P. J. CONSTRUCTORS, INC., APPELLANT/CROSS-APPELLEE,
v.
CARTER ELECTRIC COMPANY, APPELLEE/CROSS-APPELLANT
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P.J. Constructors appealed the dismissal of its second amended complaint against Carter Electric Company for failure to state a cause of action. The court affirmed the dismissal but reversed the trial court's denial of attorney's fees to the prevailing defendant under Florida Statute § 57.105, finding the lawsuit frivolous.
The court held that the trial court properly dismissed the complaint without leave to amend because the appellant could not allege a justiciable issue, and that the appellee was entitled to a reasonable attorney's fee under § 57.105 because the lawsuit had a complete absence of a justiciable issue.
[1] A trial court may dismiss a complaint without leave to amend when the plaintiff has failed to state a cause of action after multiple opportunities and cannot demonstrate…
[2] A party is entitled to attorney's fees under section 57.105, Florida Statutes, when the opposing party raises a complete absence of a justiciable issue of either law or f…
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Join FLexlaw to unlock all legal intelligence“The 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.”
This quote establishes the statutory basis for awarding attorney's fees under Florida Statute § 57.105 and the standard applied by the court.
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Join FLexlaw to unlock all legal intelligenceP.J. Constructors initially filed suit in Dade County, but the case was transferred due to improper venue. The complaint was dismissed twice for failu…
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DAUKSCH, Chief Judge.
This is an appeal from an order dismissing a second amended complaint. The plaintiff first sued in Dade County and the case was transferred out of Dade County because the venue was improper. The complaint was dismissed twice because it did not state a cause of action. After the second amended complaint was dismissed the appellant moved for a rehearing saying that if one more chance was granted he would be able to allege a cause of action, although he did not proffer a complaint which stated a cause of action. In the brief and at oral argument before this court the appellant has not shown this court that a cause of action against the appellee could be alleged. That is, the appellant has not informed the court of sufficient facts which, if alleged, would support a proper complaint. Thus we find no error in the trial court’s having finally dismissed the complaint without leave to amend. However, based upon the record before us, and the briefs and argument of counsel, we are convinced the appellee is correct in its cross-appeal when it urges the trial court should have awarded appellee an attorney’s fee in accordance with section 57.105, Florida Statutes:
The 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.
It is our considered opinion the appellant did not and, under all the facts and law shown to us by appellant, could not ever allege a justiciable issue. For that the appellee is entitled to an award of a reasonable attorney’s fee for having to defend the frivolous lawsuit in the trial court and on appeal. Thus we reverse that portion of the trial court’s order which denies appellee an attorney’s fee and remand this matter for assessment of the same.
AFFIRMED IN PART; REVERSED IN PART.
COBB and COWART, JJ., concur.
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Wood v. Price, 546 So. 2d 88 (Fla. 2d DCA 1989)…sence of a justiciable issue of law or fact, the award of attorney’s fees to the prevailing party who properly moves for such fees is required. Debra, Inc. v. [*91] Orange County, 445 So. 2d 404 (Fla. 5th DCA 1984); Wright v. Acierno, 437 Elec. Co., 410 So. 2d 536 (Fla. 5th DCA 1982); Galbraith v. Inglese, 402 So. 2d 574 (Fla. 4th DCA 1981). Since the trial court did not award attorney’s fees after striking the counterclaim as a sham and dismissing the action against the appellant, it erred. We, accordingly,…
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O'Brien v. Brickell Townhouse, Inc., 457 So. 2d 1123 (Fla. 3d DCA 1984)…the entry of the order here under review. See Debra, Inc. v. Orange County, 445 So. 2d 404, 405 (Fla. 5th DCA 1984); Puder v. Raymond International Builders, Inc., 424 So. 2d 78 (Fla. 3d DCA 1983); P.J. Constructors, Inc. v. Carter Electric Company, 410 So. 2d 536 (Fla. 5th DCA 1982); New River Yachting Center v. Bacchiocchi, 407 So. 2d 607 (Fla. 4th DCA 1982). The order under review is hereby affirmed. Affirmed.…
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Admark Int'l, Ltd. v. Wellman, 599 So. 2d 211 (Fla. 3d DCA 1992)…dmark International, Ltd., appeals a final judgment dismissing with prejudice an amended complaint as to appellee Richard R. Wellman, one of the defendants. The judgment is affirmed on the authority of P.J. Constructors, Inc. v. Carter Electric Co., 410 So. 2d 536, 537 (Fla. 5th DCA 1982).…
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