ALL-BRITE SALES COMPANY, APPELLANT,
v.
CHARLES L. RODERICK, APPELLEE

Fla. 1st DCA | 1982-07-08
No. AH-118
Thompson, J., Larry G. Smith, J., Joanos, J.
416 So. 2d 1202 Florida District Court of Appeal, First District (1982) Positive Treatment
Cited by 4 cases

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Synopsis

The court affirmed that appellee was not bound by a non-compete covenant because the employment contract had terminated two years before he left, but reversed the trial court's reservation of jurisdiction to award attorney's fees because the appellant's claim was not frivolous under Florida Statute § 57.105.

Holding

An employment contract that has terminated is unenforceable, and attorney's fees under § 57.105 cannot be awarded unless the losing party's action is frivolous and completely devoid of merit on both facts and law.

Headnotes

[1] Attorney's fees under Florida Statute § 57.105 may be awarded only when the losing party's action is frivolous and completely devoid of merit on both facts and law, not m…

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Key Quotes

“the court must find that the action is clearly devoid of merit both on the facts and the law, and that the action is so untenable as to be properly labeled "frivolous."”

Standard for awarding attorney's fees under § 57.105, Fla.Stat.
Facts & Procedural History

Appellee was employed by All-Brite Sales Company under an employment contract containing a covenant not to compete. The employment contract terminated…

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Topics
Attorney'S Fees Under Fla. Stat. § 57.105 Fla. Stat. § 57.105 Covenant Not To Compete Employment Contract

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Opinion of the Court
THOMPSON, Judge.

THOMPSON, Judge.

This is an appeal from a final judgment holding that appellee was not bound by the terms of a covenant not to compete contained in his employment contract with appellant and reserving jurisdiction to award an attorney’s fee to appellee. We affirm in part and reverse in part.

There was competent substantial evidence to support the trial court’s finding that the employment contract had terminated some two years before appellee actually left appellant’s employ, and thus there was no error in the court’s ruling that appellee was not bound by the terms of the contract.

However, the trial court did err in retaining jurisdiction to consider appellee’s prayer for attorney’s fees. The only possible basis for an award of attorney’s fees in this case is § 57.105, Fla.Stat., which provides that the court may award attorney’s fees if it finds that there was a “complete absence of a justiciable issue of either law or fact raised by the losing party.” In order to make an award of attorney’s fees under § 57.105, the court must find that the action is clearly devoid of merit both on the facts and the law, and that the action is so untenable as to be properly labeled “frivolous.” Allen v. Estate of Dutton, 384 So. 2d 171 (Fla. 5th DCA), pet. for review denied, 392 So. 2d 1373 (Fla.1980). Appellant’s claim herein, although unsuccessful, was clearly not frivolous. Accordingly, the final judgment is modified to delete the reservation of jurisdiction to award attorney’s fees, and, as modified, is affirmed.

LARRY G. SMITH and JOANOS, JJ., concur.

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Citator

Cited By

  • Sheriff OF Alachua Cnty. v. Hardie, 433 So. 2d 15 (Fla. 1st DCA 1983)
    …e an award of attorney’s fees under § 57.105, the court must find that the action is clearly devoid of merit both on the facts and the law, and that the action is so untenable as to be properly labeled ‘frivolous.’ ” All-Brite Sales Co. v. Roderick, 416 So. 2d 1202, 1203 (Fla. 1st DCA 1982) (e.s.). Because the lower court failed to make any such finding and, even had it done so, given the record of this case, such a finding would clearly have been erroneous, we reverse that portion of the final judgment awardi…
  • Neonatology Assocs., P.A. v. Felix Estrada, M.D., 488 So. 2d 102 (Fla. 3d DCA 1986)
    …PER CURIAM. Affirmed. All-Brite Sales Company v. Roderick, 416 So. 2d 1202 (Fla. 1st DCA 1982); Zimmer v. Pony Express Courier Corporation of Florida, 408 So. 2d 595 (Fla. 2d DCA 1981); Sultan v. Jade Winds Construction Corp., 277 So. 2d 574 (Fla. 3d DCA 1973).…

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