JOHN J. O'BRIEN, APPELLANT,
v.
BRICKELL TOWNHOUSE, INC.; JERRY A. GROSS; HOWARD P. GROSS AND ALAN TELISMAN, APPELLEES
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The court affirmed an award of attorney's fees under Florida Statutes Section 57.105 where the appellant attempted to relitigate in state court issues already resolved against him in federal court, constituting a frivolous appeal.
A trial court may determine whether an appeal is frivolous based on the record alone without taking evidence, and may award attorney's fees when a party attempts to relitigate issues already decided adversely in federal court.
[1] A trial court may determine whether an appeal is frivolous based on the record alone without conducting an evidentiary hearing.
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Join FLexlaw to unlock all legal intelligenceFollowing an initial appeal decision in O'Brien v. Brickell Townhouse, 439 So. 2d 982 (Fla. 3d DCA 1983), the defendant filed a petition for attorney'…
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PER CURIAM.
Following the rendition of our opinion, reported O’Brien v. Brickell Townhouse, 439 So. 2d 982 (Fla. 3d DCA 1983), the matter recurred in the trial court on a petition for attorney’s fees filed by Brickell Townhouse pursuant to the provisions of Section 57.105, Florida Statutes (1983). The trial court granted the petition and entered an award of fees. This appeal ensued.
The appellant contends, first, that the trial court was required to take evidence to determine whether or not the appeal was frivolous, and second, that the record, in fact, demonstrated a justiciable issue of law. There is no requirement that a trial court must take evidence to determine whether a matter is frivolous, it may do it on the record alone. Strothman v. Henderson Medical Health Center, Inc., 425 So. 2d 1185 (Fla. 4th DCA 1983). And third, it is clear in the instant case by virtue of the prior affirmance that the appellant was attempting to relitigate in the state courts identical issues which had been resolved, adverse to him, in the federal courts and therefore he did not plead any justiciable issue and the trial court was correct in the entry of the order here under review. See Debra, Inc. v. Orange County, 445 So. 2d 404, 405 (Fla. 5th DCA 1984); Puder v. Raymond International Builders, Inc., 424 So. 2d 78 (Fla. 3d DCA 1983); P.J. Constructors, Inc. v. Carter Electric Company, 410 So. 2d 536 (Fla. 5th DCA 1982); New River Yachting Center v. Bacchiocchi, 407 So. 2d 607 (Fla. 4th DCA 1982).
The order under review is hereby affirmed.
Affirmed.
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Weatherby Assocs., Inc. v. Ballack, 783 So. 2d 1138 (Fla. 4th DCA 2001)…presented to the court at the hearing on attorney’s fees or otherwise before the court and in the trial court record. Strothman v. Henderson Mental Health Ctr., Inc., 425 So. 2d 1185 (Fla. 4th DCA 1983). See also O’Brien v. Brickell Townhouse, Inc., 457 So. 2d 1123 (Fla. 3d DCA 1984). [*1142] Following the 1999 amendment to section 57.105(1), the frivolousness of a claim may be measured when the claim is “initially presented to the court or at any time before trial.” See § 57.105(1), Fla. Stat. (1999). Althoug…
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Olson v. Potter, 650 So. 2d 635 (Fla. 2d DCA 1995)…l judgment. The appellants/eross-appellees were attempting in the 1991 case to relitigate the same issues determined in the prior proceedings. By so doing they did not plead any justiciable issue of law or fact. O’Brien v. Brickell Townhouse, Inc., 457 So. 2d 1123 (Fla. 3d DCA 1984). Section 57.105 provides for the award of a reasonable attorney’s fee to the prevailing party in any civil action where there is no justiciable issue of either law or fact raised by either the complaint or defense of the losing pa…
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Schultz v. Williams, 472 So. 2d 1347 (Fla. 2d DCA 1985)…rtment buildings which have been converted into condominiums. Nothing in the record indicates to us that in the principal case he was attempting to relitigate issues identical to the issues previously ruled adversely to him. Cf. O’Brien v. Brickell, 457 So. 2d 1123 (Fla. 3d DCA 1984). Accordingly, we vacate the award of attorney’s fees entered below. Likewise, we deny appellees’ motion for assessment of attorney’s fees on appeal filed under section 57.105 and Florida Rule of Appellate Procedure 9.140. GRIMES…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- NEW River Yachting Ctr., Inc. v. Bacchiocchi, 407 So. 2d 607 (Fla. 4th DCA 1981)
- Strothman v. Henderson Mental Health Ctr., Inc., 425 So. 2d 1185 (Fla. 4th DCA 1983)
- Puder v. Raymond Int'l Builders, Inc., 424 So. 2d 78 (Fla. 3d DCA 1982)
- Debra, Inc. v. Orange Cnty., 445 So. 2d 404 (Fla. 5th DCA 1984)
- P. J. Constructors, Inc. v. Carter Elec. Co., 410 So. 2d 536 (Fla. 5th DCA 1982)
- O'Brien v. Brickell Townhouse, Inc., 439 So. 2d 982 (Fla. 3d DCA 1983)