MANFRED SCHATZ, APPELLANT,
v.
JOHN WENAAS, APPELLEE
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Schatz appeals an order awarding attorney's fees to Wenaas under Florida Statute section 57.105. Schatz filed a third-party complaint against Wenaas seeking declaratory relief that Wenaas was the father of a child in a paternity action. The court reversed the fee award, holding that the complaint was not frivolous at the time of filing because the initial HLA test showed only a 93.2% probability of paternity (below the 95% threshold for presumption) and Schatz had personal knowledge supporting his claim.
The court reversed the fee award, holding that the complaint was not frivolous at the time of filing. Although later evidence proved the complaint untenable, the initial HLA test results (93.2% probability) fell below the statutory 95% threshold for creating a presumption of paternity, and Schatz possessed personal knowledge supporting his allegations that Wenaas was the father.
[1] A party is not liable for attorney's fees under section 57.105, Florida Statutes, if justiciable issues existed at the time the action was filed.
[2] Events occurring during litigation that reveal an action is no longer sustainable do not necessarily render the action frivolous for purposes of awarding attorney's fees.
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Join FLexlaw to unlock all legal intelligence“Before a human leukocyte antigen or other scientific test raises a rebuttable presumption of paternity, the statistical probability of paternity must equal or exceed ninety-five per cent. If it is less than ninety-five per cent, as in this case, no presumption arises, and although the results are admissible, they should only be weighed along with other evidence.”
Establishes the statutory framework under section 742.12 showing that the initial test results (93.2%) did not create a presumption and that Schatz had a reasonable basis to pursue his claim.
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Join FLexlaw to unlock all legal intelligenceJane Morgan filed a paternity action against Schatz, alleging he fathered her child and providing HLA test results showing a 93.2% probability of pate…
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PER CURIAM.
Appellant, Manfred Schatz, appeals an order awarding attorney’s fees and related expenses to appellee, John Wenaas pursuant to section 57.105, Florida Statutes (1986). We reverse.
This appeal arose out of an action brought by Jane Morgan to determine the paternity of her minor child. Morgan alleged that Schatz was the father of the child and attached the results of a human leukocyte antigen (HLA) and red blood cell antigen test to her pleadings. The test results indicated a 93.2% probability that Schatz was the father of the child. Schatz denied that he was the father and affirmatively alleged that during the material time period, Morgan had intercourse with other men. Schatz then filed a third party complaint against Wenaas. The complaint, seeking declaratory relief, alleged that We-naas was the father of the child.
The record also contains an affidavit executed by Schatz in which he states that he believed Wenaas was the father and that he had personal knowledge that Morgan and Wenaas were “in bed together” during the period of time that the child was conceived. After subsequent paternity tests indicated that Wenaas was not the child’s father and that a 99.8% probability existed that Schatz was the father, Schatz voluntarily dismissed his third party complaint against Wenaas with prejudice. Wenaas’s subsequent motion for attorney’s fees pursuant to section 57.105 was granted, and Schatz filed a timely notice of appeal from the court’s order awarding those fees and other expenses.
Schatz contends that justiciable issues existed at the time he filed his action against Wenaas and that, therefore, the court erred in awarding attorney’s fees to Wenaas. We agree.
At the time the third party complaint was filed, Schatz had personal knowledge that Morgan had “been in bed” with We-naas during the period of time that the child had been conceived, and he believed Wenaas was the father.
Furthermore, before a human leukocyte antigen or other scientific test raises a rebuttable presumption of paternity, the statistical probability of paternity must equal or exceed ninety-five per cent. If it is less than ninety-five per cent, as in this case, no presumption arises, and although the results are admissible, they should only be weighed along with other evidence. § 742.12, Fla.Stat. (1986). Here, the results of the first test performed indicated only that there was a 93.2% probability that Schatz was the child’s father. At the time the action was commenced, therefore, it was not so clearly devoid of merit both on the facts and the law as to make it completely untenable, and the court erred in awarding attorney’s fees. Ferm v. Saba, 444 So. 2d 976 (Fla. 2d DCA 1983).
Upon receiving the second test results indicating that Wenaas was not the father, Schatz dismissed the action with prejudice. Events occurring during the course of litigation which reveal that the action is no longer sustainable do not necessarily convert a case into one in which fees should be awarded under section 57.105, and did not do so in this case. See Greater Clear-water Chamber of Commerce, Inc. v. Modem Graphic Arts, Inc., 464 So. 2d 594 (Fla. 2d DCA 1985). We, accordingly, reverse the trial court’s order awarding attorney’s fees and related expenses. In light of the foregoing, we need not address the other points raised by Schatz.
Reversed.
CAMPBELL, Acting C.J., and SCHOONOVER and HALL, JJ., concur.
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Huie v. Dent & Cook, P.A., 635 So. 2d 111 (Fla. 2d DCA 1994)…court has repeatedly suggested in dicta that a trial court might have the authority to award fees for litigation that continues after a case becomes clearly 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 o…
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Roxanna G. Lambert v. Rickie Nelson, 573 So. 2d 54 (Fla. 1st DCA 1990)…developments which render the claim or the defense to be without justiciable issue in law or fact should not subject the losing party to attorney’s fees.” Schwartz v. W-K Partners, 530 So. 2d 456, 457 (Fla. 5th DCA 1988). See also Schatz v. Wenaas, 510 So. 2d 1125 (Fla. 2d DCA 1987) (attorney’s fee award was not warranted upon facts showing that Schatz, the putative father named in a paternity suit, filed third-party suit against another man he alleged was the child’s father, and then dismissed that suit when…
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Murphy v. Wisu Props., Ltd., 895 So. 2d 1088 (Fla. 3d DCA 2004)…ners, 530 So. 2d at 457). See Carnival Leisure Indus., Ltd. v. Holzman, 660 So. 2d at 412 (“Thus, not every litigant who voluntarily dismisses a case is subject to the sting of attorney’s fees pursuant to section 57.105”); see also Schatz v. Wenaas, 510 So. 2d 1125 (Fla. 2d DCA 1987) (attorney’s fees award reversed in paternity action where the putative father filed third party suit against the man he alleged to be the child’s father, and then dismissed that suit when blood tests subsequently revealed that the…
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
- Lennart J. Ferm v. Saba, 444 So. 2d 976 (Fla. 2d DCA 1983)
- Greater Clearwater Chamber OF Commerce, Inc. v. Modern Graphic Arts, Inc., 464 So. 2d 594 (Fla. 2d DCA 1985)
- Rosenthal v. Rosenthal, 464 So. 2d 594 (Fla. 3d DCA 1985)