SUZANNE SCHNELLENBERGER, APPELLANT/CROSS-APPELLEE,
v.
LINDA MERSLICH, APPELLEE/CROSS-APPELLANT
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Schnellenberger appeals an award of attorney's fees to Merslich in the aftermath of fraud and civil theft litigation between the aunt and niece. The court reverses the fee award, finding that Schnellenberger's original civil theft claim had substantial factual and legal support, making the fee award under Florida Statute § 772.11 improper.
The court reverses the attorney's fees award because Schnellenberger's original civil theft claim was clearly supported by substantial fact and law, making an award of attorney's fees to Merslich under § 772.11 incorrect.
[1] A party is not entitled to attorney's fees under a civil theft statute when their underlying claim was supported by substantial fact or legal support.
[2] An appellate court's affirmance of a denial of treble damages does not constitute a reversal of a civil theft finding.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Unfortunately, the parties thereafter improperly relied on dicta in that opinion, and operated under the misapprehension that our affirmance of the denial of treble damages was tantamount to a reversal of the civil theft finding. It was not.”
Explains the fundamental error underlying the fee award—the misinterpretation of the prior appellate decision regarding the civil theft claim.
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Join FLexlaw to unlock all legal intelligenceSchnellenberger sued her aunt Merslich after being fraudulently induced to sign papers transferring contents of a Totten trust bank account into a joi…
The full statement of facts, procedural history, and disposition for this case are member content.
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LEVY, Judge.
Suzanne Schnellenberger appeals from a final order awarding $27,750 in attorney’s fees to Linda Merslich, stemming from previous litigation where Schnellenberger had sued Merslich for fraud and civil theft. We reverse the order under review.
Schnellenberger originally sued her aunt, Merslich, after being induced by Merslich to sign papers transferring the contents of a Totten trust bank account, unknowingly held by Schnellenberger, into a joint account with Merslich.1 The trial court found that Merslich committed fraud, larceny by trick and civil theft, and awarded Schnellenberger compensatory damages of $50,566.84. The trial court also awarded punitive damages of $25,000 based upon the fraud and larceny by trick, but declined to award treble damages under the civil theft statute. In the ensuing direct appeal, not only did Merslich appeal several aspects of the final judgment, but Schnellen-berger cross-appealed the denial of treble damages. This court affirmed, in all respects, on both the direct appeal and cross-appeal. See Merslich v. Schnellenberger, 578 So. 2d 725-26 (Fla. 3d DCA 1991).
Unfortunately, the parties thereafter improperly relied on dicta in that opinion, and operated under the misapprehension that our affirmance of the denial of treble damages was tantamount to a reversal of the civil theft finding. It was not. Proceeding under this misapprehension, Merslich was awarded attorney’s fees under Section 772.-11, Florida Statutes (1991). However, since Schnellenberger’s original claim was clearly not “without substantial fact or legal support,” the trial court’s award of attorney’s fees to Merslich was incorrect, and is, accordingly, reversed. See § 772.-11, Fla.Stat. (1991).
Our resolution of Schnellenberger’s appeal moots Merslich’s cross-appeal.
Reversed.
. The trial court specifically found, "LINDA MERSLICH fraudulently and under false pre tenses induced SUZANNE SCHNELLENBER-GER to sign papers, the contents of which SUZANNE SCHNELLENBERGER did not know or understand, which transferred SUZANNE SCHNELLENBERGER's Totten Trust inheritance to a joint account in the names of LINDA MERSLICH and SUZANNE SCHNELLENBER-GER. The documents that SUZANNE SCHNEL-LENBERGER signed were not explained to her and she did not read them, relying on LINDA MERSLICH's half-truth explanation."