues is no longer the standard for awarding fees under the statute. Sher v. Countrywide Home Loans, Inc., 848 So.

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2d 1246, 2003 Fla. App. LEXIS 10224 (Fla. 4th DCA 2003).

661. Trial court’s award of attorney fees to a mortgage company that had purchased a home at a foreclosure sale, and thereafter, the tenants that had been renting the home commenced an action based on assorted tort theories due to their personal belongings having been removed by a man hired by the listing agent to clear the house in preparation for resale, was error where the trial court had awarded the fees upon finding that no justiciable issues had been presented by the tenants’ claims for intentional infliction of emotional distress and fraud; the court noted that such was no longer the standard for an award of such fees and further proceedings were required on the correct standard of whether, at the time that the complaint was presented, the tenants knew or should have know that it was not supported by material facts necessary to establish their claims. Sher v. Countrywide Home Loans, Inc., 848 So. 2d 1246, 2003 Fla. App. LEXIS 10224 (Fla. 4th DCA 2003).

662. Dismissal for failure to prosecute under Fla. R. Civ. P. 1.420(e) is not an adjudication on the merits. Furthermore, an award of fees is not always appropriate under Fla. Stat. § 57.105 when the party seeking fees was successful in obtaining the dismissal of the action. Mullins v. Kennelly, 847 So. 2d 1151, 2003 Fla. App. LEXIS 9477 (Fla. 5th DCA 2003).

663. Because a trial court sanctioned a client and her attorney only for conduct that occurred subsequent to the effective date of the 1999 amendment to Fla. Stat. § 57.105, there was no impediment to or unfairness in the application of the standard that whether conduct should be sanctioned should be measured by the standard in effect at the time of the conduct sanctioned. However, the fact that the witnesses provided contradictory evidence did not necessarily compel the trial court to the conclusion that the action lacked support and therefore was sanctionable. Mullins v. Kennelly, 847 So. 2d 1151, 2003 Fla. App. LEXIS 9477 (Fla. 5th DCA 2003).

664. Any interpretation of Fla. Stat. § 57.105 has to give effect to its central goal of deterring meritless filings and streamlining the administration and procedure of the courts. Mullins v. Kennelly, 847 So. 2d 1151, 2003 Fla. App. LEXIS 9477 (Fla. 5th DCA 2003).

665. 1999 amendment to Fla. Stat. § 57.105 substantively changed the statute by creating rights to fees under circumstances not previously authorized. As a result, the revised statute cannot be applied retroactively to papers filed, actions taken, or matters occurring prior to the effective date of the amendment; however, it was properly applied to actions taken or positions maintained after the effective date of the statute even though the complaint was filed prior thereto. Mullins v. Kennelly, 847 So. 2d 1151, 2003 Fla. App. LEXIS 9477 (Fla. 5th DCA 2003).

666. In a dependency action, an award of attorneys’ fees to the parents was justified because dependency proceedings were civil in nature and the attorneys’ fees statute applied to dependency proceedings. Dep't of Children & Family Servs. v. Carter, 851 So. 2d 197, 2003 Fla. App. LEXIS 9245 (Fla. 5th DCA 2003).

667. In a dependency action, an award of Fla. Stat. § 57.105 attorneys’ fees to the parents was justified because dependency proceedings were not criminal in nature where they did not involve the risk of loss of physical liberty, and Fla. Stat. § 57.105 applied to dependency proceedings. Dep't of Children & Family Servs. v. Carter, 851 So. 2d 197, 2003 Fla. App. LEXIS 9245 (Fla. 5th DCA 2003).

668. Fee award ordering an attorney to pay fees was improper because the attorney did not file the initial complaint in the action and there had been no determination that the initial complaint was frivolous, as required by Fla. Stat. § 57.105. Bisson v. Arellano, 844 So. 2d 648, 2003 Fla. App. LEXIS 1143 (Fla. 3rd DCA 2003).

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669. Fla. Stat. § 57.105 did not provide the basis for the affirmance of an award of attorney fees against an attorney where there was no finding that the attorney engaged in bad conduct by subpoenaing two attorneys; the court noted that there was no evidence that the suit was frivolous. Moakley v. Smallwood, 826 So. 2d 221, 2002 Fla. LEXIS 341 (Fla. 2002).

670. In an action for dissolution of a corporation, where a trial court referred the matter of valuation of shares to a special master who had overseen discovery without both parties’ consent and despite repeated objections by counsel for appellant, in contravention of Fla. R. Civ. P. 1.490(c), such referral occurred prior to the effective date of a revision to the sanctions statute, Fla. Stat. § 57.105. Sanctions were denied because the former version of Fla. Stat. § 57.105 applied, which required a finding that the lawsuit had been frivolous from its inception, and nothing warranted such a finding. Rosenberg v. Morales, 804 So. 2d 622, 2002 Fla. App. LEXIS 1158 (Fla. 3rd DCA 2002).

671. Under Fla. Stat. § 57.105, the trial court can only award attorney fees to a defendant if plaintiff’s complaint was frivolous when filed, not if it becomes frivolous at some later point. National Continental Ins. Co. v. Barker, 773 So. 2d 648, 2000 Fla. App. LEXIS 16668 (Fla. 4th DCA 2000).

672. When the record indicated a clear connection between judgment creditor and judgment debtor, including a substantial transfer of assets warranting the initiation of suit and discovery, even though discovery subsequently revealed that debtors were entitled to a judgment as a matter of law, it could not be said that creditor’s complaint was completely lacking in justiciable issues of law or fact at the time it was filed; therefore, pursuant to Fla. Stat. § 57.105(1), the trial court’s award of attorneys’ fees to debtor was inappropriate. H.J.J., Inc. v. Party Prods. II, Inc., 738 So. 2d 515, 1999 Fla. App. LEXIS 11024 (Fla. 3rd DCA 1999).

673. Fla. Stat. § 57.105 requires an award of attorney fees only if the claim or defense is so totally devoid of merit as to be frivolous. Department of Health v. Curry, 722 So. 2d 874, 1998 Fla. App. LEXIS 14792 (Fla. 1st DCA 1998).

674. Because Fla. Stat. § 627.727(6) did not limit how the joinder of a tortfeasor and an underinsured motorist carrier could occur, an insured’s attempt to join its underinsured motorist carrier in the insured’s action against a tortfeasor was not so devoid of merit as to have warranted the award of attorney’s fees to the carrier under Fla. Stat. § 57.105. Young v. Dharamdass, 695 So. 2d 828, 1997 Fla. App. LEXIS 6248 (Fla. 4th DCA 1997).

675. Where a county successfully defended against the claims of an “adult entertainment establishment” for declaratory and injunctive relief, the fact that the trial court ruled in the county’s favor indicates that its defenses were not frivolous but had merit when they were presented, and the “adult entertainment establishment” was not entitled to an award of attorney’s fees. Playtime of Brevard v. Board of County Comm'rs, 687 So. 2d 954, 1997 Fla. App. LEXIS 1019 (Fla. 5th DCA 1997).

676. A claim or defense is frivolous so as to justify an award of attorney’s fees only if, at the time it is presented, it is so clearly devoid of merit both on the facts and the law as to be completely untenable, i.e., if the court finds that there is a complete absence of a justiciable issue of either law or fact raised by the complaint or defense of the losing party. Playtime of Brevard v. Board of County Comm'rs, 687 So. 2d 954, 1997 Fla. App. LEXIS 1019 (Fla. 5th DCA 1997).

677. Award of attorney fees under Fla. Stat. § 57.105 was only proper where an entire action was clearly lacking in merit and entirely devoid of even arguable substance as to be completely untenable. Accordingly, a town was not entitled to attorney fees where the taxpayers’ claim, which alleged misconduct by a town in the procedures it employed in retaining a law firm for the defense of a lawsuit, was not so frivolous and completely untenable that the taxpayers and their attorney should be punished for pursuing the action. Brockway v. Town of Golfview, 675 So. 2d 699, 1996 Fla. App. LEXIS 6682 (Fla. 4th DCA 1996).

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678. In a lawsuit challenging the methods and procedures used by a municipality in contracting a law firm to defend a lawsuit, the trial court improperly awarded attorneys fees pursuant to Fla. Stat. § 57.105 because the action was not clearly lacking in merit and devoid of even arguable substance as to be completely untenable. Brockway v. Town of Golfview, 675 So. 2d 699, 1996 Fla. App. LEXIS 6682 (Fla. 4th DCA 1996).

679. In denying defendant’s request for fees for successfully defending against a civil theft claim based on a finding that plaintiff’s suit was not frivolous, the trial court erroneously applied the frivolous suit standard of Fla. Stat. § 57.105 instead of the standard under the civil theft statute. Consequently, under Fla. Stat. § 772.104 and Fla. Stat. § 772.11, defendant was entitled to reasonable attorney fees incurred upon a finding that plaintiff raised the civil theft claim without substantial factual or legal support. Bronson v. Bronson, 685 So. 2d 994, 1996 Fla. App. LEXIS 13458 (Fla. 5th DCA 1996).

680. In denying defendant’s request for fees for successfully defending against a civil theft claim based on a finding that plaintiff’s suit was not frivolous, the trial court erroneously applied the frivolous suit standard of Fla. Stat. § 57.105 instead of the standard under the civil theft statute. Consequently, under Fla. Stat. §§ 772.104, 772.10, and 772.11, defendant was entitled to reasonable attorney fees incurred upon a finding that plaintiff raised the civil theft claim without substantial factual or legal support. Bronson v. Bronson, 685 So. 2d 994, 1996 Fla. App. LEXIS 13458 (Fla. 5th DCA 1996).

681. Where the trial court granted a party’s motion for summary judgment on the basis of the trial court’s analysis and interpretation of a contractual provision to mean not what it apparently stated, such an analysis belied a finding that the defense to the action was frivolous and thus an award of attorneys’ fees under Fla. Stat. § 57.105 was an abuse of discretion. DOT v. Kisinger Campo & Assocs., 661 So. 2d 58, 1995 Fla. App. LEXIS 5743 (Fla. 2nd DCA 1995).

682. In a creditor’s action against the debtor’s law firm that provided erroneous information to the creditors regarding the debtor’s financial and legal status, the trial court’s award of attorneys’ fees to the law firm was improper because the creditor’s action was in good faith and presented a justiciable issue of law; even if a portion of a lawsuit was frivolous, an award of attorneys’ fees was not appropriate against a plaintiff so long as the complaint alleged some justiciable issue. Huie v. Dent & Cook, P.A., 635 So. 2d 111, 1994 Fla. App. LEXIS 3269 (Fla. 2nd DCA 1994).

683. Fla. Stat. § 57.105 does not require that entitlement to statutory attorney’s fees be specifically pled in the answer because it is only after the case has terminated that a sensible judgment can be made as to whether the adverse party raised nothing but frivolous issues in the cause; thus, a postjudgment motion for attorney’s fees is appropriate under Fla. Stat. § 57.105. Ganz v. HZJ, Inc., 605 So. 2d 871, 1992 Fla. LEXIS 1653 (Fla. 1992).

684. Award of attorney’s fees in favor of third-party defendant real estate brokers in an action by the seller based on breach of fiduciary duty could not be sustained under Fla. Stat. § 57.105 because there was no factual basis for an award of fees based on a finding that the seller’s third-party action was frivolous; to the contrary, there were explicit statements in the record by the trial court that the record was not sufficiently developed for that determination, and that the face of the complaint would not support a finding that the action was frivolous. Dalia v. Duda, 576 So. 2d 868, 1991 Fla. App. LEXIS 2467 (Fla. 3rd DCA 1991).

685. Award of attorney’s fee pursuant to Fla. Stat. § 57.105 for a frivolous appeal was affirmed because the party who claimed that the judge was biased against him never filed a motion for disqualification. Hatcher v. Roberts, 538 So. 2d 1300, 1989 Fla. App. LEXIS 742 (Fla. 1st DCA 1989).

686. Where seller had absolutely no proof that subsequent purchaser had actual or constructive knowledge of any compound interest owed pursuant to an intervening purchaser’s sales contract, seller’s foreclosure suit against subsequent purchaser was

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frivolous and presented no justiciable issue of fact or law and justified an award of attorney’s fees to subsequent purchaser. Zibell v. Chan, 535 So. 2d 708, 1988 Fla. App. LEXIS 5760 (Fla. 5th DCA 1988).

687. Sanctions could not be granted under Fla. Stat. § 57.105 against a developer because there could be no “prevailing party” under Fla. Stat. § 57.105 until there was a disposition of the case. Ruppel v. Gulf Winds Apartments, Inc., 508 So. 2d 534, 1987 Fla. App. LEXIS 8781 (Fla. 2nd DCA 1987).

688. Putative father was not entitled to receive attorney’s fees under Fla. Stat. § 57.105 from the Florida Department of Health and Rehabilitative Services, which stood in the place and stead of the mother in the paternity action, because justiciable issues of law and fact were raised in good faith concerning the child’s paternity, and the putative father’s admission to having had sexual relations with the mother during the critical time of conception lead to the conclusion that the action was not frivolous. Richardson v. Helms, 502 So. 2d 1372, 1987 Fla. App. LEXIS 6998 (Fla. 2nd DCA 1987).

689. Where a complaint was fatally defective for attempting to relitigate issues foreclosed by an administrative proceeding, defendants’ remedy for defending on issues totally without merit or substance was a motion for attorney’s fees under Fla. Stat. § 57.105. Board of Trustees v. Ray, 444 So. 2d 1110, 1984 Fla. App. LEXIS 11611 (Fla. 4th DCA 1984).

690. In the first attempt to assert liability against the state because of the alleged negligence of a prosecuting attorney since sovereign immunity was waived by Fla. Stat. § 768.28, the action could be classified as frivolous merely because it was unsuccessful; it was a good faith effort to seek an interpretation of a new statute, and was at least arguable, so appellants should not have been penalized pursuant to Fla. Stat. § 57.105 for their unsuccessful efforts to expand the scope of the law by judicial interpretation. Russell v. State, 417 So. 2d 1119, 1982 Fla. App. LEXIS 20837 (Fla. 5th DCA 1982).

691. Summary judgment rendered pursuant to Fla. R. Civ. P. 1.150(c), upon a showing that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law, is not equivalent to the finding of frivolousness required by Fla. Stat. § 57.105 for an award of attorney’s fees. Whitten v. Progressive Casualty Ins. Co., 410 So. 2d 501, 1982 Fla. LEXIS 2356 (Fla. 1982), overruled in part, Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145, 1985 Fla. LEXIS 3238 (Fla. 1985), overruled in part as stated in Carnival Leisure Indus. v. Holzman, 660 So. 2d 410, 1995 Fla. App. LEXIS 9909 (Fla. 4th DCA 1995), superseded by statute as stated in McPherson v. Bittner, 126 So. 3d 1230, 2012 Fla. App. LEXIS 18499 (Fla. 4th DCA 2012).

692. Where the company’s complaint against a corporation was dismissed twice for failure to state a cause of action and the company presented no judiciable issues on appeal, the corporation was entitled to an award of attorney’s fees for having to defend the frivolous lawsuit at the trial and appellate levels. P. J. Constructors, Inc. v. Carter Electric Co., 410 So. 2d 536, 1982 Fla. App. LEXIS 19114 (Fla. 5th DCA 1982).

Civil Procedure: Sanctions: Baseless Filings: Bad Faith Motions

693. Sanctioning of counsel under Fla. Stat. § 57.105(1)(a) and (3) for filing affirmative defenses not supported by the facts and for the purpose of unreasonable delay was appropriate because the trial court expressly found that the affirmative defenses were frivolous and counsel was not acting in good faith based upon the representation of his clients. Korte v. US Bank Nat'l Ass'n, 64 So. 3d 134, 2011 Fla. App. LEXIS 8399 (Fla. 4th DCA 2011).

Civil Procedure: Sanctions: Baseless Filings: Certification Requirements

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694. In an action wherein a county police department seized $129,000 from a claimant, who was a Colombian citizen, the trial court erred in rejecting the claimant's request for an award of fees pursuant to this section because the department knew before the forfeiture petition was filed that no sufficient probability existed to warrant a reasonable belief that the seized currency was connected to criminal activity and, as such, neither the facts nor the law supported in any fashion, the forfeiture sought. Garrido v. Miami-Dade Police Dep't (In re 100,000 Euros), 2015 Fla. App. LEXIS 2556 (Feb. 25, 2015).

Civil Procedure: Sanctions: Baseless Filings: Frivolous Lawsuits

695. Award of fees to a trustee and trustee was warranted because it was clear that a judgment creditor's motion for fees was frivolous based on the law that prohibited such a fee award against impleaded defendants like the trust and trustee in supplementary proceedings, the repeated warnings and detailed legal analysis, and the creditor's attorney's continued failure to withdraw the motion. Paul v. Avrahami, 2017 Fla. App. LEXIS 5064 (Fla. 4th DCA 2017).

696. Trial court erred when it denied a motion for attorney's fees by a trustee and his revocable trust, as a judgment creditor's attorney knew or should have known that his request for attorney's fees against them, arising from the trust and trustee being impleaded defendants in a supplementary proceeding involving a fraudulent transfer, was not supported by material facts or by the overwhelming case and statutory law at the time. Paul v. Avrahami, 2017 Fla. App. LEXIS 5064 (Fla. 4th DCA 2017).

697. Denial of motion for attorney's fees was proper because, while the trial court determined appellee was not an interested person with regard to appellant's position as a guardian, appellee's removal petition was not frivolous because appellee had a valid basis to argue that she would reasonably be expected to be affected by appellant's continued control over the ward. St. Peter v. Osorio-Khor, 198 So. 3d 941, 2016 Fla. App. LEXIS 11720 (Fla. 4th DCA 2016).

698. Because the debtor could not employ the safe harbor statute, regarding frivolous lawsuits, as a basis for an attorney's fees award after she proved that the credit card assignee never became a party to the contract, the circuit court applied the wrong law when it upheld the county court's award of attorney's fees on that basis. HFC Collection Ctr., Inc. v. Alexander, 190 So. 3d 1114, 2016 Fla. App. LEXIS 6149 (Fla. 5th DCA 2016).

699. Trial court erred in granting appellees' motions for sanctions and awarding attorney fees because there was an arguable basis for appellant's contention the final judgment related to the removal of vegetation from a utility easement addressed only the portion of the easement outside of (adjacent to) appellant's property line, not to anything growing on his property. Kowallek v. Rehm, 189 So. 3d 262, 2016 Fla. App. LEXIS 5301 (Fla. 4th DCA 2016).

700. Trial court erred in awarding attorney's fees under Fla. Stat. § 57.105 against a wife who sought to establish her late husband's lost will, because the wife presented evidence in the form of the husband's attorney's affidavits and deposition testimony that the husband had signed a will drafted by the attorney, although the attorney's evidence was ultimately weighed and rejected by the trial court. Casey v. Jensen, 189 So. 3d 924, 2016 Fla. App. LEXIS 4445 (Fla. 2nd DCA 2016).

701. Appellate court, upon its own initiative, sanctioned an attorney for filing a frivolous appeal because the attorney admitted to appearing for a child who was already represented without contacting the child's counsel of record, and knew the matter of the child's emancipation was fully litigated and ruled upon by the trial court nearly a year before; the attorney also failed to timely respond to the appellate court's show-cause order, or ask for leave to file his response sixteen days late. In the Interest of A.T.H., 180 So. 3d 1212, 2015 Fla. App. LEXIS 18646 (Fla. 1st DCA 2015).

702. Where appellant asserted a counterclaim that could not satisfy the statute of frauds, the court erred in awarding appellee costs under this section, as it does not provide for an award of costs. Heldt-Pope v. Thibault, 198 So. 3d 650, 2015 Fla. App.

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LEXIS 17048 (Fla. 2nd DCA 2015).

703. Trial court did not abuse its discretion in awarding appellee attorney's fees as a sanction for appellant's asserting a counterclaim that could not satisfy the statute of frauds; that she voluntarily dismissed the counterclaim did not divest the court of jurisdiction to award sanctions, as she failed to avail herself of this section's safe harbor provision after proper notice by appellee. Heldt-Pope v. Thibault, 198 So. 3d 650, 2015 Fla. App. LEXIS 17048 (Fla. 2nd DCA 2015).

704. Man who was erroneously named in a paternity suit by the Department of Revenue (DOR) served his motion for attorney's fees against the DOR under Fla. Stat. § 57.105, more than 21 days prior to filing the motion as required by § 57.105(4); given the DOR's random selection of the man's address from a phone book, an award of fees was justified. Lopez v. Dep't of Revenue, 201 So. 3d 119, 2015 Fla. App. LEXIS 14477 (Fla. 3rd DCA 2015).

705. Trial court did not abuse its discretion by denying lessees' motions for attorney's fees because, while the lessees prevailed on their claim, the taxation matter at issue concerned a complicated area of the law. Grove Key Marina, LLC v. Casamayor, 166 So. 3d 879, 2015 Fla. App. LEXIS 7977 (Fla. 3rd DCA 2015).

706. Circuit court erred in finding that appellees should be sanctioned because their claim was presented as a good faith argument for the establishment of new law, with a reasonable expectation of success. McCullough v. Kubiak, 2015 Fla. App. LEXIS 2140 (Feb. 18, 2015).

707. Appellant was not entitled to attorney's fees since he did not comply with Fla. R. Jud. Admin. 2.516 where: (1) the e-mail he sent appellee's attorney before filing the sanctions motion attached the motion in Word format instead of a PDF or link; (2) the subject line failed to state “SERVICE OF COURT DOCUMENT” and the circuit court case number was not correctly identified; (3) the body of the e-mail failed to contain any of the required information, but said, “See attached motion”; (4) this section was strictly construed as it was in derogation of the common law; and (5) substantial compliance with Rule 2.516 was insufficient under the safe harbor provision, even though appellee had actual notice. Matte v. Caplan, 140 So. 3d 686, 2014 Fla. App. LEXIS 8853 (Fla. 4th DCA 2014).

708. Strict compliance with Fla. R. Jud. Admin. 2.516 regarding e-mail service of pleadings is required before a court may assess attorney's fees pursuant to this section; actual notice does not allow a party to evade strict compliance with this section. Matte v. Caplan, 140 So. 3d 686, 2014 Fla. App. LEXIS 8853 (Fla. 4th DCA 2014).

709. In a shopping plaza corporation’s action against a shareholder for maintenance assessments due, the trial court’s assessment of attorney’s fees against the shareholder pursuant to Fla. Stat. § 57.105(1) was not supported by a finding that the shareholder’s counterclaims were frivolous or so devoid of merit on the facts and law as to be completely untenable; in fact, the counterclaim for slander of title stated a claim for relief. Jenkins v. Plaza 3000, Inc., 134 So. 3d 1127, 2014 Fla. App. LEXIS 1838 (Fla. 4th DCA 2014).

710. Although there was substantial evidence supporting a trial court’s finding that an insured’s complaint was frivolous, the trial court’s order finding the title insurer entitled to $ 54,051.20 in fees under this statute was technically deficient because the order failed to include a specific finding regarding the complete absence of a justiciable issue in the insured’s cause of action. Palm Beach Polo Holdings, Inc. v. Stewart Title Guar. Co., 134 So. 3d 1073, 2014 Fla. App. LEXIS 153 (Fla. 4th DCA 2014).

711. Sanctions for a frivolous attempt to extend a tenant’s possession of a unit after a foreclosure sale were reallocated equally between counsel and the tenant under Fla. Stat. § 57.105(1) as counsel was responsible for the frivolous defenses asserted in

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the tenant’s name, and had duty to advise his clients that they had no legal right to remain in the unit; further, Fla. R. Civ. P. 1.010 imposed on parties and attorneys a duty to construe and apply the rules to secure the just, speedy, and inexpensive determination of every action. Stratton v. 6000 Indian Creek, LLC, 95 So. 3d 334, 2012 Fla. App. LEXIS 11965 (Fla. 3rd DCA 2012).

712. Safe harbor provision in Fla. Stat. § 57.105(4) did not apply to a case because the safe harbor provision was substantive and did not apply retroactively, and the claims which were found to be frivolous by a trial court were originally filed before the safe harbor provision took effect. Bionetics Corp. v. Kenniasty, 69 So. 3d 943, 2011 Fla. LEXIS 338 (Fla. 2011), cert. denied, 565 U.S. 1100, 132 S. Ct. 848, 181 L. Ed. 2d 563, 2011 U.S. LEXIS 9008 (U.S. 2011).

713. Denial of appellant’s motion for sanctions under Fla. Stat. § 57.105(1), was error because, inter alia, a prior appellate decision denying sanctions had no bearing on whether the trial court may itself have imposed sanctions against a judgment creditor for persisting in trying to enforce an invalid judgment against appellant; appellant had the right to demonstrate on the merits that he was entitled to § 57.105(1) fees. Appellant’s failure to raise the issue of trial court fees under § 57.105(1) in the prior appeal did not bar his claim for such sanctions. Williams v. Cadlerock Joint Venture LP, 14 So. 3d 292, 2009 Fla. App. LEXIS 11251 (Fla. 4th DCA 2009).

714. Co-counsel complied with Fla. Stat. § 57.105(4)’s time requirements, having filed his motion with the trial court 32 days after it was served on the firm and its counsel. Further, the trial court’s determination that the firm and its attorney knew or should have known that their claims against the co-counsel for fraud, conspiracy to commit fraud, and tortious interference with contract were not supported by the material facts or the application of then-existing law to those material facts, and that the claims were not made in good faith, was supported by competent, substantial evidence. Montgomery v. Larmoyeux, 14 So. 3d 1067, 2009 Fla. App. LEXIS 6908 (Fla. 4th DCA 2009).

