DEBRA, INC., APPELLANT,
v.
ORANGE COUNTY, FLORIDA, APPELLEE
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The court held that the trial court erred in denying attorney's fees when it had previously determined there was a complete absence of a justiciable issue.
The trial court dismissed an action with prejudice, finding no justiciable issue. Subsequently, the trial court denied the defendant's motion for atto…
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ORFINGER, Chief Judge.
The issue on appeal is whether appellant, defendant below, is entitled to an award of attorney’s fees under Section 57.105, Florida Statutes (1981).
In a final order from which no appeal was taken, the trial court dismissed the action with prejudice, finding that “[t]here is a complete absence of a justiciable issue of either law or fact between the parties to this action at this time.” Several months later, the court denied defendant’s motion for attorney’s fees which had been filed on the day the final order was entered. We find that this denial was erroneous and reverse.
Once the determination has been made by the trial court that there is a complete absence 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. As we pointed out in Wright v. Acierno, 437 So. 2d 242 (Fla. 5th DCA 1983), an opinion not available to the trial court when the order appealed from was entered,
... We agree that the use of the word “shall” in the statute evidences the legislative intention to impose a mandatory penalty in the form of a reasonable attorney’s fee once the determination has been made that there was a complete absence of a justiciable issue raised by the losing party....
Id. at 244.
The order appealed from is reversed and the cause is remanded to the trial court for the determination and award of a reasonable attorney’s fee for the services of appellant’s attorney. Appellant’s motion for the allowance of an attorney’s fee on appeal is also granted, the amount thereof to be determined by the trial court on remand. See TIE Communications, Inc. v. Toyota Motors Center, Inc., 391 So. 2d 697 (Fla.3d DCA 1980).
REVERSED and REMANDED.
COWART, J., and DAVIS, S.J., Associate Judge, concur.
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Morton v. Heathcock, 913 So. 2d 662 (Fla. 3d DCA 2005)…[o]nce the determination has been made by the trial court that there is a complete absence of a justiciable issue of law or fact, the award of attorney’s fees to the prevailing party ... is required ”) (emphasis added); Debra, Inc. v. Orange County, 445 So. 2d 404, 405 (Fla. 5th DCA 1984) (same). The trial court in this case made a determination that the requirements of section 57.105 had been met. That determination is supported by the record which shows that both Morton and his trial attorney knew that Mort…
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Wood v. Price, 546 So. 2d 88 (Fla. 2d DCA 1989)…rmination has been made by the trial court that there is a complete absence 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 di…
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Carbino v. Gaylon Earl Ward, 801 So. 2d 1028 (Fla. 5th DCA 2001)…Florida Statutes (1999), which authorizes the award of [*1032] attorney’s fees as a sanction in frivolous cases, does not mention appellate attorney’s fees, this court has awarded such fees pursuant to that section. See Debra, Inc. v. Orange County, 445 So. 2d 404 (Fla. 5th DCA 1984). AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings. THOMPSON, C.J. and SAWAYA, J., concur. . Rule 1.720 of Florida Rules of Civil Procedure allows a party to apply to the court for interim or emergency r…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- T.I.E. Commc'ns, Inc. v. Toyota Motors Ctr., Inc., 391 So. 2d 697 (Fla. 3d DCA 1980)
- Wright v. Dr. and Mrs. Louis J. Acierno, 437 So. 2d 242 (Fla. 5th DCA 1983)