WILLIAM G. KEEN AND JANET B. KEEN, HIS WIFE, APPELLANTS,
v.
CHARLES ANTHONY BERNARDO, JR., APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that the trial court did not err in awarding attorney's fees under section 57.105 because the appellants knew the appellee was not a party to the lawsuit long before discovery, creating a complete absence of a justiciable issue as to him.
[1] A party is entitled to attorney's fees under section 57.105, Florida Statutes, when there is a complete absence of a justiciable issue of law or fact as to that party.
[2] A complete absence of a justiciable issue exists when a plaintiff knows, prior to discovery, that a named defendant is not a party to the contract forming the basis of th…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceAppellants sued "Charles Bernardo" for breach of a tractor sale contract, but served Charles Bernardo, Jr. (appellee). Appellee immediately informed a…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Discovery Process cases and more on FLexlaw
CAMPBELL, Judge.
Appellants, William G. Keen and Janet B. Keen, seek review of the order awarding attorney’s fees to appellee, Charles Bernardo, Jr. We affirm.
The issue on appeal is whether the trial court erred by finding there was a complete absence of a justiciable issue of fact or law as to appellee, and awarding him attorney’s fees pursuant to section 57.105, Florida Statutes (1981).
Appellant sold a 1980 Kenworth K-100 tractor to “Charles Bernardo” at his business address of Select Truck Broker, 6710 C.E. Hillsborough Avenue, Tampa, Florida. “Charles Bernardo” defaulted on his obligation under the contract. Appellants filed suit against “Charles Bernardo” and had process served on “Charles Bernardo” at his business address. Charles Bernardo, Jr., appellee, was served on December 27, 1982.
On December 28, 1982, Charles Bernardo, Jr. informed appellants’ attorney’s office that he was not a party to the contract upon which appellants were suing.
On January 7, 1983, appellants issued a summons for Charles Bernardo, Sr. On January 12, 1983, appellee, Charles Bernardo, Jr. consulted an attorney. Ap-pellee’s attorney notified appellants’ attorney that the wrong person had been served. Appellee’s attorney filed an answer to the complaint and included the affirmative defense that Charles Bernardo, Jr. was not a party to the contract sued upon.
In a telephone conference on January 18, 1983, appellants’ attorney confirmed that Charles Bernardo, Sr., rather than Charles Bernardo, Jr., was the party that appellants intended to bring suit against. On January 24, 1983, appellants’ attorney wrote a letter stating that he intended to dismiss Charles Bernardo, Jr. from the lawsuit, but that he wished to take Charles Bernardo, Jr.’s deposition as a witness. He included a notice of taking deposition of Charles Bernardo, Jr. On January 28, 1983, appellants were served with a motion for attorney’s fees on behalf of appellee.
On February 2, 1983, Charles Bernardo, Jr., represented by counsel, was deposed.
On February 3, 1983, the day after the deposition, appellants’ attorney filed a notice of voluntary dismissal of appellee.
On February 27, 1983, the trial court heard appellee’s motion for attorney’s fees. The court found a complete absence of a justiciable issue of law or fact, and entered an order awarding attorney’s fees of $250 to appellee.
Appellants claim that the justiciable issue as to who was the proper party in this action was resolved through the process of discovery, that is, by taking Charles Bernardo, Jr.’s deposition. Appellants claim it would have been unreasonable to expect appellants’ counsel to dismiss appellee from the suit on the basis of unverified statements. Appellants cite Greenberg v. Manor Pines Realty Corporation, 414 So. 2d 260 (Fla. 4th DCA 1982) and Stevenson v. Rutherford, 440 So. 2d 28 (Fla. 4th DCA 1983), to support their proposition.
We find that Stevenson v. Rutherford and Greenberg v. Manor Pines Realty Corporation are distinguishable on their facts. In Greenberg v. Manor Pines Realty Corporation, it was established through discovery that one defendant was improperly included in the action. The trial court’s award of attorney’s fees was reversed on appeal because the Fourth District Court of Appeal found that there was a justiciable issue which was resolved by the discovery. In Stevenson v. Rutherford, the plaintiff brought suit against a defendant whom he thought was the proper party to the action; however, when the deposition of that defendant was taken, it became clear he was not a proper party. The Fourth District Court of Appeal reversed the award of attorney’s fees because the claim did not appear to be baseless, and appellant did not seem to draw out the time for voluntary dismissal.
Here, appellants knew long before they deposed appellee that he was not a party to the contract which was the basis of their lawsuit. Appellants admitted that they intended to sue Charles Bernardo, Sr. They also acknowledged the problem when they served Charles Bernardo, Sr. with a subpoena. Therefore, as to Charles Bernardo, Jr., appellee, there was no justiciable issue in this case. Nonetheless, appellants failed to dismiss appellee from the case, which caused appellee to hire legal counsel and incur legal expenses.
For the reasons - stated above, we find that appellee is entitled to attorney’s fees pursuant to section 57.105, Florida Statutes, and affirm the award of the trial court.
RYDER, C.J., and LEHAN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Muckenfuss v. Deltona Corp., 508 So. 2d 340 (Fla. 1987)…ed under section 57.105 against a party for continuing to assert its claim or defense which has become patently spurious during the course of the litigation. Wall v. Department of Transportation, 455 So. 2d 1138 (Fla. 2d DCA 1984); Keen v. Bernardo, 452 So. 2d 1133 (Fla. 2d DCA 1984); but see Klein v. Layne, Inc., 453 So. 2d 203 (Fla. 4th DCA 1984). Therefore, our quarrel with the district court’s opinion seems to center upon its use of the word “virtually.” I am unwilling to read that opinion so narrowly as t…
-
Leolus L. Wall v. Dep't OF Transp. OF the State OF Fla., 455 So. 2d 1138 (Fla. 2d DCA 1984)…District went further and held that no party could be subject to the penalties of section 57.-105 so long as the complaint initially was not frivolous, regardless of later occurrences. Therein lies our disagreement. Our holding in Keen v. Bernardo, 452 So. 2d 1133 (Fla. 2d DCA 1984), is consistent with our reasoning expressed herein.…
-
Huie v. Dent & Cook, P.A., 635 So. 2d 111 (Fla. 2d DCA 1994)…frivolous. Munsey v. General Tel. Co., 538 So. 2d 1328 (Fla. 2d DCA 1989); Schatz v. Wenaas, 510 So. 2d 1125 (Fla. 2d DCA 1987); Greater Clearwater Chamber of Commerce v. Modem Graphic Arts, 464 So. 2d 594 (Fla. 2d DCA 1985); Wall; Keen v. Bernardo, 452 So. 2d 1133 (Fla. 2d DCA 1984). Nevertheless, our holdings uniformly determine the right to fees based on the circumstances at the inception of the lawsuit. See Thompson, 552 So. 2d 318; Solimando v. Aloha Medical Ctr., 594 So. 2d 850 (Fla. 2d DCA 1992). These…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Stevenson v. Rutherford, 440 So. 2d 28 (Fla. 4th DCA 1983)
- Greenberg v. Manor Pines Realty Corp., 414 So. 2d 260 (Fla. 4th DCA 1982)