715. Trial court erred by awarding attorney fees to the former law partner because the partner did not comply with the time requirements of Fla. Stat. § 57.105; the statute clearly required that a motion seeking sanctions could not be filed within 21 days of service of the motion. The partner’s failure to comply with the mandatory requirements of § 57.105(4) did not constitute a procedural trap sprung on the unwary. Montgomery v. Larmoyeux, 14 So. 3d 1067, 2009 Fla. App. LEXIS 6908 (Fla. 4th DCA 2009).

716. Trial court erred in awarding a corporation $ 2,087 in costs allegedly incurred in defending a frivolous lawsuit was error because Fla. App. § 57.105 made no mention of costs. Ferdie v. Isaacson, 2009 Fla. App. LEXIS 7754 (Fla. 4th DCA 2009).

717. Order that a law firm pay 50 percent of attorneys’ fees in an underlying claim pursuant to Fla. Stat. § 57.105(1) was error because the trial court terminated the proceedings without hearing the law firm’s witness who was prepared to testify that the law firm had relied on its client’s representations in good faith when pursuing the underlying claim; further, the trial court’s order was insufficient because it did not include the required express finding as to the lack of good faith on the part of the law firm. Ferdie v. Isaacson, 2009 Fla. App. LEXIS 7754 (Fla. 4th DCA 2009).

718. Trial court erred by imposing sanctions on an attorney for misconduct in pursuing baseless litigation because the court was without authority under the doctrine of waiver to revisit the sanctions issue as the request for sanctions was initially denied before the appeal of the dismissal of the case, and, once the appellate court affirmed the dismissal of the case, the trial court was without authority to reconsider the sanction issue. Campbell v. State, 9 So. 3d 59, 2009 Fla. App. LEXIS 2724 (Fla. 1st DCA 2009).

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719. Trial court erred in awarding attorney’s fees to a corporation under Fla. § 57.105; while a corporation complied with the safe harbor notice requirements of § 57.105(4), a review of the allegations in the tortious interference with business relations claim filed against the corporation by the owners of a company stated a claim and were not frivolous. Kenniasty v. Bionetics Corp., 2009 Fla. App. LEXIS 1921 (Fla. 5th DCA 2009), sub. op., 10 So. 3d 1183, 2009 Fla. App. LEXIS 7463 (Fla. 5th DCA 2009).

720. Trial court erred in awarding attorney’s fees to a corporation under Fla. § 57.105 because, while suit was filed against the corporation prior to the amendment of the statute to include the safe harbor provision in § 57.105(4), as the motion for fees was filed after the amendment took effect, the safe harbor provision applied, and the corporation failed to provide the required notice of its intent to seek attorney’s fees related to claims of invasion of privacy and violation of the Procurement Integrity Act, 41 U.S.C.S. § 423. Kenniasty v. Bionetics Corp., 2009 Fla. App. LEXIS 1921 (Fla. 5th DCA 2009), sub. op., 10 So. 3d 1183, 2009 Fla. App. LEXIS 7463 (Fla. 5th DCA 2009).

721. Safe harbor provision in Fla. Stat. § 57.105 applies where a lawsuit is filed before July 1, 2002, but the motion for attorney’s fees is not filed until after this date. Kenniasty v. Bionetics Corp., 2009 Fla. App. LEXIS 1921 (Fla. 5th DCA 2009), sub. op., 10 So. 3d 1183, 2009 Fla. App. LEXIS 7463 (Fla. 5th DCA 2009).

722. Chapter 7 debtor was entitled under Fla. Stat. § 57.105(1) and 11 U.S.C.S. § 105(a) to recover attorneys’ fees he incurred to defend an adversary proceeding which a creditor filed against him, seeking a judgment denying his discharge under 11 U.S.C.S. § 727(a)(5). The creditor’s complaint lacked factual and legal merit and was filed to harass the debtor because he had not paid a judgment the creditor obtained 23 years before the debtor declared bankruptcy. DeLauro v. Porto (In re Porto), 2008 Bankr. LEXIS 3858 (Bankr. M.D. Fla. Sept. 23, 2008).

723. As both a buyer and her attorney knew or should have known that their claims against a seller based on an alleged breach of an oral contract to sell land were not supported by material facts, and there was no good faith attempt by the buyer to create new law, the trial court erred in not requiring the buyer and her attorney to pay equal shares of the seller’s attorney’s fees under Fla. Stat. § 57.105(1). Danziger v. Alternative Legal, Inc., 987 So. 2d 694, 2008 Fla. App. LEXIS 7197 (Fla. 4th DCA 2008).

724. Because defendant failed to comply with the requirements of Fla. Stat. § 57.105(4) (2005), the trial court erred in awarding attorney’s fees under Fla. Stat. § 57.105(5) (2005). Davidson v. Ramirez, 970 So. 2d 855, 2007 Fla. App. LEXIS 18122 (Fla. 3rd DCA 2007).

725. Trial court’s summary denial of a former employee’s Fla. Stat. § 57.105(1) motion seeking attorney’s fees after a suit against him was voluntarily dismissed was error because, to exercise its discretion, the trial court needed to have made an inquiry into what the losing party knew or should have known during the fact-establishment process, both before and after suit was filed. Hustad v. Architectural Studio, Inc., 958 So. 2d 569, 2007 Fla. App. LEXIS 9513 (Fla. 4th DCA 2007).

726. Safe harbor provision of Fla. Stat. § 57.105(4), which contained a 21-day notice provision, was a substantive change, did not have retroactive application, and could not have been applied to a father’s case against a corporation alleging discrimination; the appellate court deferred to the trial court’s evaluation of the evidence in finding that the father’s claim was frivolous and in awarding attorney’s fees and costs. Walker v. Cash Register Auto Ins. of Leon County, Inc., 946 So. 2d 66, 2006 Fla. App. LEXIS 21473 (Fla. 1st DCA 2006).

727. Trial court did not abuse its discretion in awarding attorney’s fees to a general contractor in a pedestrian’s negligence action because the evidence showed that the pedestrian’s attorney knew or should have known that the claim against the

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contractor was baseless. Yakavonis v. Dolphin Petroleum, Inc., 934 So. 2d 615, 2006 Fla. App. LEXIS 12394 (Fla. 4th DCA 2006).

Civil Procedure: Sanctions: Baseless Filings: Vexatious Litigants

728. Since compensatory sanctions could be bargained away, plaintiff seller had no claim to a compensatory award under Fed. R. Civ. P. 37(a)(5), Fla. Stat. § 57.105, 28 U.S.C.S. § 1927 after it settled all know or unknown claims or obligations related to the asserted claims against defendant buyer. Sure Fill & Seal, Inc. v. GFF, Inc., 2010 U.S. Dist. LEXIS 78906 (M.D. Fla. Aug. 6, 2010), aff'd, 411 Fed. Appx. 267, 2011 U.S. App. LEXIS 1889 (11th Cir. Fla. 2011).

Civil Procedure: Sanctions: Misconduct & Unethical Behavior: General Overview

729. Attorney was properly required to pay attorney’s fees to plaintiffs in an underlying action under the inequitable conduct doctrine due to his conduct in, inter alia, restating objections to discovery that the trial court had already overruled; the doctrine had not been rendered obsolete as Fla. Stat. § 57.105(4) provided the statute was supplemental to other sanctions. Rosenberg v. Gaballa, 1 So. 3d 1149, 2009 Fla. App. LEXIS 325 (Fla. 4th DCA 2009).

730. In a divorce proceeding, while the trial court properly awarded a wife her attorney’s fees as a sanction because the husband was not forthright with his financial affairs and failed to comply with discovery requests, the court lacked the authority to award attorney’s fees as a sanction to the wife’s fiance in separately-filed domestic violence injunction action. Ratigan v. Stone, 947 So. 2d 607, 2007 Fla. App. LEXIS 182 (Fla. 3rd DCA 2007).

731. Trial court erred in assessing fees against the corporation and attorney under Fla. Stat. § 57.105, on the ground that Florida law was well established against the position of the corporation and attorney in the case; the law on the point at issue was not decided in the district at issue until a ruling in a subsequent case. Global Heir & Asset Locators, Inc. v. First NLC Fin. Servs., LLC, 936 So. 2d 1216, 2006 Fla. App. LEXIS 15160 (Fla. 4th DCA 2006).

732. Trial court erred in assessing fees against the corporation and attorney under Fla. Stat. § 57.105 (2004), on the ground that Florida law was well established against the position of the corporation and attorney in the case; the law on the point at issue was not decided in the district at issue until a ruling in a subsequent case. Global Heir & Asset Locators, Inc. v. First NLC Fin. Servs., LLC, 936 So. 2d 1216, 2006 Fla. App. LEXIS 15160 (Fla. 4th DCA 2006).

733. Award of attorneys’ fees in favor plaintiff was authorized by Fla. Stat. § 57.105 where defense counsel suggested to the trial court that the appearance of new counsel at a hearing on a motion to dismiss for failure to state a claim was somehow improper and further suggested that the court had power to disregard the filing of an amended complaint on the day of the hearing where no responsive pleading had been filed. Forum v. Boca Burger, Inc., 788 So. 2d 1055, 2001 Fla. App. LEXIS 6945 (Fla. 4th DCA 2001).

Civil Procedure: Appeals: Appellate Jurisdiction: Final Judgment Rule

734. Because an award of attorney’s fees was to be treated as costs and the trial court’s reservation of jurisdiction to award costs did not affect the finality of the judgment on the merits, the failure to timely appeal the final judgment on the merits precluded raising matters concluded by that judgment in an appeal from the judgment awarding attorney’s fees. Grasland v. Taylor Woodrow Homes, Ltd., 460 So. 2d 940, 1984 Fla. App. LEXIS 16074 (Fla. 2nd DCA 1984).

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735. Appeal of a trial court’s final judgment did not deprive the trial court of jurisdiction to award attorney fees pursuant to Fla. Stat. § 57.105 as part of the final judgment in connection with a subsequent motion for rehearing because the motion was frivolous and had been filed solely for the purpose of delay. Ruby Mountain Constr. & Dev. Corp. v. Raymond, 409 So. 2d 525, 1982 Fla. App. LEXIS 19230 (Fla. 5th DCA 1982).

Civil Procedure: Appeals: Appellate Jurisdiction: Lower Court Jurisdiction

736. Trial court erred by imposing sanctions on an attorney for misconduct in pursuing baseless litigation because the court was without authority under the doctrine of waiver to revisit the sanctions issue as the request for sanctions was initially denied before the appeal of the dismissal of the case, and, once the appellate court affirmed the dismissal of the case, the trial court was without authority to reconsider the sanction issue. Campbell v. State, 9 So. 3d 59, 2009 Fla. App. LEXIS 2724 (Fla. 1st DCA 2009).

737. Substantial, competent evidence was presented to support a trial court’s order awarding attorney’s fees to a cable television company which challenged property taxes assessed by application of unit method of valuation where appraiser should have known that unit method had been declared unconstitutional by the time the case at bar went to trial; the trial court had jurisdiction to award the attorney’s fees even though an appeal of the final judgment was pending. Schultz v. Time Warner Entm't Co., 906 So. 2d 297, 2005 Fla. App. LEXIS 2683 (Fla. 5th DCA 2005).

Civil Procedure: Appeals: Appellate Jurisdiction: State Court Review

738. Petitioners’ attorney was equally liable for an award of appellate attorney’s fees to the respondent’s counsel because the attorney’s statements at oral argument claiming a lack of knowledge were unsupported by the record. Moreover, knowledge of an alleged conflict of interest was imputed through the petitioners’ original attorney because the petitioners told their original attorney that the respondent’s law firm previously represented them in their estate planning. Yang Enters. v. Georgalis, 988 So. 2d 1180, 2008 Fla. App. LEXIS 11865 (Fla. 1st DCA 2008).

739. Petitioners and their attorney were ordered to pay the respondent’s appellate attorney’s fees under Fla. Stat. § 57.105(1) because the petition for certiorari, following the denial of the petitioners’ motion to disqualify the respondent’s attorney, was not supported by any material facts or by an application of the law to those facts. Yang Enters. v. Georgalis, 988 So. 2d 1180, 2008 Fla. App. LEXIS 11865 (Fla. 1st DCA 2008).

Civil Procedure: Appeals: Costs & Attorney Fees

740. Because parties seeking appellate fees as a sanction pursuant to § 57.105, Fla. Stat., were required to proceed pursuant to Fla. R. App. P. 9.410(b), not Fla. R. App. P. 9.400(b), and defendant had not served its sanctions motion on plaintiffs within 30 days of the filing of plaintiffs' initial brief so as to give plaintiffs an opportunity to dismiss their appeal, as required by Rule 9.410(b), defendant was not entitled to appellate fees as a sanction. Jarrette Bay Invs. Corp. v. BankUnited, N.A., 207 So. 3d 345, 2016 Fla. App. LEXIS 17681 (Fla. 3rd DCA 2016).

741. Trial court erred in not including prejudgment interest in petitioners' appellate attorneys' fees award, as interest on the award accrued from the date the entitlement to attorney fees was fixed by the court, even if it had not yet determined even though the amount of the award; moreover, this section includes prejudgment interest as part of the award. Wells v. Halmac Dev., Inc., 184 So. 3d 620, 2016 Fla. App. LEXIS 1396 (Fla. 3rd DCA 2016).

742. As the trial court improperly failed to include prejudgment interest in petitioners' appellate attorneys' fees award, the total sum due was inaccurate, and thus the determined amount of post-judgment interest awarded was insufficient. Wells v. Halmac

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Dev., Inc., 184 So. 3d 620, 2016 Fla. App. LEXIS 1396 (Fla. 3rd DCA 2016).

743. Seller was entitled to appellate attorneys' fees against a buyer because the buyer's appeal was based on an argument the buyer previously made in a petition that was denied with prejudice, so the argument was not supported by applying existing law to the facts. Santiago v. Sunset Cove Invs., Inc., 198 So. 3d 658, 2015 Fla. App. LEXIS 17417 (Fla. 2nd DCA 2015).

744. When appellate attorneys' fees were awarded against a seller, the award could only be entered against the seller's counsel because the award was entered pursuant to Fla. Stat. § 57.105(1)(b). Santiago v. Sunset Cove Invs., Inc., 198 So. 3d 658, 2015 Fla. App. LEXIS 17417 (Fla. 2nd DCA 2015).

745. Attorney for a claimant was ordered to compensate a city, members of the city council, and a private investigation firm for appellate attorney fees and costs incurred by them because they were required to defend against the prosecution of a frivolous appeal of a trial court order, which awarded them a sum of money as a sanction for the claimant's and the attorney's fraud on the court. The attorney was liable for the attorney fees and costs of the appeal even though the attorney was not a named party to the appeal. Faddis v. City of Homestead, 2015 Fla. App. LEXIS 1790 (Feb. 11, 2015).

746. Appellant's motion seeking costs and attorney fees, apparently filed in an attempt to comply with the “safe harbor” requirements of this statute and Fla. R. App. P. 9.410, was premature because appellee had not yet filed a paper or asserted a defense or claim in the instant appeal that was “challenged” by appellant. Reznek v. Chase Home Fin., LLC, 2014 Fla. App. LEXIS 20023 (Dec. 10, 2014).

747. Upon the appellate court’s own initiative pursuant to Fla. R. App. P. 9.410(a), it properly awarded the doctor its appellate attorney fees as a sanction against counsel for the patient for filing a frivolous appeal counsel knew or should have known would not be supported by existing law, as proscribed by Fla. Stat. § 57.105(1)(b). Waddington v. Baptist Med. Ctr. of the Beaches, Inc., 78 So. 3d 114, 2012 Fla. App. LEXIS 1312 (Fla. 1st DCA 2012).

748. In an action challenging two proposed amendments to a county comprehensive growth management plan, intervenors pursued appellate review without any foundation in law or fact, and, therefore, the appeal was filed in violation of Fla. Stat. § 57.105(1), and sanctions were imposed against the intervenors and their counsel. Martin County Conservation Alliance v. Martin County, 73 So. 3d 856, 2011 Fla. App. LEXIS 17513 (Fla. 1st DCA 2011).

749. Because the record clearly demonstrated that the bank made the necessary filings within the 60-day period following the notice of lack of prosecution, the bank’s foreclosure case should not have been dismissed for lack of prosecution, and the borrowers’ counsel should have conceded error on this issue on appeal. Deutsche Bank Nat'l Trust Co. v. Basanta, 88 So. 3d 216, 2011 Fla. App. LEXIS 16502 (Fla. 3rd DCA 2011).

750. Attorneys’ fees and sanctions were warranted pursuant to Fla. Stat. § 57.105 and Fla. R. App. P. 9.410 where the debtors in a foreclosure action essentially fabricated a unilateral promissory note, purporting to change the bank into a borrower and the debtors into lenders, and filed motions, and scheduled a hearing without notifying the lender. JPMorgan Chase Bank, N.A. v. Hernandez, 99 So. 3d 508, 2011 Fla. App. LEXIS 9594 (Fla. 3rd DCA 2011).

751. Appellate court imposed sanctions against an appellee and sua sponte awarded appellate attorney’s fees to the appellants because, despite being given multiple opportunities to ethically concede error including a spirited oral argument session scheduled by the appellate court on its own motion, the appellee callously proceeded in blatant bad faith. Santini v. Cleveland

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Clinic, 65 So. 3d 22, 2011 Fla. App. LEXIS 6663 (Fla. 4th DCA 2011).

752. Because the commercial lease agreements in the case were entered into many years prior to October 1, 1988, the tenant not entitled to recover prevailing party attorneys’ fees on the appeal based on the contracts and Fla. Stat. § 57.105(7). First States Investors 3300, LLC v. Pheil, 52 So. 3d 845, 2011 Fla. App. LEXIS 1864 (Fla. 2nd DCA 2011).

753. Health maintenance organization (HMO) was entitled to appellate attorneys’ fees under Fla. Stat. § 57.105 because, inasmuch as the HMO had agreed to pay for the patient’s treatment at issue before the suit was filed, the true purpose of the patient’s suit against the HMO was not to enforce the HMO’s contract, but to obtain attorney’s fees; therefore, the patient’s argument on appeal that she was entitled to fees under Fla. Stat. § 641.28 lacked merit. Further, the patient tried to keep the fact that the HMO agreed to pay for her treatment before the suit was filed from the appellate court by failing to acknowledge the HMO’s agreement to pay for the treatment in her complaint or in her appellate brief. Long v. AvMed, Inc., 14 So. 3d 1264, 2009 Fla. App. LEXIS 9116 (Fla. 1st DCA 2009).

754. Petitioners’ attorney was equally liable for an award of appellate attorney’s fees to the respondent’s counsel because the attorney’s statements at oral argument claiming a lack of knowledge were unsupported by the record. Moreover, knowledge of an alleged conflict of interest was imputed through the petitioners’ original attorney because the petitioners told their original attorney that the respondent’s law firm previously represented them in their estate planning. Yang Enters. v. Georgalis, 988 So. 2d 1180, 2008 Fla. App. LEXIS 11865 (Fla. 1st DCA 2008).

755. Petitioners and their attorney were ordered to pay the respondent’s appellate attorney’s fees under Fla. Stat. § 57.105(1) because the petition for certiorari, following the denial of the petitioners’ motion to disqualify the respondent’s attorney, was not supported by any material facts or by an application of the law to those facts. Yang Enters. v. Georgalis, 988 So. 2d 1180, 2008 Fla. App. LEXIS 11865 (Fla. 1st DCA 2008).

756. Where a former husband appealed the trial court’s ruling that certain real property was non-marital property belonging solely to his former wife, although the wife prevailed on appeal, she was not entitled to appellate attorney’s fees under Fla. Stat. § 57.105 because, inter alia, the husband’s appeal contained justiciable issues. Johnson v. Johnson, 979 So. 2d 350, 2008 Fla. App. LEXIS 5265 (Fla. 5th DCA 2008).

757. Appellate attorney’s fees were imposed on a student and his counsel pursuant to, inter alia, Fla. Stat. § 57.105 and Fla. Stat. § 120.595(6) because, contrary to the student’s claims, an administrative law judge’s ruling disqualifying his counsel was proper, it was unnecessary for his counsel to conduct himself as he did to preserve issues for appeal, and his counsel’s assertion that he behaved properly was unsupported; all of counsel’s arguments on appeal lacked merit. Gopman v. Dep't of Educ., 974 So. 2d 1208, 2008 Fla. App. LEXIS 2459 (Fla. 1st DCA 2008).

758. Because the insured’s counsel knew or should have known that his proposed final judgment was not supported by existing law when he presented it for entry to the trial court, and his defense of the amount of the final judgment in the appeal was without merit, the insurer’s motion for appellate attorneys’ fees pursuant to Fla. Stat. § 57.105 was granted. Nationwide Mut. Life Ins. Co. v. Voigt, 971 So. 2d 239, 2008 Fla. App. LEXIS 64 (Fla. 2nd DCA 2008).

759. Where an attorney alleged that a newspaper published defamatory statements in articles relating to the attorney’s arrest and prosecution and the newspaper was entitled to a qualified privilege, the newspaper was not entitled to attorney fees, because the attorney’s complaint and appeal were not completely frivolous. Alan v. Palm Beach Newspapers, Inc., 973 So. 2d 1177, 2008 Fla. App. LEXIS 13 (Fla. 4th DCA 2008).

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760. Because buyer’s complaint failed to state a cause of action for specific performance, the arguments raised by the buyer’s attorney on appeal were completely unsupported by the application of the law to the facts, and the attorney made no effort to distinguish the applicable law or, in good faith, to argue for its extension, modification, or reversal, the seller was entitled to appellate attorney fees under Fla. Stat. § 57.105(1). de Vaux v. Westwood Baptist Church, 953 So. 2d 677, 2007 Fla. App. LEXIS 4907 (Fla. 1st DCA 2007).

761. On appeal from an order granting summary judgment, and upon an order to show cause, because a litigant’s attorneys failed to offer any good reason why attorney’s fees under Fla. Stat. § 57.105 should not be awarded, the appeals court remanded the matter to the trial court for a determination of said fees. Thomas v. Patton, 939 So. 2d 139, 2006 Fla. App. LEXIS 15403 (Fla. 1st DCA 2006).

762. Trial court’s award of attorney’s fees for an appeal under Fla. Stat. § 57.105 was reversed as it was improper to award attorney’s fees for appeals in the absence of the appellate court’s authorization. Zweibach v. Gordimer, 884 So. 2d 244, 2004 Fla. App. LEXIS 11714 (Fla. 2nd DCA 2004).

763. Award of appellate attorney’s fees against appellants was appropriate because appellants’ amended notice of appeal asserted that the order identified as the order on appeal was an appealable final order; however, appellants knew or should have known, when they presented this claim to the court, that it was factually and legally without merit where appellants argued in response to the motion to dismiss that the order was nonfinal when it was originally entered. Churchville v. Ocean Grove R.V. Sales, Inc., 876 So. 2d 649, 2004 Fla. App. LEXIS 8901 (Fla. 1st DCA 2004).

764. Award of fees in favor of the wife was proper where the husband’s attack on the alimony statutes was irrelevant, frivolous, and brought by counsel only to advance the cause of an unrelated client. Barna v. Barna, 850 So. 2d 603, 2003 Fla. App. LEXIS 10222 (Fla. 4th DCA 2003), cert. denied, 543 U.S. 816, 125 S. Ct. 53, 160 L. Ed. 2d 22, 2004 U.S. LEXIS 5615 (U.S. 2004).

765. Where attorney who previously worked for defendant insurer filed numerous lawsuits against insurer allegedly relating to same litigation upon which she served as insurer’s counsel, trial court order granting attoney’s fees to her was improper, since insurer should have been granted certiorari to first determine whether attorney should be disqualified from lawsuits. Allstate Ins. Co. v. Titusville Total Health Care, 848 So. 2d 1166, 2003 Fla. App. LEXIS 6246 (Fla. 5th DCA 2003).

766. In product liability action, the appellate court awarded the immediate payment of the attorney’s fees in defending an appeal to the parents of an injured child when a corporation made a frivolous appeal of the trial court’s finding that personal jurisdiction existed in Florida as to the corporation. Bridgestone/Firestone, Inc. v. Herron, 828 So. 2d 414, 2002 Fla. App. LEXIS 14298 (Fla. 1st DCA 2002).

767. Attorney fees on appeal were awarded under Fla. Stat. § 57.105 because the appeal was made necessary by frivolous claims brought before the trial court. The appeal would have been completely unnecessary had appellees merely recognized the correct state of law and brought it to the trial court’s attention. Freedom Commerce Ctr. Venture v. Ranson, 823 So. 2d 817, 2002 Fla. App. LEXIS 10117 (Fla. 1st DCA 2002).

768. Where the insured’s action against the insurer on the policy was dismissed by the trial court based upon the insured’s numerous fraudulent misrepresentations in the policy application and to the insurer during its investigation of the alleged loss, the insured’s appeal of the dismissal was frivolous under Fla. Stat. § 57.105 and justified an award of attorney’s fees to the insurer; such attorney’s fees would be borne equally by the losing party and the losing party’s counsel unless counsel had acted in good faith, based on representations of his client. Marrone v. State Farm Fire & Casualty Ins. Co., 664 So. 2d 972, 1995

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Fla. App. LEXIS 5745 (Fla. 4th DCA 1995).

769. Where there is a complete absence of any justiciable issue of law or fact presented in an appeal, the appellate court may assess attorney’s fees in favor of appellee against appellant pursuant to Fla. Stat. § 57.105(1). In re Estate of Mayers, 627 So. 2d 103, 1993 Fla. App. LEXIS 11761 (Fla. 4th DCA 1993).

