ERNEST RUPPEL AND ROBERT P. MANDERSHEID, GENERAL PARTNERS IN THE FLORIDA LIMITED PARTNERSHIP, GULF WINDS APARTMENTS, LTD., APPELLANTS,
v.
GULF WINDS APARTMENTS, INC., A FLORIDA CORPORATION AND A FLORIDA CONDOMINIUM ASSOCIATION, APPELLEE
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The court held that attorney's fees cannot be awarded under section 57.105 when there has been no disposition of the case, and such fees are not a permissible sanction for a motion to dismiss.
[1] An award of attorney's fees is not permissible under section 57.105, Florida Statutes, absent a disposition of the case that establishes a prevailing party.
[2] Florida Rule of Civil Procedure 1.150 does not authorize attorney's fees as a sanction for sham pleadings; it permits only the striking of such pleadings.
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Join FLexlaw to unlock all legal intelligenceDevelopers converted apartments and were sued by the Condo Association for negligence and breach of fiduciary duty. The trial court denied Developers'…
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CAMPBELL, Acting Chief Judge.
Appellants, Ernest Ruppel, Robert P. Mandersheid and Gulf Winds Apartments, Ltd. (Developers), converted Gulf Winds Apartments, Inc. into condominiums. Members of appellee, Gulf Winds Apartments, Inc. (Condo Association) purchased converted condominium units from the Developers. A dispute arose, and Condo Association brought a condominium class action against Developers for negligence and breach of fiduciary duty. Developers moved for and were granted, in part, a motion to dismiss the complaint. Approximately three months later, Condo Association filed an amended five-count complaint. Developers again filed a motion to dismiss the complaint.
In their motion to dismiss, Developers argued that: (1) Condo Association’s claim was barred by the statute of limitations; (2) there were no implied warranties on the sale of a “conversion” condominium unit since the alleged defects did not make the units unfit for occupancy; and (3) the acts alleged in Count V were not breaches of any fiduciary duty owed by an officer or a director of a condominium association.
In response to the motion to dismiss, Condo Association filed a “Motion for Fees and Sanctions for Frivolous Second Motion to Dismiss.” This motion requested an award of attorney’s fees “pursuant to § 57.105, Florida Statutes.” The court denied Developers’ motion to dismiss and granted Condo Association’s motion for fees. Developers appeal.
Developers argue first that the trial court improperly ordered Developers to pay Condo Association’s attorney’s fees because such an award is not provided for either by contract or by statute. Steinhardt v. Eastern Shores White House Association, Inc., 413 So. 2d 785 (Fla. 3d DCA 1982). We agree. Since there was no contract, the only basis for the award was section 57.105, Florida Statutes (1985). Under that section, the court may award attorney’s fees to the “prevailing party” if the losing party failed to raise a justiciable issue of law or fact. For there to be a prevailing party, there must necessarily be a disposition of the case. Steinhardt, 413 So. 2d at 786. There has been no such disposition here.
Moreover, it is not proper to order one party to pay the other’s attorney’s fees as a sanction for sham pleadings. Florida Rule of Civil Procedure 1.150, allows sham pleadings to be stricken; it does not allow the court to use attorney’s fees as a sanction. A court may order a party to pay attorney’s fees if that party fails to attend his own deposition (Rule 1.310(h)), fails to make discovery or answer interrogatories (Rule 1.380), or makes a bad-faith affidavit in support of a motion for summary judgment (Rule 1.510). A court may not, however, order the party who files an unsuccessful motion to dismiss to pay the other party’s attorney’s fees.
Significantly, while the rule governing motions for summary judgment (Rule 1.380) does allow a trial court to use attorney’s fees as a sanction, the Rule governing dismissals does not (Rule 1.420). We find, therefore, that the order granting Condo Association’s motion for attorney’s fees should be reversed.
While Condo Association argues that the trial court order granting its motion for attorney’s fees is not a final appealable order, that issue has been decided by an earlier order of this court denying Condo Association’s motion to dismiss this appeal on those grounds. An attorney fee award is deemed final for purposes of appeal from that order. See Kucera v. Kucera, 330 So. 2d 36 (Fla. 4th DCA 1975).
Developers also argue that their second motion to dismiss should have been granted. Condo Association responds that an order denying a motion to dismiss is not appealable. We agree and decline to address this issue on the ground that we are without jurisdiction to do so. Peavy v. Parrish, 385 So. 2d 1034 (Fla. 4th DCA 1980). Although Developers maintain that under Florida Rule of Appellate Procedure 9.110(h), one final order in the case allows the court to review all earlier nonfinal orders, that Rule anticipates that the court has entered a final judgment in the case. The attorney’s fee order is considered the culmination of a separate case, in the nature of separate supplementary proceedings. Because the attorney’s fee order did not dispose of any substantive issues in the case, it is not a final order for purposes of Rule 9.110(h). The order denying the motion to dismiss was not “entered as a necessary step” or “as an aspect of the final adjudication appealed.” Duncan v. Pullum, 198 So. 2d 658 (Fla. 2d DCA 1967).
We, therefore, reverse the order that awarded Condo Association its attorney’s fees and decline to consider the second issue.
HALL and THREADGILL, JJ., concur.
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Citator
Cited By (11 total)
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Wood v. Price, 546 So. 2d 88 (Fla. 2d DCA 1989)…with that portion of the order holding that the mere granting of a motion to strike a sham pleading does not automatically entitle the moving party to an award of attorney’s fees under section [*90] 57.105. In Ruppel v. Gulf Winds Apartments, Inc., 508 So. 2d 534 (Fla. 2d DCA 1987), this court held that the trial court erred in granting attorney’s fees either as a sanction for filing a sham pleading or pursuant to section 57.105. We stated that it is not proper to award attorney’s fees as a sanction for fili…
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Kirby v. Adkins, 582 So. 2d 1209 (Fla. 5th DCA 1991)…la. 2d DCA 1985). It would not have been proper as a sanction for filing a sham pleading because rule 1.150, Florida Rules of Civil Procedure, allows sham pleadings to be stricken; it does not provide for fees. Ruppel v. Gulf Winds Apartments, Inc., 508 So. 2d 534 (Fla. 2d DCA 1987). The court may have had the inherent authority to award fees if it determined Cushman’s behavior to be contumacious, but the court did not hold her in contempt. See Florida [*1211] Dep’t of Law Enforcement v. Ortega, 508 So. 2d 49…
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Queen E. Harris v. P.S. Mortg. & Inv. Corp., 558 So. 2d 430 (Fla. 3d DCA 1990)…order and, accordingly, strike point III of the defendant’s brief. This is so because the final order under review does not implicitly incorporate the foreclosure order, but, to the contrary, sets it aside. Cf. Ruppel v. Gulf Winds Apartments, Inc., 508 So. 2d 534, 535 (Fla. 2d DCA 1987) (appeal of a final order brings up for review only interlocutory orders entered as “a necessary step” leading to the appealed order); Duncan v. Pullum, 198 So. 2d 658, 661 (Fla. 2d DCA 1967) (same). See generally 3 Fla.Jur.2d…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Duncan v. Pullum, 198 So. 2d 658 (Fla. 2d DCA 1967)
- Steinhardt v. E. Shores White House Ass'n, Inc., 413 So. 2d 785 (Fla. 3d DCA 1982)
- Kucera v. Kucera, 330 So. 2d 36 (Fla. 4th DCA 1975)
- Peavy v. Reed Parrish and Wayne Parrish, 385 So. 2d 1034 (Fla. 4th DCA 1980)