HILDE W. BRINSON, APPELLANT,
v.
CREATIVE ALUMINUM PRODUCTS, INC., APPELLEE
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Brinson appeals a summary judgment in favor of Creative Aluminum Products regarding the forced sale of her homestead property to satisfy a judgment debt. The court affirmed the summary judgment on the merits but reversed the award of attorney's fees, finding the defense was not so clearly devoid of merit as to be frivolous.
The court affirmed that homestead property may be subject to forced sale to satisfy the judgment, but reversed the award of attorney's fees because the legal issues surrounding Brinson's defense were not so clear as to make the defense frivolous or completely untenable.
[1] A homestead is subject to forced sale to satisfy a judgment for obligations contracted for its improvement.
[2] Attorney's fees may be awarded under section 57.105, Florida Statutes, only when an action or defense is so clearly devoid of merit, both factually and legally, as to be…
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Join FLexlaw to unlock all legal intelligence“Attorney's fees may only be awarded pursuant to that statute when the action brought or the defense raised is so clearly devoid of merit both on the facts and the law as to be completely untenable.”
Establishes the legal standard for awarding attorney's fees under section 57.105, Florida Statutes
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Join FLexlaw to unlock all legal intelligenceBrinson and Creative entered into a contract for home improvements. Creative obtained a judgment against Brinson in county court. When Creative attemp…
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SCHOONOVER, Judge.
The appellant, Hilde W. Brinson (Brin-son), appeals a final summary judgment entered in favor of the appellee, Creative Aluminum Products, Inc. (Creative). We find that the trial court erred in assessing attorney’s fees against Brinson, but we affirm in all other respects.
Brinson and Creative entered into a contract for improvements to Brinson’s homestead. When a dispute arose over the parties’ obligations under the contract, Creative filed an action in the county court and recovered a judgment against Brinson. Brinson resisted Creative’s attempts to execute on its judgment by filing an affidavit claiming her homestead was not subject to forced sale. In response, Creative filed an action in circuit court to have the homestead status of the property determined. Brinson answered Creative’s complaint and filed an affirmative defense claiming that certain of the sums included in the county court judgment should not be considered an obligation contracted for the improvement of her property so as to remove it from the constitutional protection against forced sale. The trial court entered a summary judgment in favor of Creative and awarded Creative $1275 in attorney’s fees pursuant to section 57.105, Florida Statutes (1985), after finding that there was a complete absence of a justiciable issue of either law or fact raised by Brinson. This timely appeal followed.
Although we find no merit in Brinson’s contention that the trial court erred in holding that her homestead property is subject to forced sale in order to satisfy the county court judgment, we do find that the court erred in awarding attorney’s fees to Creative pursuant to section 57.105. Attorney’s fees may only be awarded pursuant to that statute when the action brought or the defense raised is so clearly devoid of merit both on the facts and the law as to be completely untenable. Ferrn v. Saba, 444 So. 2d 976 (Fla. 2d DCA 1983). The legal issues surrounding the defense raised in this case are not so clear as to make Brinson’s defense frivolous or completely untenable. We, accordingly, reverse and remand with instructions to strike that portion of the judgment which awarded attorney’s fees to Creative. We affirm the judgment in all other respects.
Reversed and remanded with instructions.
DANAHY, C.J., and THREADGILL, J., concur.
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Citator
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Martin Cnty. Conservation Alliance & 1000 Friends of Fla., Inc. v. Martin Cnty., 73 So. 3d 856 (Fla. 1st DCA 2011)…. 2d DCA 2002) (“An award of attorney’s fees pursuant to section 57.105 is appropriate only when the action is ‘so clearly devoid of merit both on the facts and the law as to be completely untenable.’ ”) (quoting Brinson v. Creative Aluminum Prods., 519 So. 2d 59, 60 (Fla. 2d DCA 1988)). Similarly, in Goldfisher v. Ivax Corp., 827 So. 2d 1110, 1111 (Fla. 3d DCA 2002), the Third District held that the appellee could not recover appellate attorney’s fees under section 57.105 because, although the appellant “wa…
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Stagl v. Bridgers, 807 So. 2d 177 (Fla. 2d DCA 2002)…atutes (1997). We reverse. An award of attorney’s fees pursuant to section 57.105 is appropriate only when the action is “so clearly devoid of merit both on the facts and the law as to be completely untenable.” Brinson v. Creative Aluminum Prods., 519 So. 2d 59, 60 (Fla. 2d DCA 1988). Here, Stagl’s complaint was dismissed three times for failure to state a cause of action. The last such dismissal was with prejudice. However, merely failing to state a cause of action is not sufficient, in and of itself, t…
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State v. Thompson, 552 So. 2d 318 (Fla. 2d DCA 1989)…eriod of time. Attorney’s fees may only be awarded pursuant to section 57.105, Florida Statutes, when the action is so clearly devoid of merit both on the facts and the law as to be completely untenable. Brinson v. Creative Aluminum Products, Inc., 519 So. 2d 59 (Fla. 2d DCA 1988). If an action is not frivolous when it is initiated, then the fact that it later becomes frivolous will not support an award of fees. Marexcelso Compania Naviera v. Fla. Nat’l Bank, 533 So. 2d 805 (Fla. 4th DCA 1988). Reversed.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lennart J. Ferm v. Saba, 444 So. 2d 976 (Fla. 2d DCA 1983)