770. Denial of award of attorney fees following an arbitration in a breach of contract claim was reversed and remanded for consideration of further evidence where there was no transcript of the arbitration proceedings, no evidence in the record before the trial court as to why a party prevailed on the merits in the arbitration other than the contract in evidence, which was itself the only basis for resolving the dispute, including attorney fees, and the speculative arguments of one party’s attorney to the trial court constituted the only record basis for concluding that the arbitrators found a breach of an undefined oral, rather than the written, contract. Lanahan Lumber Co. v. McDevitt & Street Co., 611 So. 2d 591, 1993 Fla. App. LEXIS 4 (Fla. 4th DCA 1993).

771. Appellate court denied petitions for rehearing filed by appellees that sought review of the award of attorney’s fees pursuant to Fla. Stat. § 57.105 to appellant, which had prevailed on the merits of the appeal, because appellees never responded to appellant’s motion for assessment of attorney’s fees and thus appellees failed to preserve their arguments against the fee assessment properly. Homestead Ins. Co. v. Poole, Masters & Goldstein, C.P.A., P.A., 1992 Fla. App. LEXIS 3553 (Fla. 4th DCA 1992).

772. The appellate court erred in awarding attorney’s fees under Fla. Stat. § 57.105 against parties which did nothing more than defend a summary judgment in their favor because the judgment of the trial court carried with it a presumption of correctness, and the defense of that judgment necessarily involved the advancement of justiciable issues. McNee v. Biz, 473 So. 2d 5, 1985 Fla. App. LEXIS 15097 (Fla. 4th DCA 1985).

773. Attorney, who was awarded summary judgment in the trial court in the amount of $ 2,500, an amount which the client admittedly owed the attorney, was entitled to attorney’s fees on appeal pursuant to Fla. Stat. § 57.105 on the grounds that the client failed to raise a single justiciable issue and was stubbornly litigious. Hatcher v. Miller, 427 So. 2d 1039, 1983 Fla. App. LEXIS 18777 (Fla. 1st DCA 1983).

774. Where the sole issue raised on appeal was neither included in the pleadings nor presented as a contested issue in the trial, appellee was entitled to an award of attorneys’ fees because appellant failed to raise a justiciable issue of law or fact. Ferguson v. Estate of Ferguson, 410 So. 2d 617, 1982 Fla. App. LEXIS 19372 (Fla. 4th DCA 1982).

Civil Procedure: Appeals: Frivolous Appeals

775. Appellate court, upon its own initiative, sanctioned an attorney for filing a frivolous appeal because the attorney admitted to appearing for a child who was already represented without contacting the child's counsel of record, and knew the matter of the child's emancipation was fully litigated and ruled upon by the trial court nearly a year before; the attorney also failed to timely respond to the appellate court's show-cause order, or ask for leave to file his response sixteen days late. In the Interest of A.T.H., 180 So. 3d 1212, 2015 Fla. App. LEXIS 18646 (Fla. 1st DCA 2015).

776. Insurer that issued payment and performance bonds was entitled to attorney's fees it incurred in defending a subcontractor's baseless assertions contained in a section of the subcontractor's appellate brief; the allegations made in the section were without a good faith basis, lacking any factual or legal support. Aspen Air Conditioning, Inc. v. Safeco Ins. Co. of

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Am., 170 So. 3d 892, 2015 Fla. App. LEXIS 11041 (Fla. 3rd DCA 2015).

777. Attorney for a claimant was ordered to compensate a city, members of the city council, and a private investigation firm for appellate attorney fees and costs incurred by them because they were required to defend against the prosecution of a frivolous appeal of a trial court order, which awarded them a sum of money as a sanction for the claimant's and the attorney's fraud on the court. The attorney was liable for the attorney fees and costs of the appeal even though the attorney was not a named party to the appeal. Faddis v. City of Homestead, 2015 Fla. App. LEXIS 1790 (Feb. 11, 2015).

778. Claimant and her counsel were ordered to show cause why sanctions should not have been entered against them under Fla. Stat. § 57.105(1), (2), and Fla. R. App. P. 9.410(a) because the claimant’s argument that, as the Judge of Compensation Claims (JCC) could have modified a November 2009 order, there was a fact issue that precluded the employer’s statute of limitations defense, was frivolous; the claimant never filed a motion for modification of the order, her argument that the November, 2009 order could have been modified was theoretical and had no meaningful applicability, and, even if the claimant’s arguments to the JCC in December 2011 constituted an application for modification of the 2009 order, such a request would have been untimely under Fla. Stat. § 440.28. Even if the claimant had timely filed a petition for modification of the 2009 order, her argument that the 2009 order could have been “modified” under the facts presented was misguided, ill-defined, and woefully incomplete. Miranda v. Bridge, 112 So. 3d 500, 2012 Fla. App. LEXIS 16704 (Fla. 1st DCA 2012).

779. Upon the appellate court’s own initiative pursuant to Fla. R. App. P. 9.410(a), it properly awarded the doctor its appellate attorney fees as a sanction against counsel for the patient for filing a frivolous appeal counsel knew or should have known would not be supported by existing law, as proscribed by Fla. Stat. § 57.105(1)(b). Waddington v. Baptist Med. Ctr. of the Beaches, Inc., 78 So. 3d 114, 2012 Fla. App. LEXIS 1312 (Fla. 1st DCA 2012).

780. In an action challenging two proposed amendments to a county comprehensive growth management plan, intervenors pursued appellate review without any foundation in law or fact, and, therefore, the appeal was filed in violation of Fla. Stat. § 57.105(1), and sanctions were imposed against the intervenors and their counsel. Martin County Conservation Alliance v. Martin County, 73 So. 3d 856, 2011 Fla. App. LEXIS 17513 (Fla. 1st DCA 2011).

781. Attorneys’ fees and sanctions were warranted pursuant to Fla. Stat. § 57.105 and Fla. R. App. P. 9.410 where the debtors in a foreclosure action essentially fabricated a unilateral promissory note, purporting to change the bank into a borrower and the debtors into lenders, and filed motions, and scheduled a hearing without notifying the lender. JPMorgan Chase Bank, N.A. v. Hernandez, 99 So. 3d 508, 2011 Fla. App. LEXIS 9594 (Fla. 3rd DCA 2011).

782. Appellate court imposed sanctions against an appellee and sua sponte awarded appellate attorney’s fees to the appellants because, despite being given multiple opportunities to ethically concede error including a spirited oral argument session scheduled by the appellate court on its own motion, the appellee callously proceeded in blatant bad faith. Santini v. Cleveland Clinic, 65 So. 3d 22, 2011 Fla. App. LEXIS 6663 (Fla. 4th DCA 2011).

783. Health maintenance organization (HMO) was entitled to appellate attorneys’ fees under Fla. Stat. § 57.105 because, inasmuch as the HMO had agreed to pay for the patient’s treatment at issue before the suit was filed, the true purpose of the patient’s suit against the HMO was not to enforce the HMO’s contract, but to obtain attorney’s fees; therefore, the patient’s argument on appeal that she was entitled to fees under Fla. Stat. § 641.28 lacked merit. Further, the patient tried to keep the fact that the HMO agreed to pay for her treatment before the suit was filed from the appellate court by failing to acknowledge the HMO’s agreement to pay for the treatment in her complaint or in her appellate brief. Long v. AvMed, Inc., 14 So. 3d 1264, 2009 Fla. App. LEXIS 9116 (Fla. 1st DCA 2009).

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784. Appellate attorney’s fees were imposed on a student and his counsel pursuant to, inter alia, Fla. Stat. § 57.105 and Fla. Stat. § 120.595(6) because, contrary to the student’s claims, an administrative law judge’s ruling disqualifying his counsel was proper, it was unnecessary for his counsel to conduct himself as he did to preserve issues for appeal, and his counsel’s assertion that he behaved properly was unsupported; all of counsel’s arguments on appeal lacked merit. Gopman v. Dep't of Educ., 974 So. 2d 1208, 2008 Fla. App. LEXIS 2459 (Fla. 1st DCA 2008).

785. Because a circuit court’s order affirming an award of attorney’s fees under Fla. Stat. § 627.428 and using a 1.5 multiplier departed from the essential requirements of the law, the award could not be sustained under Fla. Stat. § 57.105 as a sanction for pursuing a frivolous appeal; therefore, the insurer was entitled to certiorari relief. United Auto. Ins. Co. v. Miami Med. Group, Inc., 935 So. 2d 41, 2006 Fla. App. LEXIS 11963 (Fla. 3rd DCA 2006).

786. Award of fees in favor of the wife was proper where the husband’s attack on the alimony statutes was irrelevant, frivolous, and brought by counsel only to advance the cause of an unrelated client. Barna v. Barna, 850 So. 2d 603, 2003 Fla. App. LEXIS 10222 (Fla. 4th DCA 2003), cert. denied, 543 U.S. 816, 125 S. Ct. 53, 160 L. Ed. 2d 22, 2004 U.S. LEXIS 5615 (U.S. 2004).

787. As the order awarding appellate attorney’s fees was based upon the circuit court appellate panel’s erroneous assumption that the appellees had secured a final summary judgment by virtue of the order granting summary judgment, appellant’s request that the appellate panel revisit this order was addressed to the panel’s sound discretion and could not be deemed frivolous; imposing attorney’s fees against the appellant was thus error. Lidsky Vaccaro & Montes, P.A. v. Morejon, 813 So. 2d 146, 2002 Fla. App. LEXIS 2981 (Fla. 3rd DCA 2002).

788. The trial court correctly assessed attorney fees against individuals, pursuant to Fla. Stat. § 57.105, for filing a frivolous appeal when it was clear that the position asserted by the individuals on appeal were devoid of merit and not supported by the overwhelming evidence established through nine years of litigation. Visoly v. Security Pac. Credit Corp., 768 So. 2d 482, 2000 Fla. App. LEXIS 10508 (Fla. 3rd DCA 2000).

789. As a prerequisite to an award of attorney’s fees under Fla. Stat. § 57.105, a court must find a complete absence of a justiciable issue of either law or fact raised by the losing party, and a court’s conclusion that there is a total lack of a justiciable issue is appropriate where the attempt to create a controversy is frivolous. The definition of “frivolous appeal” is the most analogous to a definition of the term “frivolous” for this determination. Simkins Indus. v. Lawyers Title Ins. Corp., 696 So. 2d 384, 1997 Fla. App. LEXIS 5563 (Fla. 3rd DCA 1997).

790. In an appeal from a summary judgment in which uninsured motorist coverage was found not to apply where insured’s vehicle was stolen after he was murdered, as the connection between decedent insured and the theft of his vehicle clearly was too tenuous to provide such coverage, appellate costs and attorney’s fees were awarded to appellee pursuant to Fla. Stat. § 57.105, where the court sua sponte raised the issue of a frivolous appeal and determined that the appeal was so lacking in merit as to be frivolous on its face. Brahmbhatt v. Allstate Indem. Co., 655 So. 2d 1264, 1995 Fla. App. LEXIS 5748 (Fla. 4th DCA 1995).

791. Where the insured’s action against the insurer on the policy was dismissed by the trial court based upon the insured’s numerous fraudulent misrepresentations in the policy application and to the insurer during its investigation of the alleged loss, the insured’s appeal of the dismissal was frivolous under Fla. Stat. § 57.105 and justified an award of attorney’s fees to the insurer; such attorney’s fees would be borne equally by the losing party and the losing party’s counsel unless counsel had acted in good faith, based on representations of his client. Marrone v. State Farm Fire & Casualty Ins. Co., 664 So. 2d 972, 1995 Fla. App. LEXIS 5745 (Fla. 4th DCA 1995).

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792. Where issues raised in a motion for certiorari concerned matters arising after the amended complaint was filed, challenging the trial court’s attempt to schedule pretrial proceedings and to set the case for trial issues raised against public entities which were neither parties to the appeal nor parties to any action then pending below, the court found the motion to be totally frivolous within the purview of Fla. Stat. § 57.105 and Fla. Stat. § 59.46, and granted the motion for an award of attorney fees and costs. People against People against Tax Revenue Mismanagement, Inc. v. Leon County Canvassing Bd., 573 So. 2d 31, 1990 Fla. App. LEXIS 9659 (Fla. 1st DCA 1990).

793. In order to properly award attorney fees pursuant to Fla. Stat. § 57.105, it is necessary to find that the entire action, not merely a portion thereof, was devoid of merit both as to law and fact. Renfro v. Dodge, 520 So. 2d 690, 1988 Fla. App. LEXIS 779 (Fla. 4th DCA 1988).

794. The appellate court affirmed the trial court’s judgment awarding the husband and wife damages for the insurer’s failure to secure appropriate fire insurance coverage and assessed the insurer a $2,500 attorney fee under Fla. Stat. § 57.105 because the insurer’s appeal was patently frivolous. National Union Fire Ins. Co. v. Gelfand, 477 So. 2d 28, 1985 Fla. App. LEXIS 16331 (Fla. 3rd DCA 1985).

795. The appellate court erred in awarding attorney’s fees under Fla. Stat. § 57.105 against parties who did nothing more than defend a summary judgment in their favor because the judgment of the trial court carried with it a presumption of correctness, and the defense of that judgment necessarily involved the advancement of justiciable issues. McNee v. Biz, 473 So. 2d 5, 1985 Fla. App. LEXIS 15097 (Fla. 4th DCA 1985).

796. An attorney fee award under Fla. Stat. § 57.105 was affirmed where the trial court determined, on the record, that an earlier appeal had no justiciable issues and that on appeal a party was attempting to relitigate in state court issues already decided adversely in federal court. O'Brien v. Brickell Townhouse, Inc., 457 So. 2d 1123, 1984 Fla. App. LEXIS 15563 (Fla. 3rd DCA 1984).

Civil Procedure: Appeals: Rehearings

797. In an eviction action between a landlord and a tenant, where the trial court misplaced its reliance on the Third District Court of Appeals’ summary denial of a tenant’s petition for writ of certiorari, the trial court erred when it denied the tenant’s motion for trial attorney’s fees; but, the appellate division had jurisdiction, and acted within its authority, when it summarily denied the tenant’s motion for appellate attorney’s fees, and reconsideration on manifest injustice grounds was unwarranted. Business Success Group, Inc. v. Argus Trade Realty Inv., Inc., 898 So. 2d 970, 2005 Fla. App. LEXIS 2059 (Fla. 3rd DCA 2005).

Civil Procedure: Appeals: Reviewability: General Overview

798. Pursuant to Fla. Stat. § 57.105, an appellate respondent was entitled to a reasonable attorney’s fee where the court found the petitioner’s petition moot as to one issue and premature as to another, making the suit devoid of a justiciable issue of either law or fact. Cicenia v. Mitey Mite Race Tracks, 415 So. 2d 128, 1982 Fla. App. LEXIS 20801 (Fla. 4th DCA 1982).

Civil Procedure: Appeals: Reviewability: Notice of Appeal

799. Defendant’s failure to serve the notice of appeal and initial brief on the law firm that first represented plaintiff was fatal to her claim for attorney’s fees because after her claim against it was initially denied, due process required defendant to give notice to the law firm of her effort to overturn the order, which she failed to do; it was insufficient to serve the notice of appeal

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and brief on the former client. Alvarez, Armas & Borron, P.A. v. Heitman, 770 So. 2d 208, 2000 Fla. App. LEXIS 13516 (Fla. 3rd DCA 2000).

Civil Procedure: Appeals: Reviewability: Preservation for Review

800. Where a second corporation did not allocate the issues or show that they were so intertwined as to preclude allocation, its claims for attorney’s fees were unsupported; the first corporation did not preserve an objection to fees in a prior appeal. Lubkey v. Compuvac Sys., 857 So. 2d 966, 2003 Fla. App. LEXIS 15998 (Fla. 2nd DCA 2003).

Civil Procedure: Appeals: Standards of Review: Abuse of Discretion

801. Trial court abused its discretion by awarding plaintiffs costs under Fla. Stat. § 57.105, because the statute did not provide a mechanism for recovering costs. Pronman v. Styles, 2015 Fla. App. LEXIS 3037 (Mar. 4, 2015).

802. Trial court did not abuse its discretion by awarding plaintiffs attorney fees under Fla. Stat. § 57.105, because defendants' motion to dismiss objecting to the court's jurisdiction and venue was not supported by the facts, and defendants and their counsel knew or should have known that to be the case at the time the defense was raised. Pronman v. Styles, 2015 Fla. App. LEXIS 3037 (Mar. 4, 2015).

803. Trial court abused its discretion in awarding attorney’s fees to the owner of a diamond ring In a jeweler’s defamation action; the express malice needed to overcome the owner’s qualified privilege to make a police report accusing the jeweler of theft could be inferred from the unreasonableness of making the report when the owner was aware that she did not know if her accusation that the jeweler had replaced diamonds in the ring with artificial stones was true and the further inference that the owner wanted to harm the jeweler by getting the police involved. Asinmaz v. Semrau, 42 So. 3d 955, 2010 Fla. App. LEXIS 12725 (Fla. 4th DCA 2010).

Civil Rights Law: Practice & Procedure: Costs & Attorney Fees: Statutory Attorney Fee Awards

804. Employee did not have to comply with the pre-suit procedures set forth in the Florida Civil Rights Act, Fla. Stat. § 760.01 et seq., because the allegations in the employee’s complaint of negligent retention and supervision, vicarious liability, and battery, based upon the owner of the employer allegedly touching the employee in an unwanted sexual manner, stood on their own under common law. Therefore, the trial court erred pursuant to Fla. Stat. § 57.105(1) in its grant of attorney’s fees and costs to the employer and its owner upon the improper dismissal of the employee’s complaint. Gerber v. Vincent's Men's Hairstyling, Inc., 57 So. 3d 935, 2011 Fla. App. LEXIS 4354 (Fla. 4th DCA 2011).

Constitutional Law: Separation of Powers

805. Because an award of attorney’s fees is a matter of substantive law properly under the aegis of the legislature, Fla. Stat. § 57.105 is not an unconstitutional impingement of the court’s procedural rulemaking authority under Fla. Const. art. V, § 2. Whitten v. Progressive Casualty Ins. Co., 410 So. 2d 501, 1982 Fla. LEXIS 2356 (Fla. 1982), overruled in part, Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145, 1985 Fla. LEXIS 3238 (Fla. 1985), overruled in part as stated in Carnival Leisure Indus. v. Holzman, 660 So. 2d 410, 1995 Fla. App. LEXIS 9909 (Fla. 4th DCA 1995), superseded by statute as stated in McPherson v. Bittner, 126 So. 3d 1230, 2012 Fla. App. LEXIS 18499 (Fla. 4th DCA 2012).

Constitutional Law: Bill of Rights: Fundamental Freedoms: Freedom of Speech: Defamation: General Overview

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806. Individual was entitled to recover attorney’s fees from an animal control director who filed a defamation suit and dismissed the complaint where the suit was based on the individual’s writing of a letter critical of the animal control director to a county commissioner after a great deal of publicity surrounding the animal control director’s declaration that a dog was dangerous and was to be euthanized; the animal control director was a public official and the individual’s letter concerning official acts on a public matter were qualifiedly privileged, non-actionable opinion that was constitutionally protected. Demby v. English, 667 So. 2d 350, 1995 Fla. App. LEXIS 11309 (Fla. 1st DCA 1995).

Contracts Law: Breach: Causes of Action: General Overview

807. In an action for breach of a lease agreement, an award of attorney fees pursuant to Fla. Stat. § 57.105(2) was affirmed because the request was based on the contract, was well pleaded in response to the complaint, and the adverse party had notice of the request for attorneys fees. Tri-County Dev. Group, Inc. v. C.P.T., Inc., 740 So. 2d 573, 1999 Fla. App. LEXIS 9292 (Fla. 4th DCA 1999).

808. Denial of award of attorney fees following an arbitration in a breach of contract claim was reversed and remanded for consideration of further evidence where there was no transcript of the arbitration proceedings, no evidence in the record before the trial court as to why a party prevailed on the merits in the arbitration other than the contract in evidence, which was itself the only basis for resolving the dispute, including attorney fees, and the speculative arguments of one party’s attorney to the trial court constituted the only record basis for concluding that the arbitrators found a breach of an undefined oral, rather than the written, contract. Lanahan Lumber Co. v. McDevitt & Street Co., 611 So. 2d 591, 1993 Fla. App. LEXIS 4 (Fla. 4th DCA 1993).

Contracts Law: Contract Conditions & Provisions

809. Language of the final judgment regarding setoff of the company’s fees and costs against the note clearly contravened the parties’ express intent on that issue. The trial court could not rewrite the contract. SP Healthcare Holdings, LLC v. Surgery Ctr. Holdings, LLC, 208 So. 3d 775, 2016 Fla. App. LEXIS 18212 (Fla. 2nd DCA 2016).

810. Where lawsuits between a franchiser and its franchisee did not concern the collection of unpaid rents, pursuant to the franchise agreement, attorney’s fees pursuant to Fla. Stat. ch. 105(6) were not recoverable. Subway Rests., Inc. v. Thomas, 860 So. 2d 462, 2003 Fla. App. LEXIS 16194 (Fla. 4th DCA 2003).

Contracts Law: Contract Conditions & Provisions: General Overview

811. Where plaintiff voluntarily dismissed her suit against defendants, a corporation and individuals, alleging breaches of non-compete contracts, the trial court erred in awarding the corporation attorney fees based on provisions in plaintiff's non-compete contracts with the individuals, because the corporation was not a party to those contracts. Shirley's Pers. Care Servs. of Okeechobee, Inc. v. Boswell, 165 So. 3d 824, 2015 Fla. App. LEXIS 8470 (Fla. 4th DCA 2015).

Contracts Law: Contract Interpretation: General Overview

812. Where one who was not a party to the condominium purchase and sale contract, which provided that the prevailing party in any arbitration or litigation arising out of the contract should be entitled to recover attorney’s fees, made an aborted attempt to become a party plaintiff in the lawsuit, the amount of fees awarded against him should be limited to that amount of time attributable to his attempt. Kelly v. Tworoger, 705 So. 2d 670, 1998 Fla. App. LEXIS 616 (Fla. 4th DCA 1998).

Contracts Law: Debtor & Creditor Relations

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813. Award of attorney’s fees to a lawyer and a law firm pursuant to Fla. Stat. § 57.105 was error because dismissal of a counterclaim alleging a Florida Consumer Collection Protection Act violation was improper; there was no suggestion in Fla. Stat. § 559.55(1) that a debt or consumer debt arose only after there had been an extension of credit. Under the applicable statute, no extension of credit was required. Morgan v. Wilkins, 74 So. 3d 179, 2011 Fla. App. LEXIS 18125 (Fla. 1st DCA 2011).

Contracts Law: Defenses: Public Policy Violations

814. To determine who is the prevailing party for purposes of an award of attorney’s fees, the trial judge must determine from the record which party has in fact prevailed on the significant issues tried before the court. This “significant issue” test cannot be contractually modified. Port-A-Weld, Inc. v. Padula & Wadsworth Constr., Inc., 984 So. 2d 564, 2008 Fla. App. LEXIS 7224 (Fla. 4th DCA 2008).

815. As a clause in a contract between a subcontractor and a general contractor, stating that a party to a lawsuit would not be deemed the “prevailing party” for purposes of an award of attorney’s fees if its recovery was less than 75 percent of its claim, violated the mutuality principle of Fla. Stat. § 57.105(7) and public policy, it was unenforceable. Port-A-Weld, Inc. v. Padula & Wadsworth Constr., Inc., 984 So. 2d 564, 2008 Fla. App. LEXIS 7224 (Fla. 4th DCA 2008).

Contracts Law: Remedies

816. Trial court erred in awarding attorney's fees to homeowners under the Amended and Restated Declaration of Covenants and Restrictions (ARD) and this statute because the court had ruled that the homeowners were not parties to the ARD. Sand Lake Hills Homeowners Ass'n v. Busch, 210 So. 3d 706, 2017 Fla. App. LEXIS 568 (Fla. 5th DCA 2017).

Contracts Law: Remedies: General Overview

817. Where a lower court found that no contract existed between corporate entities, it was error to award attorney fees to the prevailing party under Fla. Stat. § 57.105 based upon provision in contract that provided for attorney fees to prevailing party in event of litigation. County Waste, Inc. v. Public Storage Management, Inc., 582 So. 2d 87, 1991 Fla. App. LEXIS 5884 (Fla. 3rd DCA 1991).

Contracts Law: Remedies: Compensatory Damages: General Overview

818. In an action for breach of a lease agreement, an award of attorney fees pursuant to Fla. Stat. § 57.105(2) was affirmed because the request was based on the contract, was well pleaded in response to the complaint, and the adverse party had notice of the request for attorneys fees. Tri-County Dev. Group, Inc. v. C.P.T., Inc., 740 So. 2d 573, 1999 Fla. App. LEXIS 9292 (Fla. 4th DCA 1999).

Contracts Law: Secured Transactions: Perfection & Priority: Priority: Liens: Attorneys' Liens

819. Attorney was without authority to seek any relief on the client’s behalf because, by the time the foreclosure action was dismissed and the motion for attorney fees filed, the attorney no longer represented the client. Because the attorney failed to timely seek a charging lien, he lost any opportunity to seek relief for attorney fees on his own behalf. Cacho v. Bank of N.Y. Mellon, 124 So. 3d 943, 2013 Fla. App. LEXIS 15207 (Fla. 3rd DCA 2013).

