FRITILLARY HOLDINGS, INC., APPELLANT,
v.
PAT AND MAE'S DANCELAND CLUB, INC., ET AL., APPELLEES
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Attorney's fees cannot be awarded under Section 57.105, Florida Statutes, solely because a defendant fails to answer a complaint.
Plaintiff sought attorney's fees under Section 57.105, Florida Statutes, after the defendant failed to answer the complaint. The trial court awarded t…
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LETTS, Judge.
The only question raised on appeal, which we deem to have merit, is whether attorney’s fees can be awarded under Section 57.105, Florida Statutes (1981), solely because a defendant fails to answer. We hold the statute inapplicable and reverse.
The First District has held the-statute to apply when the prevailing party is impelled by the loser to waste time, money and judicial resources to halt a course of conduct engaged in by his opponent. Castaway Lounge of Bay County, Inc. v. Reid, 411 So. 2d 282 (Fla. 1st DCA 1982). However, the Third District in Sachs v. Hoglund, 397 So. 2d 447 (Fla.3d DCA 1981), held to the contrary. It is true that the Castaway decision seeks to distinguish Sachs, but we are not persuaded and align ourselves with Sachs.
As the Third District noted in Sachs, Section 57.105 does not require a defendant to either contest every suit or suffer attorney’s fees as a consequence. It is not the failure to raise frivolous issues that activates the statute. On the contrary, the legislative target is the affirmative act of raising them. Many defendants do not defend themselves because they have plumb run out of money to pay their lawyers. Indeed, the defendant’s attorney here withdrew for failure to pay his fees. If a defendant fails to defend himself because he cannot afford to, there is unconscionable irony in having to pay his opponent’s lawyer as further punishment for being unable to afford his own. We must admit it looks like the plaintiff was correct and should not have had to go to court to prove her cause. However, surely any plaintiff thinks likewise. Accurate assessment of a successful outcome does not in and of itself trigger the statute.
Accordingly, that portion of the final judgment awarding attorneys fees is reversed and remanded for amendment thereto. In all other respects, the lower court’s decision is affirmed.
AFFIRMED IN PART; REVERSED IN PART.
BERANEK and HERSEY, JJ., concur.
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Citator
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State v. Franklyn A. Salter, 710 So. 2d 1039 (Fla. 2d DCA 1998)…ner. As a matter of law, section 57.105 fees may not be awarded against a defaulting party in civil litigation. See Cabral v. Diversified Servs., Inc., 560 So. 2d 246 (Fla. 3d DCA 1990); Fritillary Holdings, Inc. v. Pat & Mae’s Danceland Club, Inc., 443 So. 2d 506 (Fla. 4th DCA 1984); Sachs v. Hoglund, 397 So. 2d 447 (Fla. 3d DCA 1981). There may be an exception to this rule when the defaulting party’s absence impedes the opposing party and the court’s disposition of the matter. See, e.g., Castaway Lounge of…
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Am. Druggist Ins. Co. v. First Citizens Fed. Sav. & Loan Ass'n, 502 So. 2d 1 (Fla. 4th DCA 1986)…PER CURIAM. We reverse and remand the award of attorney’s fees on the authority of Fritillary Holdings, Inc. v. Pat & Mae’s Danceland Club, 443 So. 2d 506 (Fla. 4th DCA 1984). While the courts may be sympathetic to the plight of those having to employ counsel and go to court to collect debts that are admittedly due, we have already determined in Fritillary that Section 57.105, Florida Statutes (1983)…
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James L. Hunt and jeanette Hunt v. Bankers Ins. Co., 535 So. 2d 357 (Fla. 3d DCA 1988)…PER CURIAM. Affirmed. See Fritillary Holdings, Inc. v. Pat & Mae’s Danceland Club, Inc., 443 So. 2d 506 (Fla. 4th DCA 1984); Sachs v. Hoglund, 397 So. 2d 447 (Fla. 3d DCA 1981); cf. Castaway Lounge, Inc. v. Reid, 411 So. 2d 282 (Fla. 1st DCA 1982).…
Authorities Cited
- Sachs v. Hoglund, 397 So. 2d 447 (Fla. 3d DCA 1981)
- The Castaway Lounge OF BAY Cnty., Inc. v. Reid, 411 So. 2d 282 (Fla. 1st DCA 1982)