FRED MILEY, ET AL., APPELLANTS,
v.
LAST RESORT FISH CAMP ASSOCIATION, INC., ET AL., APPELLEES
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The Fifth District Court of Appeal reversed a trial court's award of attorneys' fees and costs against intervenors in a derivative shareholder action against a fish camp association's board of directors. The court held that the fee award under Florida Statutes sections 57.105 and 607.147 was improper because the record did not support the statutory thresholds for such awards.
The appellate court reversed the fee award, holding that the record did not support either statutory threshold for awarding fees under sections 57.105 or 607.147.
[1] An award of attorneys' fees and costs under Florida Statutes section 57.105 requires a complete absence of any justiciable issue of law or fact.
[2] An award of attorneys' fees and costs under Florida Statutes section 607.147 requires a derivative action to have been brought without reasonable cause.
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Join FLexlaw to unlock all legal intelligence“Based on our review of the record, we cannot agree that either of these statutory thresholds for an award of fees exists in the present case.”
The court's holding that the trial court erred in awarding fees under either section 57.105 or 607.147.
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Join FLexlaw to unlock all legal intelligenceThe case arose from a complex shareholder derivative action involving Last Resort Fish Camp Association, with multiple related proceedings consolidate…
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PER CURIAM.
Too many resources have already been wasted on the excessively complicated and protracted litigation out of which this appeal of an award of attorneys’ fees and costs arises. We will not compound the felony by wasting the considerable space necessary to provide a meaningful description of the proceedings below. We have previously affirmed, per curiam, the final judgment and fees award in favor of appel-lee against the corporation. Now, we consider the award of fees and costs against the intervenors in favor of the corporation and the director defendants. We reverse.
The fee awards were based upon section 57.105, Florida Statutes, (complete absence of any justiciable issue of law or fact) and Section 607.147, Florida Statutes (derivative action brought “without reasonable cause”). Based on our review of the record,1 we cannot agree that either of these statutory thresholds for an award of fees exists in the present case.
REVERSED.
GOSHORN, C.J., and COBB, J., concur. GRIFFIN, J., concurs and concurs specially with opinion.
. In granting the motion for directed verdict in the derivative action, the trial court stated:
Then there’s the second action, the Inter-venors versus the Board of Directors. The issue in this case is bad faith of the Board of Directors concerning its defense or prosecution of two issues: In the main case, defense of the Bielecki/Murphy action and the Board’s involvement and the satellite issues of the State and local agency contacts, the indemnification issue, and the method of obtaining proxies in this case or in the past.
Although the cases, again, are under one case number, the issues are very separate and distinct. I must say, listening to the testimony it was difficult to determine what was reasonable or not concerning the action of the Defendant/Board of Directors and the Inter-venors’ action.
**
However, based upon all the evidence and the arguments of counsel, the Court finds, concerning the Motion to Dismiss, that it cannot substitute its judgment for the business judgment of the Board of Directors.
Though it can be argued that their actions were not necessarily the keenest, their conduct does not rise to the level sufficient enough for this Court to find bad faith based on the evidence and the mentality of all those who have purchased lots on Pine Island.
GRIFFIN, Judge,
concurring specially.
I additionally conclude that the fee awards were, in the main, improper because they were inadequately documented and included representation both in the main action and in the derivative action. When an application for attorney’s fees is contemplated, especially in cases like this one, attorney time records should be contemporaneous, descriptive and should reflect time increments. With the exception of the fee application of attorney Blair, the lack of adequate time records, in large measure, exacerbated the problem of separating legal services performed in the main case and in the derivative action.