Contracts Law: Third Parties: Beneficiaries: General Overview

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820. Seller was not entitled to recover its attorney’s fees against the second broker as an intended third-party beneficiary pursuant to Fla. Stat. § 57.105(7) because a party was a third-party beneficiary of a contract only if both parties to the contract expressed an intent to primarily and directly benefit the third party or a class of persons to which that party claimed to belong. The contract between the seller and the first broker did not express an intent to primarily and directly benefit the second broker since the contract merely mentioned that the first broker could co-broker the listing; therefore, the second broker was not an intended third-party beneficiary of that contract and accordingly, the second broker was not required to pay the seller’s attorney’s fees under the prevailing party provision of the contract. Land & Sea Petroleum, Inc. v. Business Specialists, Inc., 53 So. 3d 348, 2011 Fla. App. LEXIS 216 (Fla. 4th DCA 2011).

Contracts Law: Types of Contracts: Bilateral Contracts

821. Shopping plaza association was entitled to attorney fees after a shopping plaza tenant voluntarily dismissed a suit against the association, as declaration the parties signed provided for attorney fees to the prevailing party in a suit. Fla. Stat. § 57.105(5) makes a unilateral contract clause for prevailing party attorney fees bilateral in effect. Holiday Square Owners Ass'n v. Tsetsenis, 820 So. 2d 450, 2002 Fla. App. LEXIS 9766 (Fla. 5th DCA 2002).

Contracts Law: Types of Contracts: Guaranty Contracts

822. As a guaranty, read in conjunction with a note, contemplated liability to the note’s holder for its attorney’s fees if it prevailed, the guarantors, as the prevailing parties in a guaranty lawsuit brought against them by an assignee of the note, were entitled to reciprocal attorney’s fees under Fla. Stat. § 57.105(7). Riesterer v. Cadle Co. II, 981 So. 2d 644, 2008 Fla. App. LEXIS 7192 (Fla. 2nd DCA 2008).

Contracts Law: Types of Contracts: Unilateral Contracts: General Overview

823. Shopping plaza association was entitled to attorney fees after a shopping plaza tenant voluntarily dismissed a suit against the association, as declaration the parties signed provided for attorney fees to the prevailing party in a suit. Fla. Stat. § 57.105(5) makes a unilateral contract clause for prevailing party attorney fees bilateral in effect. Holiday Square Owners Ass'n v. Tsetsenis, 820 So. 2d 450, 2002 Fla. App. LEXIS 9766 (Fla. 5th DCA 2002).

Criminal Law & Procedure: Criminal Offenses: Racketeering: Racketeer Influenced & Corrupt Organizations: General Overview

824. Legislature’s clear intent in wording Fla. Stat. § 772.104 of the Florida Civil Remedies for Criminal Practices Act, Fla. Stat. § 772.101 et seq., was to discourage RICO claims lacking either legal or factual substance by setting a less stringent standard for a fee award than the bad faith standard of Fla. Stat. § 57.105; thus, where a trial court granted judgment to a cable franchiser as a matter of law and an appellate court affirmed, an installation contractor’s claim lacked “substantial fact or legal support.” The appellate court reversed the trial court’s decision denying the franchiser’s request for attorney’s fees. Johnson Enters. of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d 1290, 37 U.C.C. Rep. Serv. 2d (CBC) 244, 1998 U.S. App. LEXIS 31647 (11th Cir. Fla. 1998).

Criminal Law & Procedure: Discovery & Inspection: Discovery Misconduct: General Overview

825. Defendant in a criminal case was not entitled to attorney’s fee under Fla. Stat. § 57.105 as a sanction for the state wrongfully interfering with the taking of a witness’s deposition because the statute applies only to appellate proceedings in civil cases and does not authorize assessment for attorney’s fee against the state for appellate proceedings in a criminal case. State v. LoChiatto, 381 So. 2d 245, 1979 Fla. App. LEXIS 6978 (Fla. 4th DCA 1979).

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Estate, Gift & Trust Law: Estate Administration: Claims Against Estates: General Overview

826. Attorney fees awarded based on Fla. Stat. § 57.105 to attorneys representing an heir were not justified where there was a justiciable issue due to the uncertainty of the application of recent changes in the law. Fla. Stat. § 57.105 fees could only be awarded in cases where there was a complete absence of a justiciable issue of either law or fact raised by the losing party. Bitterman v. Bitterman, 714 So. 2d 356, 1998 Fla. LEXIS 481 (Fla. 1998), cert. denied, 525 U.S. 1187, 119 S. Ct. 1133, 143 L. Ed. 2d 126, 1999 U.S. LEXIS 1690 (U.S. 1999).

827. Attorney fees awarded based on Fla. Stat. § 57.105 to attorneys representing an heir were not justified where there was a justiciable issue due to the uncertainty of the application of recent changes in the law. Section 57.105 fees could only be awarded in cases where there was a complete absence of a justiciable issue of either law or fact raised by the losing party. Bitterman v. Bitterman, 714 So. 2d 356, 1998 Fla. LEXIS 481 (Fla. 1998), cert. denied, 525 U.S. 1187, 119 S. Ct. 1133, 143 L. Ed. 2d 126, 1999 U.S. LEXIS 1690 (U.S. 1999).

828. Attorney’s fees that were awarded to appellee personal representative pursuant to Fla. Stat. § 57.105 were not proper because appellant beneficiary’s action to block appellees’ payment of a claim to a former guardian of the decedent was not frivolous. O'Brien v. Sarka, 613 So. 2d 47, 1993 Fla. App. LEXIS 96 (Fla. 2nd DCA 1993).

Estate, Gift & Trust Law: Probate: Procedures in Probate: General Overview

829. Appellants’ petition was untimely under Fla. Stat. § 733.212(3) and thus was frivolous from the outset for purposes of Fla. Stat. § 57.105. Appellants never alleged any fraud, misrepresentation, or misconduct that would justify extending the three-month limitations period; because appellants received formal notice of the Notice of Administration, the five-day grace period of Fla. Prob. R. 5.042 did not apply; and even though a personal representative was no longer serving in that capacity at the time he filed a motion to dismiss, he did not lack standing because he was an interested person who was entitled under Fla. Prob. R. 5.040(a)(1) to raise written defenses. Shuck v. Smalls, 101 So. 3d 924, 2012 Fla. App. LEXIS 20886 (Fla. 4th DCA 2012).

Evidence: Procedural Considerations: Limited Admissibility

830. Where counsel for the party who prevailed in a probate action filed a motion for attorney’s fees based on an offer of judgment served on the losing party 22 days before the first scheduled trial date but more than 45 days before the actual trial date, it was an abuse of discretion for the trial court to impose attorney’s fee sanctions against the counsel personally under Fla. Stat. § 57.105 because the motion for fees was made before the appellate court had decided that an offer of settlement was untimely under Fla. R. Civ. P. 1.442(b) if made within 45 days of the initially scheduled trial date, and the motion was not frivolous or filed in bad faith. Brooks v. Hathaway (In re Estate of Hathaway), 768 So. 2d 525, 2000 Fla. App. LEXIS 11915 (Fla. 4th DCA 2000).

Family Law: Child Custody: Awards: Standards: Best Interests of Child

831. Trial court erred in awarding fees under this section to a former wife when the former husband requested to set aside the parties' stipulated oral settlement involving custody issues because the trial court had an independent obligation to determine the children's “best interests” and repudiate the “preliminary” agreement to the extent it was inconsistent with the best interests standard. Puglisi v. Puglisi, 135 So. 3d 1146, 2014 Fla. App. LEXIS 5619 (Fla. 5th DCA 2014).

Family Law: Child Custody: Procedures

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832. Mother’s motion for an award of attorney’s fees pursuant to Fla. Stat. § 57.105 was properly denied upon rehearing where a thorough examination of the record indicated insufficient evidence to support the mother’s claim that the trial court abused its discretion in restoring the father’s overnight visitation privileges with his 10- and 13-year-old daughters where there was no competent evidence that the children were abused physically or mentally while in the father’s care and control. Rosen v. Rosen, 576 So. 2d 308, 1990 Fla. App. LEXIS 8180 (Fla. 3rd DCA 1990).

Family Law: Child Support: Obligations: Enforcement: General Overview

833. Where a Department of Health and Rehabilitative Services collection action was undertaken against delinquent father in good faith, frivolousness that arose later did not give rise to a valid claim for attorney fees for father. State, Dep't of Health & Rehabilitative Services v. Thompson, 552 So. 2d 318, 1989 Fla. App. LEXIS 6408 (Fla. 2nd DCA 1989).

Family Law: Child Support: Obligations: Enforcement: Interstate Enforcement: Uniform Interstate Family Support Act

834. Father who successfully objected to enforcement of a Pennsylvania child support arrearage judgment was not entitled to attorney’s fees under Fla. Stat. § 57.105; the Florida Department’s actions in proceeding to confirm the judgment under the Uniform Interstate Family Support Act, even though the father was excused from paying on the judgment due to his total disability and receipt of supplemental security income payments, were not frivolous because the father’s situation could conceivably change such that he would be required to make payments under the judgment. Dep't of Revenue ex rel. Marchines v. Marchines, 974 So. 2d 1085, 2007 Fla. App. LEXIS 3848 (Fla. 2nd DCA 2007).

Family Law: Child Support: Procedures

835. Trial court properly awarded attorney’s fees to a father against the Department of Revenue (DOR) under Fla. Stat. § 57.105(1), based on its findings that DOR had reason to know that the Tax Refund Intercept Act did not apply, that DOR admitted that the father was entitled to the return of his refund without the necessity of a hearing, and that this was the father’s second trip to court on the same issue. Dep't of Revenue v. Cessford, 100 So. 3d 1199, 2012 Fla. App. LEXIS 19541 (Fla. 2nd DCA 2012).

836. Title IV-D cases anticipate the award of attorney’s fees against the Department of Revenue in actions to determine paternity and support pursuant to Fla. Stat. § 57.105. Therefore, a trial court is authorized to enter an award of attorney’s fees against the Department if the facts support such an award. Dep't of Revenue v. Cessford, 100 So. 3d 1199, 2012 Fla. App. LEXIS 19541 (Fla. 2nd DCA 2012).

Family Law: Delinquency & Dependency: Dependency Proceedings

837. Award of Fla. Stat. § 57.105 fees to a mother following the dismissal of a department’s dependency petition was error because, pursuant to Fla. Stat. § 39.01(14)(f), a child could have been found dependent if he or she was at substantial risk of imminent abuse, abandonment, or neglect and, in its initial and amended petitions for dependency, the department relied on the opinions of medical professionals with the Child Protection Team (CPT); because the CPT doctors remained convinced throughout the pendency of the litigation that a risk of imminent abuse, abandonment, or neglect existed, despite the withdrawal of Munchausen Syndrome by Proxy allegations, the department’s petition for dependency was always supported by the necessary material facts to overcome an award of § 57.105 fees. Dep't of Children & Families v. S.E., 12 So. 3d 902, 2009 Fla. App. LEXIS 8737 (Fla. 4th DCA 2009).

838. Circuit court erred in awarding an aunt and uncle attorney’s fees under Fla. Stat. § 57.105, as they were not parties to the underlying dependency litigation, but merely participants, entitled to notice only under Fla. Stat. § 39.01(50); further, even

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assuming that the aunt and uncle were parties, reversal of the award was warranted, as the court failed to make the requisite findings under Fla. Stat. § 57.105. Dep't of Children & Families v. H.G., 922 So. 2d 1072, 2006 Fla. App. LEXIS 3688 (Fla. 5th DCA 2006).

Family Law: Family Protection & Welfare: Children: General Overview

839. Attorney fees were improperly awarded to parents in a dependency proceeding pursuant to Fla. Stat. § 57.105 because nothing in the record indicated that the material allegations of the Department of Health and Rehabilitative Services and the investigator (who were jointly and severally assessed liability for those attorney fees) were untrue, that they were known to be untrue, or that they were not properly investigated prior to filing the dependency petition; justiciable issues existed at the time the petition was filed, so the award of fees could not be sustained. In Interest of A.C., 580 So. 2d 884, 1991 Fla. App. LEXIS 5359 (Fla. 1st DCA 1991).

Family Law: Family Protection & Welfare: Cohabitants & Spouses

840. Given the absence of a statutory provision providing that an award of attorney's fees pursuant to Fla. Stat. § 57.105 cannot be awarded in an action for injunction for protection against violence, and in light of the language in § 57.105 that its provisions applies to civil proceedings/actions and are supplemental to other sanctions/remedies, an award of attorney's fees pursuant to § 57.105 is not prohibited in an action under Fla. Stat. § 784.046. Hall v. Lopez, 213 So. 3d 1003, 2016 Fla. App. LEXIS 11493 (Fla. 1st DCA 2016).

Family Law: Marital Duties & Rights: Property Rights: Premarital Agreements: Enforcement

841. On remand after the Florida Supreme Court had ordered the reconsideration of a former husband’s appeal of an award of attorney’s fees to a former wife and the denial of his motion for attorney’s fees in light of Lashkajani v. Lashkajani, 911 So. 2d 1154 (Fla. 2005), which held that prevailing party attorney’s fee provisions in prenuptial agreements may be enforceable, the denial of attorney’s fees to the husband was affirmed as the husband raised identical claims that he raised in his initial brief; while the trial court ultimately rejected the wife’s claim that her situation was not governed by the prenuptial agreement, it did so only after a lengthy discussion of the applicable law and how it related to the agreement and it distinguished several cases based on differences in the language between the prenuptial agreements presented in those cases and the parties’ agreement. Moss v. Moss, 939 So. 2d 159, 2006 Fla. App. LEXIS 16245 (Fla. 2nd DCA 2006).

Family Law: Marital Termination & Spousal Support: General Overview

842. Because husband in dissolution action was making a good faith effort to change the existing law regarding interspousal immunity, an award of attorney’s fees to his wife pursuant to Fla. Stat. § 57.105 was inappropriate; an award of attorney’s fees was proper only absent a total and absolute lack of a justiciable issue. Cook v. Cook, 602 So. 2d 644, 1992 Fla. App. LEXIS 7612 (Fla. 2nd DCA 1992).

Family Law: Marital Termination & Spousal Support: Costs & Attorney Fees

843. Former husband was not entitled to attorney’s fees under a martial settlement agreement when a former wife failed to prevail in an emergency custody and contempt proceeding because neither party had defaulted; moreover, the application of Fla. Stat. § 57.105(7) was unnecessary since the fee provision applied to both parties equally. On remand, the trial court was directed to redetermine the wife’s entitlement to attorney’s fees for the work performed on her emergency motion using the standard for attorney’s fee awards under Fla. Stat. § 61.16. Sacket v. Sacket, 115 So. 3d 1069, 2013 Fla. App. LEXIS 9620 (Fla. 4th DCA 2013).

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Fla. Stat. § 57.105

844. Appeals court held in dissolution proceeding that as concerned appellate attorney’s fees, where no motion for attorney fees was made in the appellate court, a trial court was without jurisdiction to award the same, and this was true even when such fees were sought pursuant to Fla. Stat. § 57.105 (2001); and a trial court was also without jurisdiction to award trial level attorneys fees pursuant to § 57.105 for a domestic violence proceeding. Cisneros v. Cisneros, 831 So. 2d 257, 2002 Fla. App. LEXIS 17570 (Fla. 3rd DCA 2002).

845. Where the parties both took the position during trial that the issue of attorney fees would be deferred to post-trial consideration, so the father, in accordance with this mutual understanding, did not offer his evidence and argument at trial as to the issue of fees, the entire issue was remanded for a post-trial determination; In a paternity case the right to attorney fees was set forth in Fla. Stat. § 742.045, and there was no basis for an award of Fla. Stat. § 57.105 fees for unreasonable or apparently vexatious conduct. Guerin v. DiRoma, 819 So. 2d 968, 2002 Fla. App. LEXIS 8763 (Fla. 4th DCA 2002).

Family Law: Marital Termination & Spousal Support: Dissolution & Divorce: Property Distribution: Characterization: Nonmarital Property

846. Where a former husband appealed the trial court’s ruling that certain real property was non-marital property belonging solely to his former wife, although the wife prevailed on appeal, she was not entitled to appellate attorney’s fees under Fla. Stat. § 57.105 because, inter alia, the husband’s appeal contained justiciable issues. Johnson v. Johnson, 979 So. 2d 350, 2008 Fla. App. LEXIS 5265 (Fla. 5th DCA 2008).

Family Law: Paternity & Surrogacy: General Overview

847. Man who was erroneously named in a paternity suit by the Department of Revenue (DOR) served his motion for attorney's fees against the DOR under Fla. Stat. § 57.105, more than 21 days prior to filing the motion as required by § 57.105(4); given the DOR's random selection of the man's address from a phone book, an award of fees was justified. Lopez v. Dep't of Revenue, 201 So. 3d 119, 2015 Fla. App. LEXIS 14477 (Fla. 3rd DCA 2015).

848. Trial court improperly entered two attorney-fee awards under Fla. Stat. § 57.105, concluding that the Department of Revenue had the ability, but failed to obtain conclusive evidence of a putative father’s paternity sufficient to avoid the necessity of prosecuting a formal paternity suit; further, a third award was stricken, as the court lacked jurisdiction to enter an award of appellate fees. Dep't of Revenue v. Yambert, 883 So. 2d 881, 2004 Fla. App. LEXIS 14449 (Fla. 5th DCA 2004).

849. Where the parties both took the position during trial that the issue of attorney fees would be deferred to post-trial consideration, so the father, in accordance with this mutual understanding, did not offer his evidence and argument at trial as to the issue of fees, the entire issue was remanded for a post-trial determination; In a paternity case the right to attorney fees was set forth in Fla. Stat. § 742.045, and there was no basis for an award of Fla. Stat. § 57.105 fees for unreasonable or apparently vexatious conduct. Guerin v. DiRoma, 819 So. 2d 968, 2002 Fla. App. LEXIS 8763 (Fla. 4th DCA 2002).

850. Under Fla. Stat. § 57.105, the proper circumstances fees may be awarded to a successful respondent in the paternity action, if the proper predicate is made and the amount is reasonable. Collins v. Brodzki, 574 So. 2d 1157, 1991 Fla. App. LEXIS 800 (Fla. 3rd DCA 1991).

851. In an action in which paternity testing indicated that the defendant was 93.2 percent likely to be the father, no presumption of paternity arose and a justiciable issue of paternity existed with regard to the defendant’s third party complaint against another potential father; when tests later revealed that the third party defendant was not the father, but that the defendant was, the third party defendant was not entitled to attorneys’ fees pursuant to Fla. Stat. § 57.105. Schatz v. Wenaas, 510 So. 2d 1125,

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1987 Fla. App. LEXIS 9758 (Fla. 2nd DCA 1987).

852. Putative father was not entitled to receive attorney’s fees under Fla. Stat. § 57.105 from the Florida Department of Health and Rehabilitative Services, which stood in the place and stead of the mother in the paternity action, because justiciable issues of law and fact were raised in good faith concerning the child’s paternity, and the putative father’s admission to having had sexual relations with the mother during the critical time of conception lead to the conclusion that the action was not frivolous. Richardson v. Helms, 502 So. 2d 1372, 1987 Fla. App. LEXIS 6998 (Fla. 2nd DCA 1987).

853. Alleged biological father of a child was not entitled to attorney fees under Fla. Stat. § 57.105 after he was absolved of responsibility for the child because the Florida Department of Health and Rehabilitative Services’ action against defendant was brought in good faith. Florida Dep't of Health & Rehabilitative Services v. Cisneros, 446 So. 2d 727, 1984 Fla. App. LEXIS 12275 (Fla. 2nd DCA 1984).

Governments: Courts: Judges

854. Where an action for damages is filed against a trial judge personally for his official actions, and the trial judge is represented by both the attorney general and personally retained counsel, and the trial judge prevails, under Fla. Stat. § 57.105 the trial judge will not be entitled to attorney’s fees if the personal attorney merely joins in the motions of the attorney general and parrots his statements. Salfi v. Ising, 464 So. 2d 687, 1985 Fla. App. LEXIS 12654 (Fla. 5th DCA 1985).

Governments: Legislation: Effect & Operation: Operability

855. Because the commercial lease agreements in the case were entered into many years prior to October 1, 1988, the tenant not entitled to recover prevailing party attorneys’ fees on the appeal based on the contracts and Fla. Stat. § 57.105(7). First States Investors 3300, LLC v. Pheil, 52 So. 3d 845, 2011 Fla. App. LEXIS 1864 (Fla. 2nd DCA 2011).

Governments: Legislation: Effect & Operation: Prospective Operation

856. 1999 amendment to Fla. Stat. § 57.105 substantively changed the statute by creating rights to fees under circumstances not previously authorized. As a result, the revised statute cannot be applied retroactively to papers filed, actions taken, or matters occurring prior to the effective date of the amendment; however, it was properly applied to actions taken or positions maintained after the effective date of the statute even though the complaint was filed prior thereto. Mullins v. Kennelly, 847 So. 2d 1151, 2003 Fla. App. LEXIS 9477 (Fla. 5th DCA 2003).

857. Patient should not have had attorney’s fees taxed against him pursuant to Fla. Stat. § 57.105 following dismissal of his medical malpractice action even though no justiciable issue of law or fact existed, because Fla. Stat. § 57.105 did not become effective until approximately a year and a half after the commencement of the patient’s action and was not retroactive; the statute did not create a new procedural device, it created a new right. Love v. Jacobson, 390 So. 2d 782, 1980 Fla. App. LEXIS 18154 (Fla. 3rd DCA 1980).

Governments: Legislation: Effect & Operation: Retrospective Operation

858. Safe harbor provision in Fla. Stat. § 57.105(4) did not apply to a case because the safe harbor provision was substantive and did not apply retroactively, and the claims which were found to be frivolous by a trial court were originally filed before the safe harbor provision took effect. Bionetics Corp. v. Kenniasty, 69 So. 3d 943, 2011 Fla. LEXIS 338 (Fla. 2011), cert. denied, 565 U.S. 1100, 132 S. Ct. 848, 181 L. Ed. 2d 563, 2011 U.S. LEXIS 9008 (U.S. 2011).

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Governments: Legislation: Interpretation

859. Any interpretation of Fla. Stat. § 57.105 has to give effect to its central goal of deterring meritless filings and streamlining the administration and procedure of the courts. Mullins v. Kennelly, 847 So. 2d 1151, 2003 Fla. App. LEXIS 9477 (Fla. 5th DCA 2003).

Governments: Legislation: Statutes of Limitations: Extension & Revival

860. Court’s final judgment reservation of jurisdiction was an enlargement of time allowing a party to file a late motion for attorney fees; where the worker’s due process claims failed and his claims were frivolous, fees were properly awarded to the employer. Fisher v. John Carter & Assocs., 864 So. 2d 493, 2004 Fla. App. LEXIS 35 (Fla. 4th DCA 2004), overruled in part, Saia Motor Freight Line, Inc. v. Reid, 930 So. 2d 598, 2006 Fla. LEXIS 802 (Fla. 2006), overruled in part as stated in ZC Ins. Co. v. Brooks, 962 So. 2d 419, 2007 Fla. App. LEXIS 13005 (Fla. 4th DCA 2007), overruled in part as stated in State Farm Mut. Auto. Ins. Co. v. Stylianoudakis, 946 So. 2d 647, 2007 Fla. App. LEXIS 722 (Fla. 4th DCA 2007), overruled in part as stated in ZC Ins. Co. v. Brooks, 2007 Fla. App. LEXIS 4577 (Fla. 4th DCA Mar. 28, 2007).

Governments: Legislation: Statutes of Limitations: Time Limitations

861. Appellants’ petition was untimely under Fla. Stat. § 733.212(3) and thus was frivolous from the outset for purposes of Fla. Stat. § 57.105. Appellants never alleged any fraud, misrepresentation, or misconduct that would justify extending the three-month limitations period; because appellants received formal notice of the Notice of Administration, the five-day grace period of Fla. Prob. R. 5.042 did not apply; and even though a personal representative was no longer serving in that capacity at the time he filed a motion to dismiss, he did not lack standing because he was an interested person who was entitled under Fla. Prob. R. 5.040(a)(1) to raise written defenses. Shuck v. Smalls, 101 So. 3d 924, 2012 Fla. App. LEXIS 20886 (Fla. 4th DCA 2012).

862. Where an insured party filed suit against a title insurer and its agent, and where the insurer and the agent successfully raised the statute of limitations that was contained in Fla. Stat. § 95.031 as an affirmative defense and were awarded summary judgment, and where the trial court also awarded attorney’s fees to the insurer and the agent pursuant to Fla. Stat. § 57.105, the appellate court reversed the attorney’s fee awards because the determination of when the cause of action accrued, for the purposes of the statute of limitations, was not so clear as to render the suit frivolous at its inception for purposes of granting attorney’s fees under ch. 57.105. Although the affirmative defense of statute of limitations was timely raised, the insurer and the agent conducted discovery for two years before filing their summary judgment motion, and it was inconceivable that such intensive and prolonged discovery and preparation would have been necessary to establish that the insured party’s cause of action was clearly untenable or that its insufficiency was so manifest on a bare inspection of the record that its character could have been determined without argument or research; moreover, the fact that subsequent discovery established that there was no justiciable issue did not justify the awards. Simkins Indus. v. Lawyers Title Ins. Corp., 696 So. 2d 384, 1997 Fla. App. LEXIS 5563 (Fla. 3rd DCA 1997).

Governments: State & Territorial Governments: Claims By & Against

863. Trial court erred by denying the mother’s motion for attorney fees because the notice requirement in the self-insurance fund statute-that a party seeking attorney’s fees had to serve a copy of the pleading on the Florida Department of Financial Services (DFS)-did not apply to a motion for fees. The case was not a proceeding against the state but, rather, one brought by the state (the Florida Department of Children and Families) and, no “pleading” was filed by the mother seeking fees. N.S. v. Dep't of Children & Families, 119 So. 3d 558, 2013 Fla. App. LEXIS 13931 (Fla. 5th DCA 2013).

