MARYLAND CASUALTY INSURANCE COMPANY, A CORPORATION, A/S/O SOUTHWEST REFRIGERATION & AIR CONDITIONING COMPANY, APPELLANT,
v.
SEMMER ELECTRIC, INC., A FLORIDA CORPORATION, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that the circuit court erred in awarding attorney's fees under section 57.105 because the action was not devoid of merit and the order lacked a required finding.
A summary judgment was rendered in favor of the appellee. The circuit court awarded attorney's fees to the appellee pursuant to section 57.105, Florid…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Frivolous Actions cases and more on FLexlaw
PER CURIAM.
We agree with the appellant’s contention that the circuit court erred in awarding attorney’s fees to the appellee pursuant to section 57.105, Florida Statutes (1985). “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.” Brinson v. Creative Aluminum Products, 519 So. 2d 59, 60 (Fla. 2nd DCA 1988).
Here, a summary judgment was rendered in favor of the appellee showing that there was no genuine issue as to any material fact and that the appellee was entitled to a judgment as a matter of law. However, this standard is not equivalent to the requirement of section 57.105 of frivolousness for an award of attorney’s fees. Whitten v. Progressive Casualty Insurance Co., 410 So. 2d 501 (Fla.1982). Our review of the record reveals that there were factual issues upon which the appellant based his lawsuit and that the court erred in awarding attorney’s fees.
We further find that the order assessing attorney’s fees is technically deficient because it contains no finding by the circuit court that there was a complete absence of a justiciable issue by the losing party. See § 57.105, Fla.Stat. (1985).
Accordingly, we reverse the order awarding attorney’s fees.
SCHEB, A.C.J., and DANAHY and HALL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Filmore Chaiken and Robert T. Tenen v. Suchman, 694 So. 2d 115 (Fla. 3d DCA 1997)…nst. Co., 638 So. 2d 998, 999-1000 (Fla. 4th DCA 1994); Rojas v. Drake, 569 So. 2d 859, 860 (Fla. 2d DCA 1990); Personnel One, Inc. v. John Sommerer & Co., P.A., 564 So. 2d 1217, 1219 (Fla. 3d DCA 1990); Maryland Cas. Ins. Co. v. Semmer Elec., Inc., 535 So. 2d 670, 671 (Fla. 2d DCA 1988)(holding that standard for entry of summary judgment “is not equivalent to the requirement of section 57.105 of frivolousness for an award of attorney’s fees”). In the instant case, the defendant moved for summary judgment ar…1 / 2
-
Rojas v. Drake, 569 So. 2d 859 (Fla. 2d DCA 1990)…of attorney’s fees is not equivalent to the standard required to prevail on a summary judgment, judgment on the pleadings, or even a motion to dismiss for failure to state a cause of action. Whitten; Maryland Casualty Ins. Co. v. Semmer Elec., Inc., 535 So. 2d 670 (Fla. 2d DCA 1988). Rather, an award of attorney’s fees under section 57.105 is only proper where the action is so clearly devoid of merit both on the facts and the law as to be completely untenable. Ferm v. Saba, 444 So. 2d 976 (Fla. 2d DCA 1983).…
-
Ware v. Land Title Co. OF Fla., Inc., 582 So. 2d 46 (Fla. 2d DCA 1991)…arty. This finding must be express and without it an order awarding such fees is technically deficient and must be reversed. Whitten v. Progressive Casualty Ins. Co., 410 So. 2d 501 (Fla.1982); [*47] Maryland Casualty Ins. Co. v. Semmer Elec., Inc., 535 So. 2d 670 (Fla.2d DCA 1988); Apgar & Markham Constr., Inc. v. Macasphalt, Inc., 424 So. 2d 41 (Fla.2d DCA 1982). The orders in this case did not contain the necessary findings and, therefore, were deficient. We, accordingly, reverse and remand with direction…
Authorities Cited
- Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501 (Fla. 1982)
- Hilde W. Brinson v. Creative Aluminum Prods., Inc., 519 So. 2d 59 (Fla. 2d DCA 1988)