THE KEYES COMPANY, A FLORIDA CORPORATION, APPELLANT,
v.
JOSEPH FRIEDES, APPELLEE
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A Florida real estate broker (Keyes Company) appealed an award of attorney's fees to the defendant seller (Friedes) under Section 57.105, Florida Statutes. The court reversed, holding that the broker's claim for commission, though ultimately unsuccessful, was not frivolous and therefore did not justify an attorney's fees award.
The court held that the broker's claim was not frivolous and therefore did not justify an award of attorney's fees. Although the broker's legal construction of the contract was ultimately rejected, it was a colorable, non-frivolous argument that did not meet the exacting standards for attorney's fees awards under Section 57.105.
[1] An award of attorney's fees under Section 57.105, Florida Statutes, requires a complete absence of a justiciable issue of law or fact raised by the losing party.
[2] A claim for a brokerage commission based on an oral listing agreement is not frivolous when the broker alleges full performance and the seller's inexcusable refusal to cl…
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Join FLexlaw to unlock all legal intelligence“we cannot say that "there was a complete absence of a justiciable issue of law or fact raised by the losing party" so as to justify an award of attorney's fees in this case.”
Establishes the legal standard under Section 57.105 for when attorney's fees may be awarded to the prevailing party.
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Join FLexlaw to unlock all legal intelligenceKeyes Company, a real estate broker, had an oral listing agreement with Joseph Friedes to sell property. The agreement was modified in writing to requ…
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PER CURIAM.
This is an appeal by a plaintiff real estate broker from a final order awarding attorney’s fees to the defendant seller in an action to collect a real estate broker’s commission. The award was made pursuant to Section 57.105, Florida Statutes (1985). We reverse based on the following briefly stated legal analysis.
Although the defendant seller, Joseph Friedes, secured a judgment on the pleadings in the action below, which judgment was subsequently affirmed on appeal by this court, Keyes Co. v. Friedes, 478 So. 2d 518 (Fla. 3d DCA 1985), we cannot say that “there was a complete absence of a justiciable issue of law or fact raised by the losing party” so as to justify an award of attorney’s fees in this case. § 57.105, Fla.Stat. (1985).
The plaintiff broker, Keyes Company, had a colorable, non-frivolous claim for a brokerage commission under its oral listing agreement with the defendant based on the latter’s alleged inexcusable refusal to close on the sale of the subject property after the plaintiff had fully performed under the listing agreement. It was urged that the written modification of this oral listing agreement requiring a closing as a pre-condition to payment of a brokerage commission, when read in conjunction with another provision in the contract between the proposed buyer and the defendant containing the modification, was inapplicable when the defendant, as here, unjustifiably refused to close. Although this construction of the parties’ agreement was ultimately rejected, we cannot say that the argument in favor of such a construction was frivolous based on the exacting standards established by Whitten v. Progressive Casualty Insurance Co., 410 So. 2d 501 (Fla.1982), for attorney’s fees awards under Section 57.105, Florida Statutes (1985).
See Fireman’s Fund Insurance Co.'s v. Rojas, 447 So. 2d 1023, 1023 (Fla. 3d DCA 1984); Cusick v. Condominium Marketing Consultants, Inc., 434 So. 2d 25, 26 (Fla. 3d DCA), pet. for review dismissed, 436 So. 2d 98 (Fla.1983); Allen v. Estate of Dutton, 384 So. 2d 171, 175 (Fla. 5th DCA), pet. for review denied, 392 So. 2d 1373 (Fla.1980).
For the above reasons, the final order awarding attorney’s fees under review is reversed and the cause is remanded to the trial court with directions to enter an order denying the subject motion for attorney’s fees filed herein.
Reversed and remanded.
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Alario & Assocs., Inc. v. Jorge Resendiz, Inc., 516 So. 2d 1081 (Fla. 2d DCA 1987)…in favor of defendant in the broker’s suit for a commission. We agree with appellant that it was improper to award attorney’s fees in this case. See Whitten v. Progressive Casualty Insurance Co., 410 So. 2d 501 (Fla.1982); Keyes Company v. Friedes, 497 So. 2d 916 (Fla. 3d DCA 1986). Reversed. DANAHY, C.J., LEHAN, J., and BOARDMAN, EDWARD F., (Ret.) J., concur.…
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Dorf v. Usher, 514 So. 2d 68 (Fla. 4th DCA 1987)…e issue of law or fact. However, this record fails to support a conclusion that the complaint was either frivolously filed or devoid of arguable substance. See Brown v. United States Marble, 505 So. 2d 1103 (Fla. 4th DCA 1987); Keyes Co. v. Friedes, 497 So. 2d 916 (Fla. 3d DCA 1986); Olsen v. O’Connell, 466 So. 2d 352 (Fla. 2d DCA 1985); Klein v. Layne, Inc. of Florida, 453 So. 2d 203 (Fla. 4th DCA 1984); Fireman’s Fund Insurance Companies v. Rojas, 447 So. 2d 1023 (Fla. 3d DCA 1984); Stevenson v. Rutherford,…
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Dodich v. Wash. Int'l Ins. Co., Inc., 733 So. 2d 601 (Fla. 3d DCA 1999)…he sureties on bonds posted pursuant to the Yacht and Ship Brokers’ Act, Chapter 326, Florida Statutes (1997), on the ground that, while incorrect, the claims against them were not so unsubstantial as to justify those fees. See Keyes Co. v. Friedes, 497 So. 2d 916 (Fla. 3d DCA 1986); Fireman’s Fund Ins. Cos. v. Rojas, 447 So. 2d 1023 (Fla. 3d DCA 1984). Affirmed in part, reversed in part.…
Authorities Cited
- Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501 (Fla. 1982)
- Carola D. Allen v. Est. of Ellen C. Dutton, 384 So. 2d 171 (Fla. 5th DCA 1980)
- Fireman's Fund Ins. Cos. v. Ada Rojas, 447 So. 2d 1023 (Fla. 3d DCA 1984)
- Cusick v. Condo. Mktg. Consultants, Inc., 434 So. 2d 25 (Fla. 3d DCA 1983)
- A.H. v. State, 478 So. 2d 518 (Fla. 3d DCA 1985)
- Hauser v. Coates, 478 So. 2d 518 (Fla. 3d DCA 1985)