Immigration Law: Deportation & Removal: General Overview

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864. Appeal was frivolous under Fla. Stat. § 57.105 and attorney’s fees were awarded because the state insisted on filing a second paternity action despite contrary case law and HLA test results indicating that man was not the father of the child. Department of Revenue ex rel. Glover v. Smatt, 679 So. 2d 1191, 1996 Fla. App. LEXIS 7625 (Fla. 5th DCA 1996).

Insurance Law: Claims & Contracts: Cancellation & Nonrenewal: Notice Requirements

865. When an insured sued an insurer for breach of contract and then appealed a summary judgment granted in favor of the insurer, the insured was entitled to an award of attorney’s fees because, after the insurer admitted the insurer did not prove that the insurer had mailed a notice of cancellation to the insured, required by Fla. Stat. § 627.7281, the insurer sought affirmance, although the insurer knew or should have known that the necessary material facts did not support the insurer’s defense of the trial court’s order, pursuant to Fla. Stat. § 57.105(1)(a). Magee v. Am. Southern Home Ins. Co., 982 So. 2d 1255, 2008 Fla. App. LEXIS 8144 (Fla. 1st DCA 2008).

Insurance Law: Claims & Contracts: Costs & Attorney Fees: General Overview

866. Franchisee’s insurer was not entitled to an award of attorney’s fees and costs under Fla. Stat. § 57.105 as to either the defense that it provided to the franchiser in a slip-and-fall action against the franchisee and franchiser or as to the declaratory judgment action on the insurer’s duty to defend the franchiser in the slip-and-fall action; the franchise agreement required the franchisee to insure the franchiser as an additional insured, the franchisee asked the insurance agent to insure the franchiser, and the certificate of insurance listed the franchiser as an additional insured. Wendy's of N.E. Fla., Inc. v. Vandergriff, 865 So. 2d 520, 2003 Fla. App. LEXIS 17583 (Fla. 1st DCA 2003).

Insurance Law: General Liability Insurance: Obligations: Defense

867. Franchisee’s insurer was not entitled to an award of attorney’s fees and costs under Fla. Stat. § 57.105 as to either the defense that it provided to the franchiser in a slip-and-fall action against the franchisee and franchiser or as to the declaratory judgment action on the insurer’s duty to defend the franchiser in the slip-and-fall action; the franchise agreement required the franchisee to insure the franchiser as an additional insured, the franchisee asked the insurance agent to insure the franchiser, and the certificate of insurance listed the franchiser as an additional insured. Wendy's of N.E. Fla., Inc. v. Vandergriff, 865 So. 2d 520, 2003 Fla. App. LEXIS 17583 (Fla. 1st DCA 2003).

Insurance Law: General Liability Insurance: Persons Insured: General Overview

868. Franchisee’s insurer was not entitled to an award of attorney’s fees and costs under Fla. Stat. § 57.105 as to either the defense that it provided to the franchiser in a slip-and-fall action against the franchisee and franchiser or as to the declaratory judgment action on the insurer’s duty to defend the franchiser in the slip-and-fall action; the franchise agreement required the franchisee to insure the franchiser as an additional insured, the franchisee asked the insurance agent to insure the franchiser, and the certificate of insurance listed the franchiser as an additional insured. Wendy's of N.E. Fla., Inc. v. Vandergriff, 865 So. 2d 520, 2003 Fla. App. LEXIS 17583 (Fla. 1st DCA 2003).

869. A trial court abused its discretion in awarding fees under Fla. Stat. § 57.105 because a franchiser’s position that an insurer had a duty to defend it under a policy held by the franchisee was not wholly unsupported by the facts at any time before final summary judgment where (1) at the time the insurer filed its complaint for declaratory relief, a justiciable controversy existed as to whether the franchiser was insured by the insurer; and (2) the franchisee indicated in discovery that it had a contractual obligation to insure the franchiser as an additional insured under their franchise agreement, that it had requested its agent to insure the franchiser, that it believed the franchiser was an additional insured, and that the certificate of insurance named the franchiser as an additional insured. Wendy's of N.E. Fla., Inc. v. Vandergriff, 865 So. 2d 520, 2003 Fla. App. LEXIS 17583 (Fla. 1st DCA 2003).

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Labor & Employment Law: Discrimination: Harassment: Sexual Harassment: Remedies: Costs & Attorney Fees

870. Employee did not have to comply with the pre-suit procedures set forth in the Florida Civil Rights Act, Fla. Stat. § 760.01 et seq., because the allegations in the employee’s complaint of negligent retention and supervision, vicarious liability, and battery, based upon the owner of the employer allegedly touching the employee in an unwanted sexual manner, stood on their own under common law. Therefore, the trial court erred pursuant to Fla. Stat. § 57.105(1) in its grant of attorney’s fees and costs to the employer and its owner upon the improper dismissal of the employee’s complaint. Gerber v. Vincent's Men's Hairstyling, Inc., 57 So. 3d 935, 2011 Fla. App. LEXIS 4354 (Fla. 4th DCA 2011).

Labor & Employment Law: Employment Relationships: At-Will Employment: General Overview

871. Action for breach of a non-competition agreement was not frivolous when filed, because evidence that the former employee was seen entering a competitor’s office a week after the former employee’s resignation, and that the competitor told the former employer that the former employee worked for a different, non-competitor corporation, for which articles of incorporation had not been filed, created a justiciable issue of fact concerning whether the former employee worked for the competitor; the lawsuit became frivolous during discovery when the justiciable issues were resolved and former employer had discovered no evidence that the former employee took confidential information or worked for the competitor corporation. Weatherby Assocs. v. Ballack, 783 So. 2d 1138, 2001 Fla. App. LEXIS 4046 (Fla. 4th DCA 2001).

Labor & Employment Law: Employment Relationships: Employment Contracts: Conditions & Terms: Trade Secrets & Unfair Competition: Noncompetition & Nondisclosure Agreements

872. Action for breach of a non-competition agreement was not frivolous when filed, because evidence that the former employee was seen entering a competitor’s office a week after the former employee’s resignation, and that the competitor told the former employer that the former employee worked for a different, non-competitor corporation, for which articles of incorporation had not been filed, created a justiciable issue of fact concerning whether the former employee worked for the competitor; the lawsuit became frivolous during discovery when the justiciable issues were resolved and former employer had discovered no evidence that the former employee took confidential information or worked for the competitor corporation. Weatherby Assocs. v. Ballack, 783 So. 2d 1138, 2001 Fla. App. LEXIS 4046 (Fla. 4th DCA 2001).

Labor & Employment Law: Wage & Hour Laws: Coverage & Definitions: Employers

873. In an employee’s suit to recover overtime compensation under the Fair Labor Standards Act of 1938, a corporation and two individuals’ request for attorney’s fees under Fla. Stat. § 57.105 was denied; because the employee alleged that the corporation and two individuals had operational control over the enterprise where the employee worked, her complaint met the pleading requirements of Fed. R. Civ. P. 8 with regard to the definition of an “employer” under 29 U.S.C.S. § 203(d). Aikens v. FSG of SW Fla., Inc., 2006 U.S. Dist. LEXIS 62536 (M.D. Fla. Sept. 1, 2006).

Labor & Employment Law: Wage & Hour Laws: Remedies: Costs & Attorney Fees

874. Trial court abused its discretion in taxing attorney fees solely against the employer in a wage and independent contractor claim because the doctors’ motion for fees under Fla. Stat. § 57.105 was clearly addressed toward the conduct of the employer’s attorney, and the appellate court declined to infer that the trial court intended to find that the attorney acted in good faith so as to be exempt from fees under § 57.105(3). Hall v. White, 97 So. 3d 907, 2012 Fla. App. LEXIS 14328 (Fla. 1st DCA 2012).

Labor & Employment Law: Wrongful Termination: Whistleblower Protection Act: General Overview

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875. In a wrongful discharge action filed under the Florida Whistleblower’s Act, the trial court properly awarded fees under Fla. Stat. § 57.105(1), as: (1) the employee’s complaint was filed in the absence of compliance with the pre-suit notice requirements under Fla. Stat. § 768.28(6)(a) and, when notified of this defect, she did not voluntarily dismiss the complaint; and (2) the employee filed a motion for default judgment without any factual or legal basis. Barthlow v. Jett, 930 So. 2d 739, 2006 Fla. App. LEXIS 6687 (Fla. 1st DCA 2006).

Legal Ethics: Client Relations: Attorney Fees: General Overview

876. Attorney was without authority to seek any relief on the client’s behalf because, by the time the foreclosure action was dismissed and the motion for attorney fees filed, the attorney no longer represented the client. Because the attorney failed to timely seek a charging lien, he lost any opportunity to seek relief for attorney fees on his own behalf. Cacho v. Bank of N.Y. Mellon, 124 So. 3d 943, 2013 Fla. App. LEXIS 15207 (Fla. 3rd DCA 2013).

Legal Ethics: Client Relations: Conflicts of Interest

877. Attorney facing a Fla. Stat. § 57.105 proceeding was required to apprise the client of any potential conflict and the consequences of continued representation once the attorney has formed a reasonable belief that such representation will not be adversely affected, documenting not only the disclosure but also the client’s endorsement of the disclosure and the continuing representation; in such circumstances, the attorney must consider whether the conflict will materially interfere with the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client. Mullins v. Kennelly, 847 So. 2d 1151, 2003 Fla. App. LEXIS 9477 (Fla. 5th DCA 2003).

878. It is incumbent upon an attorney facing a Fla. Stat. § 57.105 proceeding to apprise the client of the conflict and consequences of continued representation once the attorney has formed a reasonable belief that such representation will not be adversely affected, and the attorney should document not only the disclosure, but also the client’s endorsement of the disclosure and the continuing representation. Khoury v. Estate of Kashey, 533 So. 2d 908, 1988 Fla. App. LEXIS 4948 (Fla. 3rd DCA 1988).

Legal Ethics: Judicial Conduct

879. Where a judge admitted to charges of public intoxication and inappropriate conduct of an intimate nature, the Judicial Qualifications Commission found insufficient evidence supporting other charges against the judge, and the Commission prevailed in showing that the judge’s conduct brought the judiciary into disrepute, the judge was not entitled to costs pursuant to Fla. R. Jud. Admin. 2.140(c) because he was not the prevailing party; the judge was not entitled to attorney fees pursuant to Fla. Stat. § 57.105 as such only applied to civil proceedings. Inquiry Concerning a Judge (Cope), 848 So. 2d 301, 2003 Fla. LEXIS 901 (Fla. 2003).

880. Since Fla. Stat. § 57.105 (2002) sanctions applied only to civil proceedings, and had never been applied to proceedings before the Judicial Qualifications Commission (JQC), or to any other administrative proceeding for that matter, the judge could not request attorney fees where the judge had been found to have brought the judiciary into disrepute. Inquiry Concerning a Judge (Cope), 848 So. 2d 301, 2003 Fla. LEXIS 901 (Fla. 2003).

Legal Ethics: Professional Conduct: Frivolous Claims

881. Sanctions for a frivolous attempt to extend a tenant’s possession of a unit after a foreclosure sale were reallocated equally between counsel and the tenant under Fla. Stat. § 57.105(1) as counsel was responsible for the frivolous defenses asserted in the tenant’s name, and had duty to advise his clients that they had no legal right to remain in the unit; further, Fla. R. Civ. P. 1.010 imposed on parties and attorneys a duty to construe and apply the rules to secure the just, speedy, and inexpensive

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determination of every action. Stratton v. 6000 Indian Creek, LLC, 95 So. 3d 334, 2012 Fla. App. LEXIS 11965 (Fla. 3rd DCA 2012).

882. Estate’s personal representative was entitled to have appellate attorney’s fees and costs assessed against both a trust beneficiary and his counsel; the fees and costs were themselves a damage resulting from breaches of a Global Settlement Agreement, and an entitlement to further fees and costs as a sanction was also included in an order requiring the beneficiary to dismiss a suit filed in Puerto Rico. This was one of those rare cases in which the court itself, exercising its authority under Fla. Stat. § 57.105 determined that the beneficiary and his current counsel had advanced arguments that a reasonable lawyer would have known were not well grounded in fact and were not supported by existing law or by a reasonable argument for the extension, modification, or reversal of existing law, as contemplated by R. Regulating Fla. Bar 4-3.1.. Hernandez v. de los Hernandez v. de los Angeles Gil, 998 So. 2d 651, 2008 Fla. App. LEXIS 18496 (Fla. 3rd DCA 2008).

883. Fee award ordering appellants’ attorney to pay fees was reversed because the attorney did not file the initial complaint in the action and there had been no determination that the initial complaint was frivolous as required by Fla. Stat. § 57.105 (1995). Bisson v. Arellano, 844 So. 2d 648, 2003 Fla. App. LEXIS 1143 (Fla. 3rd DCA 2003).

Legal Ethics: Professional Conduct: Tribunals

884. Rule Regulating Fla. Bar 4-3.3(a)(3) specifically prohibits an attorney from knowingly failing to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel, and Fla. Stat. § 57.105 warns that counsel must be governed by considerations other than mere zealous advocacy for the client; therefore, the code and rules require counsel to concede error on appeal when appropriate. Boca Burger, Inc. v. Forum, 912 So. 2d 561, 2005 Fla. LEXIS 1449 (Fla. 2005).

Legal Ethics: Sanctions: Disciplinary Proceedings: Investigations

885. Where a judge admitted to charges of public intoxication and inappropriate conduct of an intimate nature, the Judicial Qualifications Commission found insufficient evidence supporting other charges against the judge, and the Commission prevailed in showing that the judge’s conduct brought the judiciary into disrepute, the judge was not entitled to costs pursuant to Fla. R. Jud. Admin. 2.140(c) because he was not the prevailing party; the judge was not entitled to attorney fees pursuant to Fla. Stat. § 57.105 as such only applied to civil proceedings. Inquiry Concerning a Judge (Cope), 848 So. 2d 301, 2003 Fla. LEXIS 901 (Fla. 2003).

Real Property Law: Adjoining Landowners: Easements

886. Trial court erred in awarding a utility attorney fees after appellant voluntarily dismissed his lawsuit, as the issue of whether it had a utility easement authorizing the installation of eight smart meters on appellant's single-family residence was arguably supportable under the facts and law and was not frivolous. Blinn v. Fla. Power & Light Co., 189 So. 3d 227, 2016 Fla. App. LEXIS 4000 (Fla. 2nd DCA 2016).

Real Property Law: Brokers: Brokerage Agreements

887. Public policy consideration underlying Fla. Stat. § 57.105(5) was to provide mutuality of attorney’s fee remedy in contract cases; thus, a trial court erred in holding that Florida law applied to a brokerage agreement, which provided that New York law governed agreement’s terms and arbitration. Walls v. Quick & Reilly, Inc., 824 So. 2d 1016, 2002 Fla. App. LEXIS 12535 (Fla. 5th DCA 2002).

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Real Property Law: Common Interest Communities: Condominiums: Condominium Associations

888. Condominium association was not entitled to attorney fees under this statute because the fact that the unit owners obtained the relief they sought, as acknowledged by the initially-presiding trial judge at the 2015 hearing before the entry of the final judgment, demonstrated that their action was not frivolous and the trial court did not make detailed, specific findings of bad faith. Gonzalez v. Int'l Park Condo. I Ass'n, 2017 Fla. App. LEXIS 5755 (Fla. 3rd DCA 2017).

Real Property Law: Common Interest Communities: Homeowners Associations

889. Trial court abused its discretion by denying a homeowner attorney's fees and court costs because the association filed a multi-count complaint and sought an award of attorney's fees for counts one, two, and four pursuant to the restrictive covenants and Fla. Stat. § 720.305(1), but the homeowner prevailed on each of those three counts and was, therefore, the prevailing party entitled to an award of reasonable attorney's fees incurred regarding those counts. Olson v. Pickett Downs Unit IV Homeowner's Ass'n, 205 So. 3d 869, 2016 Fla. App. LEXIS 17883 (Fla. 5th DCA 2016).

890. When a plaintiff, in a multi-count complaint, asserts a claim to which is appurtenant a provision for attorney's fees to the prevailing party and asserts other theories of recovery which do not include provision for prevailing party attorney's fees, one party or the other is a prevailing party as to the cause of action involving those fees independent of which party wins or loses on the other theories of recovery asserted in the same cause. Olson v. Pickett Downs Unit IV Homeowner's Ass'n, 205 So. 3d 869, 2016 Fla. App. LEXIS 17883 (Fla. 5th DCA 2016).

891. Townhouse unit owner was awarded attorney fees because he was the prevailing party in a suit against his townhouse association who arbitrarily denied unit owner’s request for permission to install screening on the front of his townhouse. Jakobi v. Kings Creek Village Townhouse Ass'n, 665 So. 2d 325, 1995 Fla. App. LEXIS 12996 (Fla. 3rd DCA 1995).

Real Property Law: Estates: Concurrent Ownership: General Overview

892. Because there was a justiciable issue as to whether appellant husband was entitled to have the marital home partitioned, the trial court’s award of attorney’s fees to appellee wife under Fla. Stat. § 57.105 was improper. Cannon v. Morris, 407 So. 2d 372, 1981 Fla. App. LEXIS 21979 (Fla. 1st DCA 1981).

Real Property Law: Financing: Mortgages & Other Security Instruments

893. Trial court erred by granting the wife of the mortgagor’s request for attorney fees because her status as the lawsuit's prevailing party did not equate to her being a mortgagor under the mortgage so as to trigger the reciprocity provision. The wife never tried to meet her burden, much less that she did meet her burden and any attempt by her to meet her burden likely would have undermined her successful defense against the bank's case. Fla. Cmty. Bank, N.A. v. Red Rd. Residential, LLC, 197 So. 3d 1112, 2016 Fla. App. LEXIS 8780 (Fla. 3rd DCA 2016).

Real Property Law: Financing: Mortgages & Other Security Instruments: Foreclosures

894. Mortgagor's husband, who did not sign the note or the mortgage, was not entitled to an award of attorney's fees for being named as a defendant in the foreclosure proceeding because the mortgagee had an objectively reasonable belief, based on the checked box on the mortgage instrument, that the husband might have been a proper defendant. Trust Mortg., LLC v. Ferlanti, 193 So. 3d 997, 2016 Fla. App. LEXIS 8344 (Fla. 4th DCA 2016).

Real Property Law: Financing: Mortgages & Other Security Instruments: Foreclosures: General Overview

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895. Award of attorney’s fees to owner under Fla. Stat. § 57.105(7) was proper in a foreclosure case because, inter alia, the prevailing party obligation in the contract was read to be reciprocal and the refiling of the same suit after a voluntary dismissal did not alter the owner’s right to recover prevailing party attorney’s fees incurred in defense of first suit; the trial court’s use of a 2.5 multiplier was proper. The owner had no ability to pay his attorney, who took the case on a contingency fee basis, and it seemed initially unlikely that the attorney would have had any way to succeed in defending the owner’s ownership rights. J.P. Morgan Mortg. Acquisition Corp. v. Golden, 98 So. 3d 220, 2012 Fla. App. LEXIS 16466 (Fla. 2nd DCA 2012).

Real Property Law: Homestead Exemptions

896. Law firm that persistently pursued the former wife of a client seeking fees that it contended the client owed was ordered to pay the wife's attorney's fees in defending the claim pursuant to Fla. Stat. § 57.105, because the parties' marital home was homestead property protected by Fla. Const. art. X, § 4, and the husband could not waive the protection in a retainer agreement with his attorney. Law v. Law, 2015 Fla. App. LEXIS 4698 (Apr. 1, 2015).

Real Property Law: Landlord & Tenant: Landlord's Remedies & Rights: Eviction Actions: General Overview

897. In an eviction action between a landlord and a tenant, where the trial court misplaced its reliance on the Third District Court of Appeals’ summary denial of a tenant’s petition for writ of certiorari, the trial court erred when it denied the tenant’s motion for trial attorney’s fees; but, the appellate division had jurisdiction, and acted within its authority, when it summarily denied the tenant’s motion for appellate attorney’s fees, and reconsideration on manifest injustice grounds was unwarranted. Business Success Group, Inc. v. Argus Trade Realty Inv., Inc., 898 So. 2d 970, 2005 Fla. App. LEXIS 2059 (Fla. 3rd DCA 2005).

Real Property Law: Landlord & Tenant: Lease Agreements: Damages: General Overview

898. Parties’ lease was ambiguous as to which party was entitled to retain the trade fixtures when the lease expired, so a tenant was entitled to retain the trade fixtures; because entitlement to the trade fixtures and the security deposit was the most significant issue in the case, the tenant prevailed and was entitled to attorneys fees and costs on the breach of contract claims under the lease, this section and Fla. Stat. § 57.041. H. Allen Holmes, Inc. v. Jim Molter, Inc., 127 So. 3d 695, 2013 Fla. App. LEXIS 18429 (Fla. 4th DCA 2013).

Real Property Law: Landlord & Tenant: Tenant's Remedies & Rights: General Overview

899. Tenant’s award of fees under Fla. Stat. § 57.105(7) was error. The plain language of the lease did not provide for an award of fees to the tenant and there was no evidence indicating that the landlord waived the right to contest the tenant’s request for fees or was equitably estopped from doing so. WSG W. Palm Beach Dev., LLC v. Blank, 990 So. 2d 708, 2008 Fla. App. LEXIS 15104 (Fla. 4th DCA 2008).

Real Property Law: Limited Use Rights: Easements: General Overview

900. Attorney’s fees under Fla. Stat. § 57.105 should have been granted because an action to extinguish an easement presented no justiciable issue of either law or fact where an express grant of the easement without reservation or restriction was permanent and not revocable by the grantor. Ford v. Miller, 506 So. 2d 464, 1987 Fla. App. LEXIS 7901 (Fla. 2nd DCA 1987).

Real Property Law: Nonmortgage Liens: Mechanics' Liens

901. Because the homeowner prevailed on the significant issue litigated in the trial court (the breach of contract claim) and defeated all the claims brought by the construction company, he was entitled to the award of attorney’s fees under the parties’ contract and § 57.105, Fla. Stat. Furthermore, because the homeowner prevailed against the company in its attempt to enforce

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a mechanic’s lien, the homeowner was entitled to attorney’s fees under § 713.29, Fla. Stat. Kelsey v. Metro Constr., 31 So. 3d 252, 2010 Fla. App. LEXIS 3805 (Fla. 3rd DCA 2010).

Real Property Law: Purchase & Sale: Contracts of Sale: General Overview

902. Appellees’ motion for attorney’s fees was granted where, by closing a real estate transaction, appellants recognized the validity of the final judgment entered by the lower court, closed on the contract, deeded the property to appellees, and accepted payment of the contract sale price; thus, when appellants filed the appeal, they knew or should have known the grounds argued for reversal were not supported by material facts necessary to establish relief, nor were they supported by the application of then-existing law to those material facts. Smith v. Gore, 933 So. 2d 567, 2006 Fla. App. LEXIS 3716 (Fla. 1st DCA 2006).

903. The trial court erred in awarding attorney’s fees to the purchasers of land pursuant to Fla. Stat. § 57.105 where the purchasers had brought suit against the sellers of the property alleging a tender of full payment of the outstanding balance due and owing on the mortgage held by the sellers, because the existence of a justiciable issue of law or fact was affirmatively demonstrated by the trial court’s denial of a motion for summary judgment. First v. Carver, 504 So. 2d 50, 1987 Fla. App. LEXIS 7290 (Fla. 2nd DCA 1987).

Real Property Law: Title Quality: Adverse Claim Actions: General Overview

904. In an action brought by a landowner to quiet title to a parcel of land that the Florida Department of Transportation claimed under a right-of-way, the trial court properly ordered the Department to pay a landowner’s attorney’s fees pursuant to Fla. Stat. § 57.105(1), because there was no justiciable issue of law or fact raised by the Department’s affirmative defense based on Fla. Stat. § 95.361, where the Department stipulated that a tax deed conveyed the property at issue to the landowner’s predecessor in interest, the Department failed to make a good faith effort to determine whether the tax deed had conveyed the property before asserting a ch. 95.361 defense, and the Department could have discerned from the available information that the tax deed had conveyed the property and that its ch. 95.361 defense was untenable. DOT v. James, 681 So. 2d 886, 1996 Fla. App. LEXIS 11088 (Fla. 3rd DCA 1996).

Real Property Law: Title Quality: Marketable Title: Abstracts

905. Where an insured party filed suit against a title insurer and its agent, and where the insurer and the agent successfully raised the statute of limitations that was contained in Fla. Stat. § 95.031 as an affirmative defense and were awarded summary judgment, and where the trial court also awarded attorney’s fees to the insurer and the agent pursuant to Fla. Stat. § 57.105, the appellate court reversed the attorney’s fee awards because the determination of when the cause of action accrued, for the purposes of the statute of limitations, was not so clear as to render the suit frivolous at its inception for purposes of granting attorney’s fees under ch. 57.105. Although the affirmative defense of statute of limitations was timely raised, the insurer and the agent conducted discovery for two years before filing their summary judgment motion, and it was inconceivable that such intensive and prolonged discovery and preparation would have been necessary to establish that the insured party’s cause of action was clearly untenable or that its insufficiency was so manifest on a bare inspection of the record that its character could have been determined without argument or research; moreover, the fact that subsequent discovery established that there was no justiciable issue did not justify the awards. Simkins Indus. v. Lawyers Title Ins. Corp., 696 So. 2d 384, 1997 Fla. App. LEXIS 5563 (Fla. 3rd DCA 1997).

