BEVERLY MITCHELL, APPELLANT,
v.
SCHINDLER HAUGHTON ELEVATOR COMPANY, ETC., ET AL., APPELLEES
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Beverly Mitchell appealed an award of attorney's fees under Florida Statute § 57.105 after filing a negligence action against Schindler Haughton and other defendants based on an elevator accident. The Third District Court of Appeal reversed the fee award, holding that the lawsuit was not frivolous because it was based on sworn deposition testimony identifying the defendants as proper parties at the time of filing.
The court reversed the attorney's fees award, holding that the action was not frivolous because sworn deposition testimony at the time of filing clearly indicated both defendants were proper parties, and facts at the time of suit did not demonstrate a total lack of a justiciable issue. The subsequent discovery revealing the defendants' non-involvement does not constitute a sufficient basis for awarding attorney's fees under § 57.105.
[1] A court may not award attorney's fees under section 57.105, Florida Statutes, unless the facts demonstrate a total lack of a justiciable issue at the time the suit was fi…
[2] Sworn deposition testimony taken prior to the filing of a lawsuit can provide a sufficient basis for believing that a party was properly joined as a defendant.
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Join FLexlaw to unlock all legal intelligence“We reverse the attorney fee award because we cannot say that the facts demonstrate a total lack of a justiciable issue at the time suit was filed which would support a finding that the action was frivolous.”
Establishes the standard for frivolousness: a total lack of justiciable issue at the time of filing.
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Join FLexlaw to unlock all legal intelligenceMitchell filed a negligence action one day before the statute of limitations expired against elevator company defendants based on a security guard's d…
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PER CURIAM.
This is an appeal of an award of attorney’s fees pursuant to section 57.105, Florida Statutes (1989). We reverse.
One day before the statute of limitations expired, appellant, plaintiff below, filed a negligence action against appellees, defendants below, based on an elevator accident. Allegations of these two defendants’ negligence were based on the deposition, taken almost two years previous to the action’s filing, of a security guard at the facility where the elevator was located who stated that he had seen Miami Elevator and Otis “out there [at the facility] once or twice.” Defense counsel answered the complaint, citing numerous defenses.
Moreover, the defendants soon after advised plaintiff by letter that they had nothing to do with the elevator involved in the incident. Plaintiff nevertheless maintained the action pending final verification of defendants’ claim. Otis and Miami Elevator filed motions for summary judgment and for assessment of attorney’s fees. Plaintiff then filed a notice of voluntary dismissal. The motion for attorney's fees was granted. Rehearing was denied and this appeal followed.
Plaintiff contends that it was error to award attorney’s fees since the suit against the defendants was based, in good faith, on the testimony of an independent witness.
Plaintiff contends that although these defendants were subsequently found to have been misidentified by the witness; they were properly joined initially. For their part, defendants claim that attorney’s fees were rightly awarded since plaintiff’s suit was frivolous because counsel failed to perform any pre-suit investigation to determine which of four elevator companies installed and maintained the subject elevator.
We reverse the attorney fee award because we cannot say that the facts demonstrate a total lack of a justiciable issue at the time suit was filed which would support a finding that the action was frivolous. E.g., Muckenfuss v. Deltona Corp., 508 So. 2d 340 (Fla.1987); Whitten v. Progres sive Cas. Ins., 410 So. 2d 501 (Fla.1982); Personnel One, Inc. v. John Sommerer and Co., 564 So. 2d 1217 (Fla. 3d DCA 1990). In the instant case, sworn deposition testimony taken prior to suit being filed clearly indicated that both Otis and Miami Elevator were proper defendants.
Thus, in the initial pleading stages and until it was established to the contrary through affidavits filed in the record, there was sufficient indication that the defendants were involved in this accident and were thus properly joined in the suit. McHan v. Huggins, 459 So. 2d 1172 (Fla. 5th DCA 1984); Stevenson v. Rutherford, 440 So. 2d 28 (Fla. 4th DCA 1983). The fact that subsequent discovery revealed that neither defendant was involved in the accident does not constitute sufficient basis for an award of attorney’s fees pursuant to section 57.105. Greater Clearwater Chamber of Commerce v. Modern Graphic Arts, 464 So. 2d 594 (Fla. 2d DCA 1985); Klein v. Layne, Inc., 453 So. 2d 203 (Fla. 4th DCA 1984).
Based on the foregoing, the attorney’s fees award is reversed.
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Carnival Leisure Indus., Ltd. v. Holzman, 660 So. 2d 410 (Fla. 4th DCA 1995)…priee tag of bearing the other party’s attorney’s fees by virtue of an award under Section 57.105, Florida Statutes (1981). Klein v. Layne, Inc. of Fla., 453 So. 2d 203, 205 (Fla. 4th DCA 1984); see also Mitchell v. Schindler Haughton Elevator Co., 587 So. 2d 636 (Fla. 3d DCA 1991); Solimando v. Aloha Medical Ctr., 594 So. 2d 850 (Fla. 2d DCA 1992). Thus, not every litigant who voluntarily dismisses a case is subject to the sting of attorney’s fees pursuant to section 57.105. See generally Fairview Propertie…
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Simkins Indus., Inc. v. Lawyers Title Ins. Corp., 696 So. 2d 384 (Fla. 3d DCA 1997)…Whitten, supra. The fact that subsequent discovery established that there was no justiciable issue does not justify the award under review. Noggle v. Turner Cattle Co., 656 So. 2d 619 (Fla. 2d DCA 1995); Mitchell v. Schindler Haughton Elevator Co., 587 So. 2d 636 (Fla. 3d DCA 1991); Goldstein v. Richter, 538 So. 2d 473 (Fla. 4th DCA 1989); Stevenson v. Rutherford, 440 So. 2d 28 (Fla. 4th DCA 1983). Reversed. GERSTEN, J., concurs. COPE, J., dissents. . Counsel for Green and Lawyers Title each submitted af…
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Layda Cardenas Mazzorana v. Mazzorana, 703 So. 2d 1187 (Fla. 3d DCA 1997)…an initial pleading raised a potentially meritorious claim, defendants were not entitled to an award of fees under section 57.105 when subsequent discovery revealed that plaintiffs claim lacked merit. See Mitchell v. Schindler Haughton Elevator Co., 587 So. 2d 636, 637 (Fla. 3d DCA 1991); see also Greater Clearwater Chamber of Commerce, Inc. v. Modern Graphic Arts, Inc., 464 So. 2d 594, 594 (Fla. 2d DCA 1985) (“Events during the course of a lawsuit which reveal that the litigation is not sustainable do not ne…
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
- Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501 (Fla. 1982)
- Muckenfuss v. Deltona Corp., 508 So. 2d 340 (Fla. 1987)
- Klein v. Layne, 453 So. 2d 203 (Fla. 4th DCA 1984)
- Stevenson v. Rutherford, 440 So. 2d 28 (Fla. 4th DCA 1983)
- Pers. ONE, Inc. v. John Sommerer & Co., P.A., 564 So. 2d 1217 (Fla. 3d DCA 1990)
- McHAN v. Huggins, 459 So. 2d 1172 (Fla. 5th DCA 1984)
- 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)