MILTON J. BARBER, APPELLANT,
v.
OAKHILLS ESTATES PARTNERSHIP, A FLORIDA GENERAL PARTNERSHIP, APPELLEE
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The court held that attorney's fees under section 57.105(1) require the entire action to be frivolous, not just a portion.
[1] An award of attorney's fees under section 57.105(1), Florida Statutes, requires a complete absence of a justiciable issue of law or fact as to the entire action.
[2] A trial court cannot award attorney's fees under section 57.105(1) for only a portion of an action if other counts, founded on the same facts, are found to be justiciable…
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Join FLexlaw to unlock all legal intelligencePlaintiff sought an easement via three counts, each based on the same facts. The trial court granted summary judgment for the defendant on all counts …
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PATTERSON, Judge.
In this consolidated appeal, Milton J. Barber, the plaintiff below, challenges an order of the trial court determining the entitlement of defendant Oakhills Estates Partnership (the Partnership) to attorney’s fees and a final judgment awarding such fees. We reverse.
Barber, the owner of a landlocked parcel of real property, brought an action to obtain an easement for ingress and egress across the adjacent property of the Partnership. The complaint, founded on a single set of facts, was pled in three counts. Each count sets forth an alternative legal theory under which Barber sought relief.1
After motion and hearing, the trial court granted summary judgment in favor of the Partnership as to count I on March 1, 1990, and as to counts II and III on March 28, 1990. The Partnership then filed a motion for the award of attorney’s fees pursuant to section 57.105(1), Florida Statutes (1989). By order dated August 29, 1990, the trial court found that count I was frivolous and that counts II and III were not. Based on these findings, the court determined that the Partnership was entitled to an award of fees as to count I only. On October 2, 1990, the court entered a final judgment against Barber and awarded $3,825 in attorney’s fees to the Partnership.
This award was error. To award fees pursuant to section 57.105(1), there must be a complete absence of a justiciable issue of law or fact which renders the action completely untenable. It is necessary for the trial court to make such determination as to “the entire action, not merely a portion thereof.” Wood v. Price, 546 So. 2d 88 (Fla. 2d DCA 1989), rev. denied, 553 So. 2d 1166 (Fla.1989); Glover v. School Bd. of Hillsborough County, 462 So. 2d 116 (Fla. 2d DCA 1985). That did not and could not occur here, because the trial court found that counts II and III, founded on the same facts as count I, were not frivolous.
Reversed.
LEHAN, A.C.J., and PARKER, J., concur. . Count I — implied easement; count II — easement by prescription; and count III — a statutory way of necessity pursuant to section 704.-01(2), Fla.Stat. (1989).
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Buxton v. Buxton, 963 So. 2d 950 (Fla. 2d DCA 2007)…utions to the household barely covered his groceries and his share of the utilities. Moreover, there was no evidence that the former wife’s expenses had been [*955] reduced by her companion’s work around the house. Id. In contrast, in Pill v. Pill, 583 So. 2d 1114, 1114 (Fla. 5th DCA 1991), the court affirmed a reduction in alimony based on the trial court’s finding that the former wife’s live-in companion was partially supporting her by providing yard work, pool cleaning, house and pool maintenance, and auto…
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Ciaramello v. D'Ambra, 613 So. 2d 1324 (Fla. 2d DCA 1991)…enable. Whitten v. Progressive Casualty Ins. Co., 410 So. 2d 501, 506 (Fla.1982). It follows that it is necessary that the court make that determination as to “the entire action, not merely a portion thereof.” Barber v. Oakhills Estates Partnership, 583 So. 2d 1114 (Fla. 2d DCA 1991); Wood v. Price, 546 So. 2d 88 (Fla. 2d DCA 1989), rev. denied, 553 So. 2d 1166 (Fla.1989). In contrast, section 772.11 provides a civil remedy for theft. It entitles a defendant to recover reasonable attorney’s fees and court cos…
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Atkins v. Atkins, 611 So. 2d 570 (Fla. 1st DCA 1992)…expenses, some of which the former husband was paying, the evidence of Appellant’s comfortable financial condition effectively disposed of any present claim of additional needs. Lanier v. Lanier, 594 So. 2d 809, 811 (Fla. 1st DCA1992); Pill v. Pill, 583 So. 2d 1114 (Fla. 5th DCA1991). The facts in the case at bar are distinguishable from those in Sinclair, 594 So. 2d at 807, 809, where the former husband had the ability to pay and the award of permanent periodic alimony was insufficient to meet the former wife…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wood v. Price, 546 So. 2d 88 (Fla. 2d DCA 1989)
- McKinley Glover, III v. The Sch. Bd. OF Hillsborough Cnty., 462 So. 2d 116 (Fla. 2d DCA 1985)