Securities Law: Liability: RICO Actions: General Overview

906. Circuit court did not abuse its discretion in awarding a corporation attorneys’ fees as an investor’s lawsuit was meritless; further, the court’s failure to distinguish between the amount awarded under Fla. Stat. § 895.01 and Fla. Stat. § 57.105 was of no consequence as the entire award could have been made pursuant to § 57.105 alone. Smith v. Viragen, Inc., 902 So. 2d 187, 2005 Fla. App. LEXIS 2470 (Fla. 3rd DCA 2005).

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Torts: Business Torts: Fraud & Misrepresentation: General Overview

907. Legislature’s clear intent in wording Fla. Stat. § 772.104 of the Florida Civil Remedies for Criminal Practices Act, Fla. Stat. § 772.101 et seq., was to discourage RICO claims lacking either legal or factual substance by setting a less stringent standard for a fee award than the bad faith standard of Fla. Stat. § 57.105; thus, where a trial court granted judgment to a cable franchiser as a matter of law and an appellate court affirmed, an installation contractor’s claim lacked “substantial fact or legal support.” The appellate court reversed the trial court’s decision denying the franchiser’s request for attorney’s fees. Johnson Enters. of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d 1290, 37 U.C.C. Rep. Serv. 2d (CBC) 244, 1998 U.S. App. LEXIS 31647 (11th Cir. Fla. 1998).

Torts: Damages: Costs & Attorney Fees: General Overview

908. Legislature’s clear intent in wording Fla. Stat. § 772.104 of the Florida Civil Remedies for Criminal Practices Act, Fla. Stat. § 772.101 et seq., was to discourage RICO claims lacking either legal or factual substance by setting a less stringent standard for a fee award than the bad faith standard of Fla. Stat. § 57.105; thus, where a trial court granted judgment to a cable franchiser as a matter of law and an appellate court affirmed, an installation contractor’s claim lacked “substantial fact or legal support.” The appellate court reversed the trial court’s decision denying the franchiser’s request for attorney’s fees. Johnson Enters. of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d 1290, 37 U.C.C. Rep. Serv. 2d (CBC) 244, 1998 U.S. App. LEXIS 31647 (11th Cir. Fla. 1998).

909. For a court to award attorney’s fees under Fla. Stat. § 57.105, the action must be so devoid of merit both on the facts and the law as to be completely untenable; the purpose of the law is to discourage baseless claims, stonewall defenses, and sham appeals in civil litigation. Therefore, an individual who wrote a letter to a county commissioner criticizing the actions of an animal control director in a highly publicized case was entitled to attorney’s fees after the director dismissed her defamation complaint against the individual. Demby v. English, 667 So. 2d 350, 1995 Fla. App. LEXIS 11309 (Fla. 1st DCA 1995).

910. Award of attorney fees pursuant to Fla. Stat. § 57.105 to defendant who prevailed on summary judgment in a personal injury action was improper where the action was not frivolous at its inception in that plaintiffs sustained serious injuries due to someone’s bull being on the highway and plaintiff had a reasonable basis to believe that defendant owned the bull. Noggle v. Turner Cattle Co., 656 So. 2d 619, 1995 Fla. App. LEXIS 7002 (Fla. 2nd DCA 1995).

911. In automobile accident case brought by insured passenger and his insurer against insured driver, award of attorneys fees in favor of driver was vacated because under Fla. Stat. § 57.105(1), there must be a complete absence of a justiciable issue of either law or fact raised by the complaint or defense, and the trial court had found that there was a sufficient justiciable issue created to survive driver’s motion for summary judgment. Kahn ex rel. Benefit of Amica Mut. Ins. Co. v. Kahn, 630 So. 2d 223, 1994 Fla. App. LEXIS 4 (Fla. 3rd DCA 1994).

912. Under Fla. Stat. § 57.105 the trial court properly assessed attorney’s fees against a plaintiff in a tort action where the plaintiff who was bringing a suit against a minor for a tort allegedly committed by the minor added the minor’s mother as a defendant to the suit even though there was no factual basis for recovery against the mother because there was no evidence that the child had a propensity to engage in the allegedly tortious conduct which the parent knew or should have known could cause injury to another. Sykes v. St. Andrews Sch., 625 So. 2d 1317, 1993 Fla. App. LEXIS 11114 (Fla. 4th DCA 1993).

913. In action by plaintiff’s against sheriff for false arrest and imprisonment, trial court finding that plaintiffs were liable for sheriff’s attorney fees pursuant to Fla. Stat. § 57.105 was affirmed because the case presented a complete absence of any

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justiciable issue of either law or fact. LeGrand v. Dean, 598 So. 2d 218, 1992 Fla. App. LEXIS 4976 (Fla. 5th DCA 1992).

914. In a medical malpractice action brought by a convicted sexual predator against a doctor alleging that the doctor negligently performed examination of the sexual predator’s victim, the trial court order denying doctor attorney fees was reversed because under Fla. Stat. § 57.105, the doctor was entitled to attorney fees where there was a complete absence of a justiciable issue of either law or fact, and the sexual predator’s suit was completely untenable. Boczar v. Glendening, 555 So. 2d 1286, 1990 Fla. App. LEXIS 244 (Fla. 2nd DCA 1990).

915. Awarding attorney’s fees to the prevailing plaintiff lessee against defendant lessor, who wrongfully repossessed a vessel and personal property thereon, was improper under Fla. Stat. § 57.105 because defendant’s position on the distinct issue of malice or reckless disregard in an intentional tort claim was not frivolous and was arguably both factual and legal. Ciamar Marcy, Inc. v. Monteiro Da Costa, 508 So. 2d 1282, 1987 Fla. App. LEXIS 8769 (Fla. 3rd DCA 1987).

916. Defendants, a county and the state department of transportation, were not entitled to attorney fees under Fla. Stat. § 57.105 because plaintiff accident victim’s complaint alleging defendants’ negligence was neither completely untenable nor devoid of substance. Wall v. Department of Transp., 455 So. 2d 1138, 1984 Fla. App. LEXIS 15068 (Fla. 2nd DCA 1984).

917. Where a patient who experienced dangerous side effects from a prescription drug brought suit against the manufacturer for failure to warn, but the manufacturer fulfilled its obligation to warn the physician prescribing the drug, the manufacturer was not entitled to an award of attorney’s fees under Fla. Stat. § 57.105 because the complaint raised a good faith justiciable issue in law sufficient to preclude an award of attorney’s fees, even though it did not state a cause of action. Buckner v. Allergan Pharmaceuticals, Inc., 400 So. 2d 820, 1981 Fla. App. LEXIS 20444 (Fla. 5th DCA 1981).

Torts: Intentional Torts: Conversion

918. In tenants’ action alleging trespass, civil theft, and intentional infliction of emotion distress, the trial court’s fee award pursuant to Fla. Stat. § 57.105 was erroneous, where the award was based on finding a lack of justiciable issues on the emotional distress and fraud claims, which was not the correct standard. Sher v. Countrywide Home Loans, Inc., 848 So. 2d 1246, 2003 Fla. App. LEXIS 10224 (Fla. 4th DCA 2003).

Torts: Intentional Torts: Defamation: Defenses: Privileges: Absolute Privileges

919. Because statements made by a law firm in a motion to dismiss were made in the course of a judicial proceeding and therefore absolutely immune, the firm was entitled to attorney’s fees under Fla. Stat. § 57.105 for the costs of defending the underlying opponent’s libel and extortion suit. Ponzoli & Wassenberg, P.A. v. Zuckerman, 545 So. 2d 309, 1989 Fla. App. LEXIS 2055 (Fla. 3rd DCA 1989).

Torts: Intentional Torts: Defamation: Public Figures: Limited Purpose Public Figures

920. Council president was not required to pay attorney fees because a defamation claim was not so lacking in merit so as to merit the award; the fact that the president was unable to sustain his claims under the burden of proof required for a limited public figure did not mean that those claims were totally devoid of merit. There was no evidence that the president knew or should have known of his limited public figure status, and there was at least a colorable claim of malice. Wapnick v. Veterans Council of Indian River County, Inc., 123 So. 3d 622, 2013 Fla. App. LEXIS 13674 (Fla. 4th DCA 2013).

Torts: Intentional Torts: Intentional Infliction of Emotional Distress: General Overview

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921. In tenants’ action alleging trespass, civil theft, and intentional infliction of emotion distress, the trial court’s fee award pursuant to Fla. Stat. § 57.105 was erroneous, where the award was based on finding a lack of justiciable issues on the emotional distress and fraud claims, which was not the correct standard. Sher v. Countrywide Home Loans, Inc., 848 So. 2d 1246, 2003 Fla. App. LEXIS 10224 (Fla. 4th DCA 2003).

Torts: Intentional Torts: Malicious Prosecution: General Overview

922. A joint stipulation and dismissal of the bank’s suit did not bar the customer’s action because the bank presented no evidence a party should be foreclosed from bringing a malicious prosecution suit merely because the party did not move for and pursue Fla. Stat. § 57.105 fees in the first proceeding; the bank presented no evidence that there was a genuine compromise or that Fla. Stat. § 57.105 was a factor in the joint stipulation. Doss v. Bank of Am., N.A., 857 So. 2d 991, 2003 Fla. App. LEXIS 16524 (Fla. 5th DCA 2003).

923. An award of attorney’s fees to a witness under Fla. Stat. § 57.105 for failure to state a cause of action was improper where the complaint pleaded all the required elements to state a cause of action for malicious prosecution. Wright v. Yurko, 446 So. 2d 1162, 1984 Fla. App. LEXIS 12190 (Fla. 5th DCA 1984).

Torts: Intentional Torts: Malicious Prosecution: Elements: Malice

924. Trial court's finding that the construction company was entitled to reasonable legal fees was not based on substantial, competent evidence and thus constituted an abuse of discretion requiring reversal, because there was sufficient evidence to meet the requirement of legal malice for malicious prosecution. There was evidence that the company instituted a lien foreclosure action against them based on an invalid lien and persisted with the action knowing that the lien was invalid and had been released at the demand of the Department of Business and Professional Regulation. MacAlister v. Bevis Constr., Inc., 164 So. 3d 773, 2015 Fla. App. LEXIS 7955 (Fla. 2nd DCA 2015).

Torts: Malpractice & Professional Liability: Healthcare Providers

925. In a strict liability action against a hospital, where the hospital was the prevailing party, an award of attorney fees to the hospital under Fla. Stat. § 766.104(1) and Fla. Stat. § 766.206(2) was reversed because the statutes applied only to medical negligence actions and not to strict liability actions. The trial court specifically declined to make any finding whether there was a complete absence of a justiciable issue, warranting attorney fees under Fla. Stat. § 57.105, and the appellate court could not make such a finding in the first instance on appeal. Kurzweil v. Larkin Hosp. Operating Co., 684 So. 2d 901, 1996 Fla. App. LEXIS 13374 (Fla. 3rd DCA 1996).

926. In a strict liability action against a hospital for negligent breast implants, where the hospital was the prevailing party, an awrd of attorney fees to the hospital under Fla. Stat. §§ 766.104(1) and 766.206(2) was reversed because the statutes applied only to medical negligence actions and not to strict liability actions. The trial court specifically declined to make any finding whether there was a complete absence of a justiciable issue, warranting attorney fees under Fla. Stat. § 57.105, and the appellate court could not make such a finding in the first instance on appeal. Kurzweil v. Larkin Hosp. Operating Co., 684 So. 2d 901, 1996 Fla. App. LEXIS 13374 (Fla. 3rd DCA 1996).

Torts: Negligence: General Overview

927. Couple who were legally stopped at a yield sign and who were struck from behind and subsequently sued for negligence by the driver who struck them were entitled to attorneys fees because the negligence action was so clearly devoid of merit on both facts and law as to be completely untenable. Davis v. Christmas, 705 So. 2d 38, 1997 Fla. App. LEXIS 13365 (Fla. 3rd DCA 1997).

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Trademark Law: Special Marks: Service Marks: General Overview

928. The trial court’s award of attorney’s fees under Fla. Stat. § 57.105 in a service mark infringement suit on the ground that the defenses raised no justiciable issue of either law or fact was improperly assessed, because the opposing party was without notice and opportunity for a hearing, and the request for costs was presented after the conclusion of the trial. Staff v. Trafalgar Developers of Florida, Inc., 518 So. 2d 981, 1988 Fla. App. LEXIS 213 (Fla. 2nd DCA 1988).

Workers' Compensation & SSDI: Administrative Proceedings: Claims: Time Limitations: General Overview

929. Claimant and her counsel were ordered to show cause why sanctions should not have been entered against them under Fla. Stat. § 57.105(1), (2), and Fla. R. App. P. 9.410(a) because the claimant’s argument that, as the Judge of Compensation Claims (JCC) could have modified a November 2009 order, there was a fact issue that precluded the employer’s statute of limitations defense, was frivolous; the claimant never filed a motion for modification of the order, her argument that the November, 2009 order could have been modified was theoretical and had no meaningful applicability, and, even if the claimant’s arguments to the JCC in December 2011 constituted an application for modification of the 2009 order, such a request would have been untimely under Fla. Stat. § 440.28. Even if the claimant had timely filed a petition for modification of the 2009 order, her argument that the 2009 order could have been “modified” under the facts presented was misguided, ill-defined, and woefully incomplete. Miranda v. Bridge, 112 So. 3d 500, 2012 Fla. App. LEXIS 16704 (Fla. 1st DCA 2012).

Workers' Compensation & SSDI: Administrative Proceedings: Costs & Attorney Fees

930. While a Judge of Compensation Claims (JCC) properly denied an award of attorney's fees as not applicable to original proceedings in workers' compensation claims, the JCC applied an improper standard in determining that a videographer's costs were taxable because the JCC did not consider the reasonableness of the employee's strategic decision to videotape the testimony of adverse witnesses who might later testify and be cross-examined using the videotaped depositions. Lane v. Workforce Bus. Servs., 151 So. 3d 537, 2014 Fla. App. LEXIS 18441 (Fla. 1st DCA 2014).

931. Where a party asserts a good faith attempt to change an existing rule of law, that party is not subject to attorney fees under Fla. Stat. § 57.105. Vasquez v. Provincial S., Inc., 795 So. 2d 216, 2001 Fla. App. LEXIS 13458 (Fla. 4th DCA 2001).

932. Purpose of Fla. Stat. § 57.105 is to discourage baseless claims, stonewall defenses, and sham appeals in civil litigation by placing a price tag through attorney’s fees awards on losing parties who engage in these activities. Florida favors access to the courts and has interpreted chapter 57.105 to provide a remedy only where the plaintiff’s complaint is completely untenable; an award is not appropriate as long as the complaint alleges some justiciable issue. Vasquez v. Provincial S., Inc., 795 So. 2d 216, 2001 Fla. App. LEXIS 13458 (Fla. 4th DCA 2001).

933. Attorney fees are awarded under Fla. Stat. § 57.105 where there is a total or absolute lack of justifiable issues of law or fact, this being tantamount to a find that the action is frivolous or completely untenable. The statute requires an explicit finding by the trial court that there was a complete absence of a justiciable issue of law or fact and there must be a finding on the record, supported by substantial competent evidence, in order for the trial court to award attorney’s fees and costs. Vasquez v. Provincial S., Inc., 795 So. 2d 216, 2001 Fla. App. LEXIS 13458 (Fla. 4th DCA 2001).

934. In a worker’s compensation action, the trial court erroneously awarded costs and fees to an employer under Fla. Stat. § 57.105 because the employee’s argument upon which his negligence claim was based was a good faith attempt to change existing law and was not frivolous or untenable. Vasquez v. Provincial S., Inc., 795 So. 2d 216, 2001 Fla. App. LEXIS 13458 (Fla. 4th DCA 2001).

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Notes to Unpublished Decisions

Banking Law: Federal Deposit Insurance Corporation: Deposit Insurance

Bankruptcy Law: Practice & Proceedings: General Overview

Civil Procedure: Remedies: Costs & Attorney Fees: Attorney Expenses & Fees: General Overview

Civil Procedure: Remedies: Costs & Attorney Fees: Attorney Expenses & Fees: Statutory Awards

Civil Procedure: Sanctions: Baseless Filings: Frivolous Lawsuits

Contracts Law: Sales of Goods: Auction Sales

Banking Law: Federal Deposit Insurance Corporation: Deposit Insurance

935. Unpublished decision: Because the contractual fee provisions in plaintiff developer’s Note and Mortgage would not permit defendant FDIC (or the failed bank) to recover attorneys’ fees in the developer’s case for repudiation damages under the Financial Institution Reform, Recovery, and Enforcement Act of 1989, the developer could not, pursuant to Fla. Stat. § 57.105(7), recover fees under those provisions. Placida Prof'l Ctr., LLC v. FDIC, 512 Fed. Appx. 938, 2013 U.S. App. LEXIS 4999 (11th Cir. Fla. 2013).

Bankruptcy Law: Practice & Proceedings: General Overview

936. Unpublished decision: Bankruptcy court denied a Chapter 13 debtor’s motion seeking attorney’s fees she incurred to oppose a bank’s objection to valuations she placed on real property and the bank’s claim that she was not eligible under 11 U.S.C.S. § 109(e) to seek relief under Chapter 13. The debtor did not set forth a claim for attorney’s fees in a pleading seeking affirmative relief until after the parties settled the valuation issues, which deprived the bank of the opportunity to include the attorney’s fee dispute in the settlement negotiations, and the debtor’s request for attorney’s fees pursuant to Fla. Stat. § 57.105(7) was untimely and did not give proper notice to the bank prior to the settlement. In re Brito, 2013 Bankr. LEXIS 2166 (Bankr. S.D. Fla. 2013).

Civil Procedure: Remedies: Costs & Attorney Fees: Attorney Expenses & Fees: General Overview

937. Unpublished decision: In plaintiff’s breach of contract action based on defendants’ failure to pay the bidder’s premium on a sale of auctioned property that never closed, defendant was entitled to attorney’s fees under Fla. Stat. § 57.105(7) after being granted summary judgment because the “legal fees” provision in the bidder identification stub fell within the statutory language that permitted reciprocal recovery. High Bid, LLC v. Everett, 522 Fed. Appx. 688, 2013 U.S. App. LEXIS 13053 (11th Cir. Fla. 2013).

Civil Procedure: Remedies: Costs & Attorney Fees: Attorney Expenses & Fees: Statutory Awards

938. Unpublished decision: Borrowers were entitled to receive attorneys' fees under this statute because they prevailed when the district court dismissed the case against them, and the note and mortgage at issue provided that the holder/lender would be entitled to “reasonable attorneys' fees” incurred in enforcing those agreements. Sequoia Fin. Solutions, Inc. v. Warren, 660 Fed. Appx. 725, 2016 U.S. App. LEXIS 15078 (11th Cir. Fla. 2016).

939. Unpublished decision: Bankruptcy court denied a Chapter 13 debtor’s motion seeking attorney’s fees she incurred to oppose a bank’s objection to valuations she placed on real property and the bank’s claim that she was not eligible under 11 U.S.C.S. § 109(e) to seek relief under Chapter 13. The debtor did not set forth a claim for attorney’s fees in a pleading seeking

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affirmative relief until after the parties settled the valuation issues, which deprived the bank of the opportunity to include the attorney’s fee dispute in the settlement negotiations, and the debtor’s request for attorney’s fees pursuant to Fla. Stat. § 57.105(7) was untimely and did not give proper notice to the bank prior to the settlement. In re Brito, 2013 Bankr. LEXIS 2166 (Bankr. S.D. Fla. 2013).

940. Unpublished decision: Because the contractual fee provisions in plaintiff developer’s Note and Mortgage would not permit defendant FDIC (or the failed bank) to recover attorneys’ fees in the developer’s case for repudiation damages under the Financial Institution Reform, Recovery, and Enforcement Act of 1989, the developer could not, pursuant to Fla. Stat. § 57.105(7), recover fees under those provisions. Placida Prof'l Ctr., LLC v. FDIC, 512 Fed. Appx. 938, 2013 U.S. App. LEXIS 4999 (11th Cir. Fla. 2013).

941. Unpublished decision: While plaintiff bank’s judgment for money damages against defendant mortgagor was reversed because the mortgagor had not signed the promissory note, that claim arose from the default on the mortgage for which foreclosure was proper, thus, it was not separate and distinct for the mortgagor to be entitled to attorney’s fees under Fla. Stat. 57.105(7). Flagstar Bank, FSB v. Hochstadt, 476 Fed. Appx. 371, 2012 U.S. App. LEXIS 8432 (11th Cir. Fla. 2012).

Civil Procedure: Sanctions: Baseless Filings: Frivolous Lawsuits

942. Unpublished decision: Sanctions were properly imposed because the complaint did not present a good faith attempt to change an existing rule of law but asserted a frivolous theory that had been repeatedly rejected, the sanctionable conduct encompassed continuing pursuit of the frivolous theory, and there was sufficient evidence to find sanctions appropriate. Gonzalez v. Mortg. Elec. Registration Sys., 2014 U.S. App. LEXIS 22768 (Dec. 4, 2014).

Contracts Law: Sales of Goods: Auction Sales

943. Unpublished decision: In plaintiff’s breach of contract action based on defendants’ failure to pay the bidder’s premium on a sale of auctioned property that never closed, defendant was entitled to attorney’s fees under Fla. Stat. § 57.105(7) after being granted summary judgment because the “legal fees” provision in the bidder identification stub fell within the statutory language that permitted reciprocal recovery. High Bid, LLC v. Everett, 522 Fed. Appx. 688, 2013 U.S. App. LEXIS 13053 (11th Cir. Fla. 2013).

Opinion Notes

LexisNexis ® Notes

OPINIONS OF ATTORNEY GENERAL

1. A county is under no requirement to pay the attorney’s fees of a citizen who successfully sued the county pursuant to section 163.3215, Florida Statutes. Generally, the payment of attorney’s fees not required by statute, rule or contract would not appear to constitute an appropriate expenditure of county funds, although there may be instances where an action brought by a citizen to challenge an invalid action by the county could serve a county purpose. The determination of whether the expenditure of county funds serves a county purpose, however, is one that is within the exclusive providence of the board of county commissioners, as the legislative body for the county. AGO 2005-39, 2005 Fla. AG LEXIS 45.

2. The Department of Children and Families may not lawfully pay the attorney’s fees incurred by a respondent to a dependency petition filed by the department pursuant to Part II, Chapter 39, Florida Statutes (Fla. Stat. § 39.201 et seq.) when the respondent prevailed but there was no request for attorney’s fees made during the pendency of the case, there was no court order directing the department to make such payments, and the case has become final with no issues pending before any court.

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AGO 1998-18, 1998 Fla. AG LEXIS 16.

3. As a prerequisite to an award of attorney’s fees under Fla. Stat. § 57.105, the statute requires the court to find “a complete absence of a justiciable issue of either law or fact raised by the losing party.” AGO 1998-18, 1998 Fla. AG LEXIS 16.

4. The purpose of Fla. Stat. § 57.105 is to discourage baseless claims, stonewall defenses, and sham appeals in civil litigation. AGO 1998-18, 1998 Fla. AG LEXIS 16.

Research References & Practice Aids

LexisNexis ® Notes

RESEARCH REFERENCES & PRACTICE AIDS

Florida Statutes references.

1. Chapter 61. Dissolution of Marriage; Support; Time-Sharing, F.S. § 61.16. Attorney’s fees, suit money, and costs.

2. Chapter 68. Miscellaneous Proceedings, F.S. § 68.093. Florida Vexatious Litigant Law.

3. Chapter 120. Administrative Procedure Act, F.S. § 120.595. Attorney’s fees.

4. Chapter 192. Taxation: General Provisions, F.S. § 192.0105. Taxpayer rights.

5. Chapter 213. State Revenue Laws: General Provisions, F.S. § 213.015. Taxpayer rights.

6. Chapter 409. Social and Economic Assistance, F.S. § 409.2567. Services to individuals not otherwise eligible.

7. Chapter 429. Assisted Care Communities, F.S. § 429.87. Civil actions to enforce rights.

8. Chapter 742. Determination of Parentage, F.S. § 742.045. Attorney’s fees, suit money, and costs.

9. Chapter 742. Determination of Parentage, F.S. § 742.08. Default of support payments.

Florida Court Rules references.

1. Florida Family Law Rules of Procedure, Rule 12.285. Mandatory Disclosure.

Florida Administrative Code references.

1. Chapter 12E-1 Child Support Enforcement Program Office, F.A.C. 12E-1.003 Conditions of Eligibility.

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2. Chapter 12E-1 Child Support Enforcement Program Office, F.A.C. 12E-1.004 Application for Services, Application Forms and Fee.

Law Reviews & Journals

1. 2000 Real Property, Ronald Benton Brown and Joseph M. Grohman, Fall 2000, 25 Nova L. Rev. 115.

2. 2005-08 Survey of Florida Law Affecting Business Owners, Barbara Landau, Fall 2008, 33 Nova L. Rev. 81.

3. 2005-2006 Survey of Florida Juvenile Law, Michael J. Dale, Summer 2007, 31 Nova L. Rev. 577.

4. 2006-2007 Survey of Florida Law Affecting Business Owners, Barbara Landau, Fall 2007, 32 Nova L. Rev. 21.

5. The 2001 Community Associations: Statutory Changes and Appellate Law 7/1/00-6/30/01, Joseph E. Adams, Fall 2001, 26 Nova L. Rev. 1.

6. Community Associations: 1996 Survey of Florida Law, Joseph E. Adams, Fall 1996, 21 Nova L. Rev. 69.

7. Constitutional Stumbling Blocks To Legislative Tort Reform, Kenneth Vinson, Spring 1987, 15 Fla. St. U.L. Rev. 31.

8. Elder Law Symposium: The Nursing Home Residents’ Rights Act — A Good Idea Gone Bad!, Troy J. Crotts, Daniel A. Martinez, Winter 1996, 26 Stetson L. Rev. 599.

