FRANCIS J. MCNEE AND GLADYS S. MCNEE, HIS WIFE, PETITIONERS,
v.
G. ROBERT BIZ, RESPONDENT
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The Florida District Court of Appeal reversed an award of attorney's fees under section 57.105, holding that a party defending a judgment on appeal necessarily raises justiciable issues of law or fact, and therefore cannot be found to have taken a frivolous position warranting attorney's fees.
A party defending a judgment on appeal necessarily raises justiciable issues of law or fact, and therefore cannot be found to have taken a frivolous position warranting attorney's fees under section 57.105. The award of fees was improper as a matter of law.
[1] A trial court must make explicit findings that a claim is frivolous and completely untenable before awarding attorney's fees under Section 57.105 of the Florida Statutes.
[2] A party's good faith efforts to change existing law do not render an action frivolous for purposes of Section 57.105 attorney's fees.
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Establishes the legal standard for awarding attorney's fees under section 57.105
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Join FLexlaw to unlock all legal intelligenceThe McNees obtained a summary final judgment in county court. Biz appealed to the circuit court sitting in appellate capacity. The McNees defended the…
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PER CURIAM.
The circuit court, sitting in its appellate capacity, awarded attorney’s fees to appellant Biz pursuant to section 57.105, Florida Statutes (1983). Because the appellees did nothing more than defend the judgment on appeal, we hold that the award of attorney’s fees constitutes a departure from the essential requirements of law. Consequently, we grant appellees’ petition for certiorari and quash the award.
Section 57.105 provides for an award of attorney’s fees to the prevailing party in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party. In essence, the court must conclude that the losing party’s position was frivolous. See Galbraith v. Inglese, 402 So. 2d 574 (Fla. 4th DCA 1981). The statute was designed to discourage baseless claims, stonewall defenses and sham appeals in civil litigation by placing a price tag through attorney’s fees awards on losing parties who engage in these activities.
Whitten v. Progressive Casualty Insurance Co., 410 So. 2d 501, 505 (Fla.1982).
Here, the McNees won a summary final judgment in the county court, and Biz appealed to the circuit court. In the appellate phase, the McNees did nothing more than defend the judgment entered by the lower court. They did not file a cross appeal, but simply responded to the appellant’s assertions of error. Under these circumstances the appellate court could not award section 57.105 fees to the successful appellant because, as a matter of law, the appellees’ position had to embody a justiciable issue of law or fact. The judgment of the trial court carried with it a presumption of correctness, Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla.1979), and the defense of that judgment necessarily involved the advancement of justiciable issues. See Enoch Associates, Inc. v. Moult Investments, Ltd., 404 So. 2d 798 (Fla. 3d DCA 1981). Thus, the circuit court, sitting in its appellate capacity, departed from the essential requirements of law when it found no justiciable issue of law or fact and awarded attorney’s fees.
Accordingly, we grant certiorari and quash the award of attorney’s fees.
ANSTEAD, HURLEY and WALDEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Boca Burger, Inc. v. Forum, 912 So. 2d 561 (Fla. 2005)…that because the judgment of a trial court carries a presumption of correctness, defense of that judgment necessarily presents a justiciable issue); Coral Springs Roofing Co. v. Campagna, 528 So. 2d 557, 558 (Fla. 4th DCA 1988) (same); McNee v. Biz, 473 So. 2d 5, 6 (Fla. 4th DCA 1985) (holding that the appellate court could not award fees under section 57.105 against an appellee that did not cross-appeal the trial court’s order because, as a matter of law, the appellee’s position had to embody a justiciable…
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Coral Springs Roofing Co., Inc. v. Mr. G.S. Campagna, 528 So. 2d 557 (Fla. 4th DCA 1988)…on in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party. Essentially, to award such fees, the court must find that the losing party’s position was frivolous. McNee v. Biz, 473 So. 2d 5 (Fla. 4th DCA 1985). However, where a party wins a judgment or ruling in the lower tribunal and it is appealed, and where that party is unsuccessful on appeal, the appellate court could not award section 57.105 fees to the successful appellant. Tha…
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State v. Franklyn A. Salter, 710 So. 2d 1039 (Fla. 2d DCA 1998)…pellee to have raised nonjusticiable issues, and granted the successful appellant attorney’s fees. In each, the Fourth District quashed the fee award. See Coral Springs Roofing Co., Inc. v. Campagna, 528 So. 2d 557 (Fla. 4th DCA 1988); McNee v. Biz, 473 So. 2d 5 (Fla. 4th DCA 1985). Because the order of a trial court, or, as is in this case, a lower administrative tribunal, carries with it a presumption of correctness, defense of that order on appeal necessarily involves the advancement of justiciable issue…
Authorities Cited
- Pitcher v. Schneider (Fla. 5th DCA 2018)
- Albert v. Applegate et ux., 377 So. 2d 1150 (Fla. 1979)
- Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501 (Fla. 1982)
- Galbraith v. Inglese, 402 So. 2d 574 (Fla. 4th DCA 1981)
- Melton v. State, 404 So. 2d 798 (Fla. 3d DCA 1981)
- Enoch Assocs., Inc. v. Moult Invs., Ltd., 404 So. 2d 798 (Fla. 3d DCA 1981)