RUSTIC VILLAGE, INC., A FLORIDA CORPORATION, AND STEVEN SHERE, APPELLANTS,
v.
ELAYNE FRIEDMAN, APPELLEE
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A prevailing defendant is entitled to attorney's fees under the Florida Deceptive and Unfair Trade Practices Act, even if the trial court determines the cause of action was not contemplated by the Act.
[1] A prevailing defendant is entitled to attorney's fees under the Florida Deceptive and Unfair Trade Practices Act even if the trial court determines the cause of action is…
[2] A plaintiff who brings a claim expressly under the Florida Deceptive and Unfair Trade Practices Act and does not prevail is liable for the defendant's attorney's fees.
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Join FLexlaw to unlock all legal intelligencePlaintiff brought a claim under the Florida Deceptive and Unfair Trade Practices Act, but the trial court dismissed the action, finding the transactio…
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PEARSON, Tillman (Ret.) Associate Judge.
The defendant in an action brought pursuant to the Florida Deceptive and Unfair Trade Practices Act, Section 501.201, et seq., Florida Statutes (1979), appeals an order of the trial court denying a motion for attorney’s fees pursuant to Section 501.-21051 of the Act. We reverse upon a holding that where a plaintiff brings a claim under the Act, an attorney’s fee is to be allowed a prevailing defendant even though the trial judge holds that the cause of action is not one contemplated by the Act.
The complaint in this cause was brought expressly for relief under the Florida Deceptive and Unfair Trade Practices Act. Upon the defendant’s motion, the trial judge entered a judgment on the pleadings because the transactions described in the complaint were not covered by the provisions of the Act. Thereafter, the defendant moved for an attorney’s fee pursuant to Section 501.2105. [See n. 1.] The trial judge denied this motion.
The plaintiff, as appellee, attempts to support the order appealed on the basis that once the trial court had found the Act “inapplicable,” it could not then utilize the Act for the purpose of granting the prevailing defendant an attorney’s fee. It is apparent that this is not the case since the Act was applied in the action. It is simply that after being applied, it did not produce a remedy for this plaintiff. To some degree, such is the result in every case where a defendant prevails. The plaintiff, having invoked the Act, is liable for an attorney’s fee because he did not prevail. Cf. Falovitch v. Gunn and Gunn Construction Company, 348 So. 2d 560 (Fla. 3d DCA 1977).
Reversed and remanded with directions to grant the defendant the fee provided by statute.
. 501.2105 Attorney’s fees.— (1) In any civil ligitation resulting from a consumer transaction involving a violation of this part, except as provided in subsection (5), the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, shall receive his reasonable attorney’s fees and costs from the nonprevailing party.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (18 total)
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Diamond Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 362 (Fla. 2013)…tation, holding that FDUTPA’s attorney’s fees provision applies to a defendant who prevailed in an action filed against him under that act, even though the trial court ultimately held that FDUT-PA did not apply. See Rustic Village, Inc. v. Friedman, 417 So. 2d 305, 305-06 (Fla. 3d DCA 1982) (stating that upon a trial court’s finding that a plaintiff filed a claim under FDUTPA, an award of attorney’s fees to a prevailing defendant is permissible in the action, even if the trial court ultimately holds that FDUT…
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Brown v. Gardens BY THE SEA S. Condo. Ass'n, 424 So. 2d 181 (Fla. 4th DCA 1983)…dn’t be awarded attorney fees under this chapter since he had ruled contrary to appellees’ contention that there was a consumer transaction. In other words, heads I win, tails you lose. We reverse upon authority of Rustic Village, Inc. v. Friedman, 417 So. 2d 305 (Fla. 3d DCA 1982). In fairness we call attention to the fact that this opinion was issued after entry of the appealed order. In the Rustic Village case, a successful defendant was denied attorney fees in an action brought, as here, under Section 50…
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Lorn Leitman and John Gentile v. Boone, 439 So. 2d 318 (Fla. 3d DCA 1983)…tric Corp. v. Roach, 120 Cal.App.3d 1067, 175 Cal.Rptr. 111 (1981); Quagliana v. Exquisite Home Builders, Inc., 538 P. 2d 301 (Utah 1975). Furthermore, unlike the majority, but like the fourth district, I think that Rustic Village, Inc. v. Friedman, 417 So. 2d 305 (Fla. 3d DCA 1982) and Brown v. Gardens by the Sea South Condominium Ass’n, 424 So. 2d 181 (Fla. 4th DCA 1983) (following Rustic Village) are highly persuasive. Both cases hold that a defendant who successfully argues, contrary to the plaintiff’s co…1 / 3
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- Falovitch v. Gunn & Gunn Constr. Co., 348 So. 2d 560 (Fla. 3d DCA 1977)