9. Estates, Trusts, and Guardianships: 1998 Survey of Florida Law, Michael D. Simon and William T. Hennessey, Fall 1998, 23 Nova L. Rev. 119.

10. Florida Mediation Case Law: Two Decades Of Maturation, Fran L. Tetunic, Fall 2003, 28 Nova L. Rev. 87.

11. Florida’s Equal Access To Justice Act: How The Courts and DOAH Have Interpreted It, Mary W. Chaisson, Winter 1992, 19 Fla. St. U.L. Rev. 901.

12. Florida’s Vexatious Litigant Law: An End To the Pro Se Litigant’s Courtroom Capers?, Deborah L. Neveils, Fall 2000, 25 Nova L. Rev. 343.

13. Insurance Claims Fraud Problems And Remedies, Robert W. Emerson, March 1992, 46 U. Miami L. Rev. 907.

14. Medical Malpractice In Florida: Prescription for Change, B. Richard Young, Winter 1983, 10 Fla. St. U.L. Rev. 593.

15. Personal Property Leasing In Florida: Moving 2A Uniform Treatment, James E. Foster and David G. Shields, Winter 1991, 18 Fla. St. U.L. Rev. 295.

16. Perspectives On Florida’s Tort Reform: Some Defense Perspectives on The Tort Reform Act of 1999, Jack W. Shaw, Jr., Fall 1999, 12 St. Thomas L. Rev. 191.

17. Professional Responsibility: 1998 Survey of Florida Law, Timothy P. Chinaris and Elizabeth Clark Tarbert, Fall 1998, 23 Nova L. Rev. 161.

18. Professional Responsibility: 1996 Survey of Florida Law, Timothy P. Chinaris, Fall 1996, 21 Nova L. Rev. 231.

19. Professional Responsibility of Appellate Advocates, Raymond T. Elligett, Jr. and John M. Scheb, Spring / Summer 1999, 1 Fl. Coastal L.J. 101.

20. Property Law: 1996 Survey of Florida Law, Ronald Benton Brown and Joseph M. Grohman, Fall 1996, 21 Nova L. Rev. 279.

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21. Property Law: 1998 Survey of Florida Law, Ronald Benton Brown and Joseph M. Grohman, Fall 1998, 23 Nova L. Rev. 229.

22. Property Law: 1995 Survey of Florida Law, Ronald Benton Brown and Joseph M. Grohman and Manuel R. Valcarcel, IV, Fall 1995, 20 Nova L. Rev. 257.

23. Recent Development: Civil Procedure: Sanctions, Jay Daigneault, Spring 2006, 35 Stetson L. Rev. 1103.

24. Recent Development: First Amendment: Adult Business Use: Attorney Fees, Robyn Marie Severs, Winter 1998, 27 Stetson L. Rev. 1001.

25. Recent Development: Police: Forfeiture, Philip McCormick, Winter 2006, 35 Stetson L. Rev. 730.

26. Review Of Florida Legislation; Florida’s Tort Reform: Response To a Persistent Problem, Pamela Burch Fort, Theodore G. Granger, Ricky L. Polston, and Sheri L. Wilkes, Fall 1986, 14 Fla. St. U.L. Rev. 505.

27. Review of Florida Legislation; Silencing Slapps: An Examination Of Proposed Legislative Remedies and a “Solution” For Florida, Laura J. Ericson-Siegel, Fall 1992, 20 Fla. St. U.L. Rev. 487.

28. Summary Judgment in Florida: The Road Less Traveled, Leonard D. Pertnoy, Fall 2007, 20 St. Thomas L. Rev. 69.

29. A Survey of Employment Contract Law in Florida: An Analysis Of the Applications of Employment Contracts to the Interests of Employers and Employees, Ronald E. Jolles, Summer 1993, 21 Fla. St. U.L. Rev. 167.

30. Symposium Article: Waiting For The Go: Concurrency, Takings, And the Property Rights Act, Brenna Durden, David Layman, Sid Ansbacher, Winter 1996, 20 Nova L. Rev. 661.

31. Torts: 1995 Survey of Florida Law, Scott A. Mager, Fall 1995, 20 Nova L. Rev. 363.

Treatises

1. Attorney’s Fees in Florida, What’s New, Scope.

2. Attorney’s Fees in Florida, Chapter 1 Procedure, § 1.01 Pleadings and Motions.

3. Attorney’s Fees in Florida, Chapter 1 Procedure, § 1.02 Counterclaim, Cross-Claims, Third-Party Actions; Set-Off.

4. Attorney’s Fees in Florida, Chapter 1 Procedure, § 1.03 Discovery/Mediation.

5. Attorney’s Fees in Florida, Chapter 1 Procedure, § 1.06 Fla. R. CIV. P. 1.525—When the Trial Court Should Hear the Issue of Attorney’s Fees; Jurisdiction to Hear Attorney’s Fees Cases.

6. Attorney’s Fees in Florida, Chapter 1 Procedure, § 1.08 Appellate Attorney’s Fees.

7. Attorney’s Fees in Florida, Chapter 2 Jurisdiction, § 2.01 Does Trial Court Retain Jurisdiction to Award Attorney’s Fees After the Case Has Been Dismissed or Settled?

8. Attorney’s Fees in Florida, Chapter 2 Jurisdiction, § 2.02 Does Trial Court Have Jurisdiction to Award Attorney’s Fees?

9. Attorney’s Fees in Florida, Chapter 2 Jurisdiction, § 2.03 Appeal.

10. Attorney’s Fees in Florida, Chapter 2 Jurisdiction, § 2.05 Miscellaneous.

11. Attorney’s Fees in Florida, Chapter 3 Prevailing Party, § 3.01 Prevailing Party on Procedural Issues.

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12. Attorney’s Fees in Florida, Chapter 3 Prevailing Party, § 3.02 Did Plaintiff or Defendant Prevail?

13. Attorney’s Fees in Florida, Chapter 3 Prevailing Party, § 3.03 Is Party That Prevailed Entitled to Attorney’s Fees?

14. Attorney’s Fees in Florida, Chapter 4 Offer of Judgment/Settlement, § 4.01 Fla. Stat. § 768.79 (1990)—Offer of Judgment and Demand for Judgment.

15. Attorney’s Fees in Florida, Chapter 4 Offer of Judgment/Settlement, § 4.09 Settlement.

16. Attorney’s Fees in Florida, Chapter 5 Evidence, § 5.02 Burden of Proof/Evidence.

17. Attorney’s Fees in Florida, Chapter 5 Evidence, § 5.03 Billable Time Records/Other Evidence.

18. Attorney’s Fees in Florida, Chapter 5 Evidence, § 5.04 Necessity of Attorney for Party Seeking Attorney’s Fees to Personally Testify Regarding Issue of Attorney’s Fees.

19. Attorney’s Fees in Florida, Chapter 5 Evidence, § 5.05 Expert Testimony Regarding Attorney’s Fees.

20. Attorney’s Fees in Florida, Chapter 6 Entitlement, § 6.06 Liability for Attorney’s Fees.

21. Attorney’s Fees in Florida, Chapter 6 Entitlement, § 6.07 Future or Postjudgment Attorney’s Fees.

22. Attorney’s Fees in Florida, Chapter 6 Entitlement, § 6.08 Arbitration.

23. Attorney’s Fees in Florida, Chapter 6 Entitlement, § 6.09 Miscellaneous.

24. Attorney’s Fees in Florida, Chapter 7 Calculating Attorney’s Fees, § 7.01 Lodestar.

25. Attorney’s Fees in Florida, Chapter 7 Calculating Attorney’s Fees, § 7.06 Procedure/Evidence.

26. Attorney’s Fees in Florida, Chapter 7 Calculating Attorney’s Fees, § 7.10 Calculating Attorney’s Fees in Complex Litigation.

27. Attorney’s Fees in Florida, Chapter 7 Calculating Attorney’s Fees, § 7.11 Attorney’s Fees for Litigating Issue of Attorney’s Fees/Costs.

28. Attorney’s Fees in Florida, Chapter 7 Calculating Attorney’s Fees, § 7.12 Costs and Interest.

29. Attorney’s Fees in Florida, Chapter 8 Constitutionality of Various Attorney’s Fees Statutes, § 8.06 Retroactivity of Attorney’s Fees Statutes.

30. Attorney’s Fees in Florida, Chapter 9 Sanctions, § 9.01 Fla. Stat. § 57.105 (1999) Sanctions for Raising Unsupported Claims or Defenses; Damages for Delay of Litigation.

31. Attorney’s Fees in Florida, Chapter 9 Sanctions, § 9.02 Fla. Stat. § 57.105(1) (1995).

32. Attorney’s Fees in Florida, Chapter 9 Sanctions, § 9.03 Frivolousness in Administrative Hearings.

33. Attorney’s Fees in Florida, Chapter 9 Sanctions, § 9.05 Inherent Authority of the Court.

34. Attorney’s Fees in Florida, Chapter 9 Sanctions, § 9.07 Fla. R. App. P. 9.410.

35. Attorney’s Fees in Florida, Chapter 10 Attorney-Client Attorney’s Fees Disputes, § 10.06 Attorney’s Contract with His Client—Quantum Meruit.

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36. Attorney’s Fees in Florida, Chapter 10 Attorney-Client Attorney’s Fees Disputes, § 10.10 Ethics.

37. Attorney’s Fees in Florida, SC-1 Significant Cases, 2006 Significant Cases, VI. Offer of Judgment.

38. Attorney’s Fees in Florida, SC-1 Significant Cases, 2005 Significant Cases, XI. Sanctions.

39. Attorney’s Fees in Florida, SC-1 Significant Cases, 2004 Significant Cases, III. Family Law Cases.

40. Attorney’s Fees in Florida, SC-1 Significant Cases, 2004 Significant Cases, VII. Sanctions.

41. Attorney’s Fees in Florida, SC-1 Significant Cases, 2003 Significant Cases, IV. Evidence.

42. Attorney’s Fees in Florida, SC-1 Significant Cases, 2003 Significant Cases, IX. Sanctions.

43. Attorney’s Fees in Florida, SC-1 Significant Cases, 2002 Significant Cases, V. Sanctions.

44. Attorney’s Fees in Florida, SC-1 Significant Cases, 2002 Significant Cases, VI. Miscellaneous.

45. Attorney’s Fees in Florida, C1 Attorney’s Fees Checklist, I. Jurisdiction of Court to Award Attorney’s Fees.

46. Attorney’s Fees in Florida, F-1 Forms, Scope.

47. Florida Civil Procedure, Chapter 1. Actions; Pre-Filing Considerations, § 1-2. Pre-Filing Considerations.

48. Florida Civil Procedure, Chapter 7. Pleadings and Motions, § 7-5. Pleading Special Matters.

49. Florida Civil Procedure, Chapter 7. Pleadings and Motions, § 7-9. Sham Pleadings.

50. Florida Civil Procedure, Chapter 7. Pleadings and Motions, § 7-12. Forms.

51. Florida Civil Procedure, Chapter 7. Pleadings and Motions, § 7-13. Forms.

52. Florida Civil Procedure, Chapter 8. Counterclaims, Crossclaims and Third-Party Practice, § 8-6. Forms.

53. Florida Civil Procedure, Chapter 13. Privileges, § 13-4. Work Product.

54. Florida Civil Procedure, Chapter 20. Dismissal of Actions, § 20-2. Involuntary Dismissals.

55. Florida Civil Procedure, Chapter 20. Dismissal of Actions, § 20-3. Costs on Dismissal.

56. Florida Civil Procedure, Chapter 21. Trials, § 21-5. Proposals for Settlement.

57. Florida Civil Procedure, Chapter 23. Defaults, § 23-2. Final Judgments After Default.

58. Florida Civil Procedure, Chapter 24. Judgments and Post-Trial Motions, § 24-5. Motion for Costs and Attorneys’ Fees.

59. Florida Civil Procedure, Chapter 24. Judgments and Post-Trial Motions, § 24-6. Interest.

60. Florida Civil Procedure, Chapter 31. Appeals, § 31-4. Appellate Provisions.

61. Florida Commercial Landlord Tenant Law, Chapter 9 Attorney’s Fees, Damages and Specific Performance, § 9.01 Attorney’s Fees.

62. Florida Condominium Law, Chapter 12. Litigation Issues and Problems, § 12.04 Attorney’s Fees.

63. Florida Evidence Manual, Chapter 1 General Provisions, § 90.102.01 Text of the Rule and Analysis.

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64. Florida Family Law, Division IV Dissolution of Marriage, Chapter 32 Parental Responsibility and Timesharing, Part I. Legal Background, E. Procedure for Obtaining Adjudication or Alternative Dispute Resolution of Parental Responsibility and Timesharing, § 32.40 In Marital Dissolution Action.

65. Florida Family Law, Division IV Dissolution of Marriage, Chapter 37 Attorneys’ Fees and Costs, A. Attorneys’ Fees, 3. Court-Awarded Fees, § 37.21 Jurisdiction to Award.

66. Florida Family Law, Division IV Dissolution of Marriage, Chapter 37 Attorneys’ Fees and Costs, A. Attorneys’ Fees, 3. Court-Awarded Fees, § 37.22 Criteria for Award Pursuant to Specific Statutes.

67. Florida Family Law, Division IV Dissolution of Marriage, Chapter 57 Financial Disclosure, Part I. Legal Background, A. Mandatory Disclosure Requirements, § 57.01 Scope and Applicability of Disclosure Requirements.

68. Florida Family Law, Division IV Dissolution of Marriage, Chapter 73 Enforcement of Foreign Property and Support Judgments, Part I. Legal Background, C. Methods of Enforcement, 2. Uniform and Federal Acts, § 73.31 Uniform Interstate Family Support Act.

69. Florida Family Law, Division V Parent-Child Relationships, Chapter 90 Paternity, Part I. Legal Background, B. Establishing Paternity in Paternity Proceeding, § 90.27 Award of Attorneys’ Fees and Costs of Proceedings.

70. Florida Probate Code Manual, Chapter 15 Compensation, § 15.02 When Attorney’s Fees May be Awarded.

71. Florida Real Estate Transactions, Part I. The Sales Contract, Chapter 4. Additional Clauses, § 4.05 Attorneys’ Fees and Costs.

72. Florida Real Estate Transactions, Part VII. Landlord and Tenant, Chapter 52. Residential Landlord-Tenant Litigation and Procedure, § 52.20 Noncompliance with Residential Act or Rental Agreement.

73. Florida Real Estate Transactions, Part XI. Real Estate Development, Subpart 1. Construction, § 182.62 Costs and Attorneys’ Fees.

74. Florida Torts, II. Actions Based on Intentional Conduct, Chapter 21 False Imprisonment and False Arrest, A. False Imprisonment Issues Generally, § 21.05 Damages.

75. Florida Torts, II. Actions Based on Intentional Conduct, Chapter 22 Malicious Prosecution and Abuse of Process, A. Malicious Prosecution, § 22.01 Nature of Cause of Action.

76. Florida Torts, II. Actions Based on Intentional Conduct, Chapter 26 Fraud, I. Legal Background, B. Related Causes of Action, § 26.35 Attorneys’ Fees and Costs.

77. Florida Torts, II. Actions Based on Intentional Conduct, Chapter 29 Trade Libel and Slander of Title, § 29.04 Defenses.

78. Florida Torts, II. Actions Based on Intentional Conduct, Chapter 30 Employment-Related Torts, III. Forms, A. Plaintiff’s Pleadings, § 30.200 Complaint for Employee’s Work-Related Injury or Death.

79. Florida Torts, II. Actions Based on Intentional Conduct, Chapter 30 Employment-Related Torts, III. Forms, A. Plaintiff’s Pleadings, § 30.201 Complaint for Independent Contractor’s Work-Related Injury or Death.

80. Florida Torts, II. Actions Based on Intentional Conduct, Chapter 30 Employment-Related Torts, III. Forms, A. Plaintiff’s Pleadings, § 30.202 Complaint for Interference with Employment Contract.

81. Florida Torts, II. Actions Based on Intentional Conduct, Chapter 30 Employment-Related Torts, III. Forms, A. Plaintiff’s Pleadings, § 30.203 Complaint for Wrongful Discharge.

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82. Florida Torts, V. Actions Involving Specific Parties, Chapter 61 Liability of Health Care Providers, I. Legal Background, D. Damages, Attorneys’ Fees, and Costs, § 61.70 Attorneys’ Fees.

83. Florida Torts, V. Actions Involving Specific Parties, Chapter 62 Liability of Attorneys, I. Legal Background, A. Bases of Attorney Liability, § 62.03 Liability to Nonclients.

84. Florida Torts, V. Actions Involving Specific Parties, Chapter 70 Liability for Defective Products, II. Practice Guide, D. Drafting Guide, § 70.230 Drafting Complaint.

85. Florida Torts, V. Actions Involving Specific Parties, Chapter 70 Liability for Defective Products, III. Forms, § 70.300 Complaint—Products Liability Action—Strict Liability.

86. Florida Torts, VI. Remedies, Chapter 110 Damages, Interest, Costs, and Attorney’s Fees, Part I. Legal Background, C. Attorneys’ Fees, § 110.40 General Rules Pertaining to Recovery.

87. Florida Torts, VI. Remedies, Chapter 110 Damages, Interest, Costs, and Attorney’s Fees, Part I. Legal Background, C. Attorneys’ Fees, § 110.41 Statutory Authority for Award of Attorneys’ Fees.

88. Florida Torts, VI. Remedies, Chapter 110 Damages, Interest, Costs, and Attorney’s Fees, Part I. Legal Background, C. Attorneys’ Fees, § 110.47 Recovery of Attorneys’ Fees on Appeal.

89. Florida Torts, VI. Remedies, Chapter 110 Damages, Interest, Costs, and Attorney’s Fees, Part I. Legal Background, D. Interest, § 110.61 Prejudgment Interest.

90. Florida Torts, VI. Remedies, Chapter 110 Damages, Interest, Costs, and Attorney’s Fees, Part II. Practice Guide, § 110.102 Recovery of Attorneys’ Fees.

91. Foreclosures in Florida, Chapter 14. Judgment of Foreclosure and Sale of Property, § 14.02. Attorney’s Fees.

92. LexisNexis Practice Guide: Florida Civil Motion Practice, Chapter 1 Preliminary Motions, IV. Using Motions to Limit or Define Discovery Issues, § 1.18 Failure to Comply with Court Order Necessitates Motion for Sanctions.

93. LexisNexis Practice Guide: Florida Civil Motion Practice, Chapter 4 Motions to Strike, II. Making Motion to Strike, § 4.07 Grounds for Motion to Strike.

94. LexisNexis Practice Guide: Florida Civil Motion Practice, Chapter 14 Sanctions, VI. Requesting Sanctions for Not Obeying Order to Compel Discovery, § 14.26 Request Appropriate Sanctions.

95. LexisNexis Practice Guide: Florida Personal Injury, What’s New, Scope.

96. LexisNexis Practice Guide: Florida Personal Injury, Chapter 1 Initial Handling, II. Conduct Initial Interview and Case Assessment, § 1.08 Review Client Documents.

97. LexisNexis Practice Guide: Florida Personal Injury, Chapter 4 Products Liability, II. Identify Products Liability Theories, § 4.06 Determine Whether Negligence Claim Exists.

98. LexisNexis Practice Guide: Florida Personal Injury, Chapter 4 Products Liability, VI. Defend Against Claims of Product Liability, § 4.25 Assert Negligence Defenses.

99. LexisNexis Practice Guide: Florida Personal Injury, Chapter 4 Products Liability, VI. Defend Against Claims of Product Liability, § 4.26 Assert Strict Liability Defenses.

100. LexisNexis Practice Guide: Florida Personal Injury, Chapter 4 Products Liability, VI. Defend Against Claims of Product Liability, § 4.27 Assert Breach of Warranty Defenses.

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101. LexisNexis Practice Guide: Florida Personal Injury, Chapter 5 Medical Malpractice, I. Overview, § 5.02 Master Checklist.

102. LexisNexis Practice Guide: Florida Personal Injury, Chapter 5 Medical Malpractice, V. Determine Remedies, § 5.21 Checklist.

103. LexisNexis Practice Guide: Florida Personal Injury, Chapter 5 Medical Malpractice, V. Determine Remedies, § 5.27 Attorneys’ Fees Generally not Recoverable.

104. LexisNexis Practice Guide: Florida Personal Injury, Chapter 6 Nursing Home, Assisted Living, and Adult Family Care Actions, III. Suing for Violation of Assisted Living Facility Resident’s Statutory Rights, § 6.13 Determine that Violation of Bill of Rights Occurred.

105. LexisNexis Practice Guide: Florida Personal Injury, Chapter 6 Nursing Home, Assisted Living, and Adult Family Care Actions, III. Suing for Violation of Assisted Living Facility Resident’s Statutory Rights, § 6.18 Defend Claim Against Assisted Living Facility for Violation of Resident’s Rights.

106. LexisNexis Practice Guide: Florida Personal Injury, Chapter 6 Nursing Home, Assisted Living, and Adult Family Care Actions, IV. Suing for Violation of Adult Family-Care Home Resident’s Statutory Rights, § 6.23 Determine that Violation of Bill of Rights Occurred.

107. LexisNexis Practice Guide: Florida Personal Injury, Chapter 6 Nursing Home, Assisted Living, and Adult Family Care Actions, IV. Suing for Violation of Adult Family-Care Home Resident’s Statutory Rights, § 6.24 Seek Civil Remedies for Violation of Rights.

108. LexisNexis Practice Guide: Florida Personal Injury, Chapter 7 Intentional Torts, II. Establish Applicable Elements of Intentional Tort Claim, § 7.07 Establish Elements of Malicious Prosecution.

109. LexisNexis Practice Guide: Florida Personal Injury, Chapter 7 Intentional Torts, III. Select Appropriate Remedy for Intentional Tort Claim, § 7.15 Request Damages for False Imprisonment.

110. LexisNexis Practice Guide: Florida Personal Injury, Chapter 7 Intentional Torts, IV. Defend Against Intentional Tort Claim, § 7.23 Defend Against Malicious Prosecution and Abuse of Process Claims.

111. LexisNexis Practice Guide: Florida Personal Injury, Chapter 8 Governmental Liability, II. When Governmental Entities and Employees May Be Sued, § 8.09 Liability of Government Entity and Its Employee or Agent in Same Suit.

112. LexisNexis Practice Guide: Florida Personal Injury, Chapter 11 Damages, I. Overview, § 11.02 Master Checklist.

113. LexisNexis Practice Guide: Florida Personal Injury, Chapter 11 Damages, IX. Attorneys’ Fees, § 11.49 Checklist.

114. LexisNexis Practice Guide: Florida Personal Injury, Chapter 11 Damages, IX. Attorneys’ Fees, § 11.50 Entitlement to Fees is Restricted.

Practice Guides

1. LexisNexis Practice Guide: Florida Business Torts, Chapter 1 Strategy Overview, II. Litigate Business Torts Cases, § 1.06 Identify Elements of Business Torts Causes of Action.

2. LexisNexis Practice Guide: Florida Business Torts, Chapter 1 Strategy Overview, II. Litigate Business Torts Cases, § 1.07 Use of Class Actions.

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3. LexisNexis Practice Guide: Florida Business Torts, Chapter 1 Strategy Overview, II. Litigate Business Torts Cases, § 1.10 Consider Available Provisional Remedies.

4. LexisNexis Practice Guide: Florida Business Torts, Chapter 2 Unfair Trade Practices, III. Establish Claim for Unfair Trade Practices, § 2.16 Understand Elements of Claim for Unfair Trade Practices.

5. LexisNexis Practice Guide: Florida Business Torts, Chapter 2 Unfair Trade Practices, IV. Consider Class Action for Unfair Trade Practices, § 2.23 Class Action May Provide Preferable Framework for Unfair Trade Practices Claim.

6. LexisNexis Practice Guide: Florida Business Torts, Chapter 3 Antitrust, VIII. Defend Against Claims for Restraint of Trade, § 3.44 Dismiss Indirect Action Filed in Federal Court.

7. LexisNexis Practice Guide: Florida Business Torts, Chapter 4 Fraud, III. Establish Claim for Fraudulent Misrepresentation, § 4.21 Prove Defendant’s Misrepresentation Caused Plaintiff’s Damages.

8. LexisNexis Practice Guide: Florida Business Torts, Chapter 4 Fraud, V. Select Remedies for Fraud Claim, § 4.32 Attorney’s Fees Are Generally Not Available for Fraud.

9. LexisNexis Practice Guide: Florida Business Torts, Chapter 4 Fraud, VI. Defend Against Fraud Claim, § 4.34 Move to Dismiss Complaint if Elements of Fraud Not Pled with Specificity.

10. LexisNexis Practice Guide: Florida Business Torts, Chapter 5 Breach of Fiduciary or Confidential Duty, III. Determine if Relationship-Specific Principles and Duties Apply, § 5.11 Consider Principles and Duties of Fiduciary Relationships.

11. LexisNexis Practice Guide: Florida Business Torts, Chapter 6 Interference with Economic Relationships, III. Establish Claim for Interference with Contractual Relations, § 6.14 Prove Defendant’s Legal Malice in Causing Breach.

12. LexisNexis Practice Guide: Florida Business Torts, Chapter 6 Interference with Economic Relationships, III. Establish Claim for Interference with Contractual Relations, § 6.16 Prove That Plaintiff Suffered Actual Harm.

13. LexisNexis Practice Guide: Florida Business Torts, Chapter 7 Trade Secrets, II. Understand Fundamentals of Trade Secrets Law, § 7.05 Trade Secret Claim is Two-Step Process.

14. LexisNexis Practice Guide: Florida Business Torts, Chapter 7 Trade Secrets, V. Select Remedies for Misappropriation of Trade Secrets, § 7.19 Request Attorney’s Fees.

