DR. BERNARD COHEN AND FLORENCE COHEN, HIS WIFE, APPELLANTS,
v.
GENERAL MOTORS CORPORATION, CADILLAC DIVISION, APPELLEE
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Dr. Cohen sought recovery for injuries sustained when he attempted to help release a stuck parking brake on a Cadillac and was struck by the vehicle. The trial court granted General Motors summary judgment and awarded attorney's fees under Florida Statute § 57.105. The court reverses the attorney's fees award, holding that although Cohen's claim ultimately failed, the suit was not frivolous.
The court holds that although summary judgment was properly granted against Cohen, the suit was not frivolous within the contemplation of § 57.105, and therefore the award of attorney's fees and expert witness costs was error.
[1] A lawsuit is not frivolous within the contemplation of section 57.105, Florida Statutes, if the plaintiff was unable to prove a claim against the defendant, even with exp…
[2] A trial court errs in assessing attorney's fees against a party under section 57.105, Florida Statutes, if the lawsuit was not frivolous.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“while the end result was that the Cohens were unable, even with their expert's testimony, to prove a claim against General Motors, we hold the suit was not frivolous within the contemplation of the cited statute”
Establishes the court's key holding that failure to prove a claim does not automatically render a suit frivolous under § 57.105.
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Join FLexlaw to unlock all legal intelligenceDr. Cohen attempted to assist Pearl Lowenstein by manually releasing the automatic parking brake on her Cadillac when it malfunctioned. The vehicle's …
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DOWNEY, Judge.
The primary issue here is whether there was a complete absence of justiciable issue of either law or fact raised by appellants so as to warrant the imposition of attorney’s fees under section 57.105, Florida Statutes (1981). The trial court found there was; we disagree and reverse.
Appellant, Dr. Bernard Cohen, playing the role of good Samaritan, attempted to assist Pearl Lowenstein in releasing the automatic parking brake on her Cadillac. Pearl was unable to move her car because the automatic parking brake release failed to work properly. Cohen attempted to assist her by reaching underneath the dash and releasing the automatic brake release lever. The motor was running but Cohen understood the gearshift to be in “park.” When he pulled the release lever, the car shot backward and the left front wheel of the car rolled over Cohen’s leg. Cohen sued the owner and operator of the car and General Motors Corporation — the latter in strict liability, breach of implied warranty and negligence. On the first day of trial, the court granted General Motors’ renewed motion for summary judgment. Cohen appealed the summary judgment and this court affirmed in Cohen v. General Motors Corporation, Cadillac Division, 427 So. 2d 389 (Fla. 4th DCA 1983). In a written opinion the court discussed the various theories of liability asserted by appellants and held that General Motors was not liable for Cohen’s injury. Finding no factual issue demonstrated under any of the three theories of liability, the court affirmed the summary judgment. On remand, the trial court awarded General Motors $23,696.00 in attorney fees pursuant to section 57.105.
We are frequently criticized for affirming cases without opinion when we perceive a written opinion to be unnecessary. But this is the first time we have been charged with writing an opinion in a case in which there was a complete absence of a justiciable issue unless such absence was the thrust and purpose of the opinion. Be that as it may, while the end result was that the Cohens were unable, even with their expert’s testimony, to prove a claim against General Motors, we hold the suit was not frivolous within the contemplation of the cited statute. It was, therefore, error to assess an attorney’s fee against appellants. That being true, it was also error to hold appellants liable for the cost incurred by General Motors in providing expert testimony on a reasonable attorney’s fee.
Accordingly, the order granting General Motors attorney’s fees and costs of an expert witness on attorney’s fees is reversed.
REVERSED.
ANSTEAD, C.J., and HERSEY, J., concur.
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Wells Fargo Bank Nat'l Ass'n & Custodian FOR Morgan Stanley ABS Cap. v. Adren Bird, 234 So. 3d 833 (Fla. 5th DCA 2018)…s, they are also not entitled to recover their expert witness costs. See Marty v. Bainter, 727 So. 2d 1124, 1125 (Fla. 1st DCA 1999) (citing Jupiter Mall Realty Corp. v. Rosner’s, Inc., 614 So. 2d 52 (Fla. 4th DCA 1993)); Cohen v. Gen. Motors Corp., 444 So. 2d 1170, 1171 (Fla. 4th DCA 1984). Accordingly, we reverse that portion of the final judgment awarding attorney’s fees and expert witness costs to Borrowers. In all other respects, we affirm. AFFIRMED in part, REVERSED in part. SAWAYA, ORFINGER and BERGE…
Authorities Cited
- Cohen v. Gen. Motors Corp., 427 So. 2d 389 (Fla. 4th DCA 1983)
- Horan v. Horan, 427 So. 2d 389 (Fla. 4th DCA 1983)