15. LexisNexis Practice Guide: Florida Business Torts, Chapter 8 Commercial Defamation, III. Establish Claim for Commercial Defamation, § 8.18 Prove Falsity of Statement.

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16. LexisNexis Practice Guide: Florida Business Torts, Chapter 8 Commercial Defamation, III. Establish Claim for Commercial Defamation, § 8.23 Prove Special Damages Proximately Caused by Defendant’s Statements.

17. LexisNexis Practice Guide: Florida Business Torts, Chapter 10 Conversion, V. Select Remedies for Conversion, § 10.31 Determine if Attorneys’ Fees Are Recoverable.

18. LexisNexis Practice Guide: Florida Business Torts, Chapter 11 Florida RICO and Civil Remedies for Criminal Practices Act, V. Defend RICO/CRCPA Actions, § 11.28 Consider Seeking Sanctions.

19. LexisNexis Practice Guide: Florida Civil Discovery, Chapter 2 Scope of Discovery, II. Obtain Discovery of Relevant Evidence, § 2.04 Seek Matter Relating to Claim or Defense of Any Party.

20. LexisNexis Practice Guide: Florida Civil Discovery, Chapter 15 Sanctions, II. Standards for Sanctions, § 15.04A Inherent Power of Court and Statutory Sanctions.

21. LexisNexis Practice Guide: Florida Contract Litigation, Chapter 1 Determining What Causes of Action Are Available for Contract Cases, II. Collecting Information, § 1.04 Obtain Information and Documents to Evaluate Potential Causes of Action and Defenses.

22. LexisNexis Practice Guide: Florida Contract Litigation, Chapter 1 Determining What Causes of Action Are Available for Contract Cases, II. Collecting Information, § 1.05 Potential Causes of Action Depend on Nature of Conduct Complained of, Relief Sought, and Governing Law.

23. LexisNexis Practice Guide: Florida Contract Litigation, Chapter 9 Seeking or Opposing Quantum Meruit or Unjust Enrichment Recovery in Contract or Contract-Related Actions, II. Seeking Quantum Meruit or Quantum Valebat Recovery in Contract Actions, § 9.09 Goods Sold and Delivered or Services Rendered Need Not Have Benefited Defendant.

24. LexisNexis Practice Guide: Florida Contract Litigation, Chapter 10 Seeking or Opposing Statutory Remedies in Contract Actions, II. Determining Whether Statutory Remedies or Civil Penalties are Available in Contract Action, § 10.04 Determine Whether Statute Regulates Contract.

25. LexisNexis Practice Guide: Florida Contract Litigation, Chapter 11 Declaratory Relief, II. Seeking or Opposing Declaratory Relief in Contract Matters, § 11.07 Prevailing Party May Recover Costs But Not Attorney’s Fees Unless Contract Provides Attorney’s Fees for Prevailing Party.

26. LexisNexis Practice Guide: Florida Contract Litigation, Chapter 12 Attacking or Defending Formation of Contract—Absence of Essential Element, VII. Challenging Existence of Contract Based on Absence of Essential Element, § 12.47 Issue May Be Resolved on Motion for Summary Judgment If Existence of Contract Is Question of Law.

27. LexisNexis Practice Guide: Florida Contract Litigation, Chapter 13 Attacking or Defending the Existence of Contract—Lack of Capacity, III. Raising Absence of Capacity to Contract in Pleadings, § 13.13 Lack of Capacity to Contract Should Be Raised as Affirmative Defense.

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28. LexisNexis Practice Guide: Florida Contract Litigation, Chapter 13 Attacking or Defending the Existence of Contract—Lack of Capacity, III. Raising Absence of Capacity to Contract in Pleadings, § 13.15 Lack of Capacity May Be Raised by Summary Judgment Motion if Incapacity Is Established.

29. LexisNexis Practice Guide: Florida Contract Litigation, Chapter 18 Seeking or Opposing Recovery as Third-Party Beneficiary of Contract, IV. Seeking Recovery as Third-Party Beneficiary, § 18.17 Five-Year Statute of Limitations Generally Applies.

30. LexisNexis Practice Guide: Florida Contract Litigation, Chapter 21 Suing or Defending Action for Breach of Contract, VII. Defend Action for Breach of Contract, § 21.46 Consider Tactics and Strategies for Defense.

31. LexisNexis Practice Guide: Florida Contract Litigation, Chapter 25 Contract for Sale of Goods—Suing or Defending Action for Breach of Contract Under Florida Commercial Code, VI. Pleading Breach of Contract for Sale of Goods, § 25.28 Complaint Must Allege Existence of Contract, Breach, and Damages.

32. LexisNexis Practice Guide: Florida Contract Litigation, Chapter 26 Contract for Sale of Goods—Seeking Remedies Under Florida Commercial Code, II. Pursuing Seller’s Self-Help Remedies for Buyer’s Breach, § 26.05 Statute of Limitations on Written Contract Is Five Years, or One Year Where Specific Performance Is Sought.

33. LexisNexis Practice Guide: Florida Pretrial Civil Procedure, Chapter 9 Counterclaims and Cross Claims, IV. Counterclaims, § 9.29 Attorneys’ Fees Available in Counterclaim.

34. LexisNexis Practice Guide: Florida Pretrial Civil Procedure, Chapter 9 Counterclaims and Cross Claims, VIII. Forms, § 9.66 Answer, Affirmative Defenses and Verified Counterclaim (Tenant and Breach of Contract).

35. LexisNexis Practice Guide: Florida Pretrial Civil Procedure, Chapter 16 Declaratory Relief, III. Procedure, § 16.19 An Award of Costs May Be Made.

36. LexisNexis Practice Guide: Florida Pretrial Civil Procedure, Chapter 20 Lis Pendens, V. Dissolve Lis Pendens Notice of Commencement, § 20.24 Checklist.

37. LexisNexis Practice Guide: Florida Pretrial Civil Procedure, Chapter 26 Damages in Contract, V. Pleading Damages in Contract in General, § 26.36 Plead Entitlement to Attorney’s Fees Generally.

38. LexisNexis Practice Guide: Florida Trial and Post-Trial Procedure, Chapter 7 Costs & Attorneys’ Fees, VI. Attorneys’ Fees, § 7.55 An Award of Fees May Be Authorized by Statute.

39. LexisNexis Practice Guide: Florida Trial and Post-Trial Procedure, Chapter 7 Costs & Attorneys’ Fees, VI. Attorneys’ Fees, § 7.59 A Trial Court May also Assess Attorneys’ Fees as a Sanction Against an Attorney or a Party for Bad Faith Conduct During the Course of Litigation.

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40. LexisNexis Practice Guide: Florida Trial and Post-Trial Procedure, Chapter 7 Costs & Attorneys’ Fees, VI. Attorneys’ Fees, § 7.63 A Trial Court May Award Fees Under Florida Statutes Section 57.105 As a Sanction for Litigation Misconduct.

41. LexisNexis Practice Guide: Florida Trial and Post-Trial Procedure, Chapter 7 Costs & Attorneys’ Fees, VI. Attorneys’ Fees, § 7.67 Attorneys’ Fees May Be Recovered in Litigation Involving a Contract if the Contract Expressly Provides for Their Recovery.

42. LexisNexis Practice Guide: Florida Trial and Post-Trial Procedure, Chapter 7 Costs & Attorneys’ Fees, VII. Procedure for Recovering Attorneys’ Fees, § 7.76 A Party Requesting Attorneys’ Fees Must Serve a Motion for Fees Within 30 Days After the Filing of the Judgment or Notice of Voluntary Dismissal.

43. LexisNexis Practice Guide: Florida Trial and Post-Trial Procedure, Chapter 10 Appeals, VII. Forms, § 10.45 Motion for Attorney’s Fees.

44. LexisNexis Practice Guide: Florida Trial and Post-Trial Procedure, Chapter 13 Proceedings in Appellate Courts, III. Standard and Scope of Review, § 13.36 Appellate Court Can Award Attorneys’ Fees.

45. LexisNexis Practice Guide: Florida Trial and Post-Trial Procedure, Chapter 13 Proceedings in Appellate Courts, III. Standard and Scope of Review, § 13.37 Appellate Court May Impose Sanctions for Violation of Appellate Rules or Frivolous or Bad Faith Filings.

Jury Instructions

1. Florida Forms of Jury Instruction, III. Tort Actions, Part B. Specific Tort Actions, Chapter 68 Malicious Prosecution and False Imprisonment, Part B. False Imprisonment, 3. Damages, § 68.60 False Imprisonment Damages (Fla. Std. Jury Instr. [Civ.] 407.10).

FLORIDA BAR PUBLICATIONS

1. Adoption, Paternity, And Other Florida Family Practice, Chapter 4. Paternity, III. Determination of Paternity, C. Proceedings Under F.S. Chapter 742, 10. Evidence, b. [§ 4.59] Discovery.

2. Adoption, Paternity, And Other Florida Family Practice, Chapter 4. Paternity, III. Determination of Paternity, C. Proceedings Under F.S. Chapter 742, 11. Trial and Judgment, e. [§ 4.76] Costs and Attorneys’ Fees.

3. Adoption, Paternity, And Other Florida Family Practice, Chapter 10. Interspousal Tort Liability, III. Specific Claims, C. [§ 10.15] Abuse of Process.

4. Adoption, Paternity, And Other Florida Family Practice, Chapter 12. Legal Effects of Cohabitation, III. Agreements Between Cohabitants, D. [§ 12.30] Checklist of Provisions for Cohabitation Agreement.

5. Adoption, Paternity, And Other Florida Family Practice, Chapter 12. Legal Effects of Cohabitation, IV. Litigation Issues, C. Attorneys’ Fees and Costs, 3. [§ 12.42] Frivolous Claims.

6. Revisiting the Standard Attorneys’ Fee and Cost Provision, by James E. Foster and Vincent Falcone, September/oOctober, 2011, 85 Fla. Bar J. 48.

7. Order in the Courts: The Ongoing Challenge of Safeguarding Against Frivolity and Extortion, By Woody Robert Clermont, September/oOctober, 2010, 84 Fla. Bar J. 66.

8. Complex Commercial Cases, Will Murphy, Hollywood, May, 2010, 84 Fla. Bar J. 6.

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9. The 2008 Amendments to the APA: The Open Government Act, by Lawrence E. Sellers, December, 2008, 82 Fla. Bar J. 43.

10. What Price Frivolity? Section 57.105 Comes to the APA, by John Rimes, January, 2008, 82 Fla. Bar J. 38.

11. Appeals of State Agency Immediate Final Orders and Emergency Suspension Orders, by Katherine E. Giddings and Todd D. Engelhardt, October, 2007, 81 Fla. Bar J. 36.

12. The Burden of Truth: Have Florida Courts Gone Far Enough in Addressing the Problem of Juror Misconduct?, by Donald A. Blackwell and Stephanie Martinez, May, 2007, 81 Fla. Bar J. 8.

13. Understanding the Art of Appellate Advocacy: Why Trial Counsel Should Engage Experienced Appellate Counsel as a Matter of Professional Responsibility and Legal Strategy, by Roberta G. Mandel, March, 2007, 81 Fla. Bar J. 45.

14. The Florida Supreme Court Dulls the Edge of Rule 1.420(E), by Marc J. Randazza, November, 2006, 80 Fla. Bar J. 39.

15. Evaluating Proviso in the State Budget: Is the Florida Legislature Complying with the Constitution?, by Marc W. Dunbar and Nelson Diaz, July/oAugust, 2006, 80 Fla. Bar J. 44.

16. Construction Arbitration: The Arbitration Process and Practice Tips for Advocates, by Christi L. Underwood, March, 2006, 80 Fla. Bar J. 16.

17. Moving for Attorneys’ Fees and Costs: Do It Right and Do It on Time, by Jeffrey M. James, January, 2006, 80 Fla. Bar J. 18.

18. Entitlement to Attorneys’ Fees Under FDUTPA, by David J. Federbush, January, 2004, 78 Fla. Bar J. 26.

19. Distinguishing the Difference, by Judge Amy Karan, Lauren Lazarus, December, 2003, 77 Fla. Bar J. 31.

20. Trial Lawyers Forum: Motions to Strike Sham Pleadings and Summary Judgment Motions: Is There a Difference?, by Sean R. Santini, October, 2003, 77 Fla. Bar J. 52.

21. Administrative Law: The 2003 Amendments to the Florida APA, by Lawrence E. Sellers, Jr., October, 2003, 77 Fla. Bar J. 74.

22. New § 57.105 Lawyer Sanctions, Our Ethics, and the Florida Constitution—Recent Developments and a Respectful Dissent, by John P. Fenner, May, 2003, 77 Fla. Bar J. 26.

23. Counsel Beware—Considerations Before Implementing Florida’s Civil Theft Statute, by Mark R. Osherow, March, 2003, 77 Fla. Bar J. 28.

24. General Practice, Solo and Small Firm: Arbitration and Attorneys’ Fees: A Pandora’s Box, by Frank Nussbaum and Meah Rothman Tell, October, 2002, 76 Fla. Bar J. 77.

25. Section 57.105’S New Look: The Florida Legislature Encourages Courts to Sanction Unsupported Claims and Dilatory Actions, by Gary S. Gaffney and Scott A. Mager, April, 2002, 76 Fla. Bar J. 8.

26. Appellate Practice and Advocacy: Attorneys’ Fees on Appeal: Basic Rules and New Requirements, by Tracy Raffles Gunn, April, 2002, 76 Fla. Bar J. 31.

27. Appellate Practice and Advocacy: Tell the Truth, by Raymond T. (Tom) Elligett, Jr., and Judge John M. Scheb, December, 2001, 75 Fla. Bar J. 38.

28. Real Property, Probate and Trust Law: Land Mines and Other Surprises in Residential Landlord and Tenant Cases, by Judge S. Sue Robbins, December, 2001, 75 Fla. Bar J. 42.

29. Trial Lawyers Forum: Pleading Requirements for a Claim for Attorneys’ Fees, by Gerald W. Pierce, July/oAugust, 2000, 74 Fla. Bar J. 36.

30. Trial Lawyers Forum: Florida Tort Reform — 1999, By Walter G. Latimer, November, 1999, 73 Fla. Bar J. 56.

31. Appellate Practice and Advocacy: Parties on Appeal, by Raymond T. Elligett, Jr., and Judge John M. Scheb, May, 1999, 73 Fla. Bar J. 40.

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32. The Duty to Warn—A Matter of Reasonableness, Not Arbitrariness, By Larry S. Stewart, April, 1999, 73 Fla. Bar J. 55.

33. General Practice: Arbitration and Attorneys’ Fees Issues: An Attorney’s and Arbitrator’s Viewpoint, By Frank Nussbaum, November, 1998, 72 Fla. Bar J. 70.

34. Homestead — The Post-Death Spousal Disclaimer: A Cure for a Constitutionally Prohibited Devise?, By R. Craig Harrison, April, 1996, 70 Fla. Bar J. 42.

35. Florida Civil Practice Before Trial, 1- Attorney-Client Relationship, IV. Attorneys’ Fees and Expenses, D. [§ 1.32] Statutory Fees.

36. Florida Civil Practice Before Trial, 1- Attorney-Client Relationship, VI. Attorney’s Authority, B. Over Litigation, 2. [§ 1.48] Matters of Procedure.

37. Florida Civil Practice Before Trial, 2- Organization and Development of the Case, I. Introduction, C. [§ 2.3] Attorney’s Responsibility and Objective in Organizing and Developing Case.

38. Florida Civil Practice Before Trial, 2- Organization and Development of the Case, II. [§ 2.4] Preliminary Decisions.

39. Florida Civil Practice Before Trial, 2- Organization and Development of the Case, VI. Evaluating Case, A. [§ 2.28] In General.

40. Florida Civil Practice Before Trial, 2- Organization and Development of the Case, VIII. Preparing a “Small Case”, A. [§ 2.38] In General.

41. Florida Civil Practice Before Trial, 13- Motions and Orders, II. Motions, B. [§ 13.3] Form Requirements.

42. Florida Civil Practice Before Trial, 20- Dismissals, II. Voluntary Dismissal, J. [§ 20.12] Payment of Costs and Attorneys’ Fees.

43. Florida Civil Practice Before Trial, 20- Dismissals, III. Involuntary Dismissal, E. [§ 20.19] Costs.

44. Florida Condominium and Community Association Law, Chapter 16 Condominium and Homeowners’ Association Liens, V. Complaint, D. [§ 16.30] Attorneys’ Fees.

45. Florida Construction Law and Practice, 6 Rights and Liabilities of Subcontractors and Suppliers, I. Bid Phase and Formation of Subcontract Agreement, B. Subcontract Agreement, 2. [§ 6.5] Specific Provisions.

46. Florida Construction Law and Practice, 6 Rights and Liabilities of Subcontractors and Suppliers, IV. Attorneys’ Fees, A. [§ 6.45] Contractual.

47. Florida Construction Law and Practice, 11 Delay Claims, V. Delay Damages, B. Owner Delay Damages, 8. [§ 11.28] Attorneys’ Fees.

48. Florida Construction Law and Practice, 13 Alternative Dispute Resolution and Partnering, V. Practical Considerations in Arbitration, D. [§ 13.20] Attorneys’ Fees and Costs.

49. Florida Juvenile Law and Practice, Chapter 10. Role of the Lawyer in Dependency Cases, II. Right to Counsel, C. Payment of Appointed Counsel, 1. [§ 10.7] Counsel for Parents.

50. Florida Juvenile Law and Practice, Chapter 10. Role of the Lawyer in Dependency Cases, III. Representing Clients in Dependency Cases, E. [§ 10.14] Representing Other Parties.

51. Florida Juvenile Law and Practice, Chapter 17. Termination of Parental Rights, III. Initiating the Proceeding, F. Right to Counsel, 4. [§ 17.35] Attorneys’ Fees and Costs.

52. Florida Medical Malpractice Handbook, Chapter 7. Pleadings in Medical Malpractice, I. [§ 7.1] Introduction.

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53. Florida Medical Malpractice Handbook, Chapter 8. Discovery, II. Handbook on Discovery Practice, A. [§ 8.32] Chapter One.

54. Florida Proceedings After Dissolution of Marriage, 1 Appeals, V. General Practice and Procedure, J. Costs and Attorneys’ Fees, 1. [§ 1.20] In General.

55. Florida Proceedings After Dissolution of Marriage, 3 Enforcement, 3-E Attorneys’ Fees, II. [§ 3.113] Attorneys’ Fees Award In Enforcement Proceedings.

56. Florida Proceedings After Dissolution of Marriage, 8 Uniform Interstate Family Support Act, II. Practice and Procedure, B. Florida as Initiating State, 4. [§ 8.16] Costs And Attorneys’ Fees.

57. Florida Proceedings After Dissolution of Marriage, 10 The Child Support Enforcement Program, II. [§ 10.2] Title IV-D Terminology.

58. Practice Under Florida Probate Code, 21 Probate Litigation, III. Types of Probate Litigation, A. Will or Trust Contest, 1. Grounds, a. [§ 21.6] In General.

59. Florida Real Property Complex Transactions, 5 Financing of Commercial Real Estate, III Common Elements of Commercial Real Estate Financing Transactions, B. Documentation, k. [§ 5.18] Right To Action On Note.

60. Florida Real Property Litigation, 5 Foreclosures, 5-E Condominium and Homeowners’ Association Liens, VI. Complaint, G. [§ 5.276] Attorneys’ Fees.

61. Florida Real Property Litigation, 6 Re-Creating and Correcting Instruments and Agreements, 6-A Defective or Lost Instruments, III. Initial Client Interview, C. [§ 6.9] Fees And Costs.

62. Florida Real Property Litigation, 6 Re-Creating and Correcting Instruments and Agreements, 6-B Reformation, Rescission, and Cancellation of Instruments and Agreements, V. Judgment, A. [§ 6.52] In General.

63. Florida Real Property Litigation, 6 Re-Creating and Correcting Instruments and Agreements, 6-B Reformation, Rescission, and Cancellation of Instruments and Agreements, V. Judgment, B. [§ 6.53] Attorneys’ Fees.

64. Florida Real Property Litigation, 9 Enforcement of Restrictive Covenants, XII. Enforcement Proceedings, B. Litigation, b. [§ 9.57] Recovery Of Attorneys’ Fees.

65. Florida Real Property Litigation, 14 Attorneys’ Fees in Real Property Litigation, II. Contractual Basis for Attorneys’ Fees, B. Issues Arising Under Contractual Fee Agreements, 2. [§ 14.5] Unilateral Fee Provisions.

66. Florida Real Property Litigation, 14 Attorneys’ Fees in Real Property Litigation, J. Miscellaneous Statutory Provisions, 5. [§ 14.36] Absence Of Material Fact Or Existing Law.

67. Florida Real Property Litigation, 14 Attorneys’ Fees in Real Property Litigation, J. Miscellaneous Statutory Provisions, 7. [§ 14.38] Criminal Practices.

68. Florida Appellate Practice, 2 Professional Responsibility of Appellate Advocates, III. [§ 2.3] Meritorious Appeals.

69. Florida Appellate Practice, 2 Professional Responsibility of Appellate Advocates, VII. [§ 2.9] Professionalism.

70. Florida Appellate Practice, 6 Appellate Standards of Review, VIII. Posttrial Rulings, E. [§ 6.29] Reviewing Cost And Attorneys’ Fees Awards.

71. Florida Appellate Practice, 7 Civil Appeals, II. Pre-Appeal Considerations, A. [ § 7.3] From Appellant’s Standpoint.

72. Florida Appellate Practice, 7 Civil Appeals, IV. Motions, D. [§ 7.26] Attorneys’ Fees.

73. Florida Appellate Practice, 8 Administrative Appeals, II. Judicial Review Under F.S. 120.68, B. [§ 8.3] Final Agency Action.

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74. Florida Appellate Practice, 8 Administrative Appeals, V. Attorneys’ Fees and Costs, A. [§ 8.21] Attorneys’ Fees.

75. Florida Appellate Practice, 11 Writ of Certiorari in Florida, IX. [§ 11.14] Attorneys’ Fees and Costs.

76. Florida Appellate Practice, 12 Mandamus, II. Procedure for Obtaining Writ, K. Response, 1. [ § 12.27] Form And Contents Of Response.

77. Florida Appellate Practice, 12 Mandamus, IV. Disposition of Proceedings, D. [§ 12.47] Attorneys’ Fees.

78. Florida Appellate Practice, 21 Attorneys’ Fees, VI. [ § 21.10] Frivolous Appeals Under F.S. 57.105.

79. Florida Appellate Practice, 21 Attorneys’ Fees, XII. [ § 21.16] Fee Claims in Family Law Appeals.

80. Florida Appellate Practice, 22 Motion Practice, IV. When to File Motion, C. [ § 22.13] Motion For Attorneys’ Fees.

81. Florida Appellate Practice, 22 Motion Practice, X. Motions for Attorneys’ Fees and Costs, A. [§ 22.53] Attorneys’ Fees.

82. Business Litigation in Florida, 16 Recovery of Attorneys’ Fees, II. [§ 16.2] Contractual Right to Fee.

83. Business Litigation in Florida, 16 Recovery of Attorneys’ Fees, III. [§ 16.3] Selected Statutes Providing for Award of Fees in Commercial Cases.

84. Business Litigation in Florida, 16 Recovery of Attorneys’ Fees, IV. [§ 16.4] Pleading Entitlement to Fees.

85. Business Litigation in Florida, 16 Recovery of Attorneys’ Fees, X. Hearings on Motion to Tax Fees, A. [ § 16.10] Impact Of Florida Patient’s Compensation Fund v. Rowe.

86. Florida Civil Trial Practice, 1 The Trial Lawyer, III. Ethics of Advocacy, B. Specific Rules of Ethics, 2. [§ 1.7] In Relation To Client.

87. Florida Civil Trial Practice, 19 Costs, Fees, and Interest, III. Attorneys’ Fees, A. [§ 19.22] In General.

88. Florida Civil Trial Practice, 19 Costs, Fees, and Interest, III. Attorneys’ Fees, B. [§ 19.23] Statutory Authorization.

89. Florida Dissolution of Marriage, 2 Grounds for Dissolution and Effect of Fault, III. Effect of Fault, F. [§ 2.19] Attorneys’ Fees.

90. Florida Dissolution of Marriage, 5 Pleadings, II. Petition, C. [§ 5.8] Parties.

91. Florida Dissolution of Marriage, 7 Discovery, III. Mandatory Disclosure, A. [§ 7.18] In General.

92. Florida Dissolution of Marriage, 9 Settlement and Trial, II. Settlement, D. Settlement Negotiations, 5. [§ 9.11] Attorneys’ Fees Considerations.

93. Florida Dissolution of Marriage, 16 Attorneys’ Fees, Suit Money, and Costs, II. Attorneys’ Fees, A. General Principles, 7. Punitive Fees Award, a. [§ 16.8] Against Party.

94. Florida Dissolution of Marriage, 16 Attorneys’ Fees, Suit Money, and Costs, II. Attorneys’ Fees, A. General Principles, 7. Punitive Fees Award, b. [§ 16.9] Against Attorney.

95. Florida Dissolution of Marriage, 19 Proceedings Before Magistrates and Support Enforcement Hearing Officers, III. Hearing Officers, B. [§ 19.22] Purpose Of Program.

96. Florida Dissolution of Marriage, 21 Representing Battered Spouses, III. Injunctions for Protection Against Domestic Violence, E. Permanent Injunction, 6. Relief Available, d. [§ 21.45] Attorneys’ Fees And Costs.

LexisNexis® Florida Annotated StatutesCopyright © 2017 Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved.

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