CAROLINE SYKES, MARTHA SYKES AND PHILIP SYKES, AND THE LAW FIRM OF MATTLIN & MCCLOSKY, APPELLANTS,
v.
ST. ANDREWS SCHOOL, BRIAN DOUCETTE AND LORRAINE DOUCETTE, THOMAS SUGALSKI AND SUSAN WEISS, APPELLEES
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The court affirmed an award of attorney's fees under Florida Statute §57.105 against plaintiffs who filed suit against a minor's mother based on negligent failure to exercise parental control, despite having no factual basis for such a claim. The court also awarded fees for the frivolous appeal after a controlling Supreme Court precedent eliminated any meritorious issues.
The court affirmed the trial court's award of attorney's fees under §57.105, finding a complete absence of a justiciable issue. The court also awarded §57.105 fees for the appeal itself, limited to work performed after the controlling Supreme Court precedent in Ganz became final, as appellants had no meritorious issues to raise once that decision became final.
[1] A court shall award attorney's fees to the prevailing party under section 57.105, Florida Statutes, if there is a complete absence of a justiciable issue of law or fact.
[2] Filing a lawsuit without a factual basis for a claim against a party can warrant the assessment of attorney's fees under section 57.105, Florida Statutes.
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Join FLexlaw to unlock all legal intelligence“In order to prevail on that theory plaintiffs would have had to prove that the child had a propensity to engage in this particular conduct which the parent knew or should have known could cause injury to another.”
Establishes the legal standard for parental negligence liability that plaintiffs failed to satisfy
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Join FLexlaw to unlock all legal intelligenceThree years after an alleged tort by a minor, plaintiffs sued the minor and other defendants. Plaintiffs amended their complaint to add the defendant …
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PER CURIAM.
We deny rehearing but substitute the following opinion for our opinion filed August 11, 1993.
Appellants seek review of an order awarding attorney’s fees pursuant to section 57.105, Florida Statutes (1991), which provides that the court shall award the prevailing party attorney’s fees, to be paid equally by the losing party and that party’s counsel, if the court finds a “complete absence of a justiciable issue of either law or fact.” We entirely agree with the trial court’s conclusion that attorney’s fees should have been assessed under the statute.
Three years after a tort was allegedly committed by a minor, plaintiffs filed suit against the minor and other defendants. The plaintiffs subsequently amended their complaint to add the mother of the defendant minor, based upon her negligent failure to exercise parental control over her child. In order to prevail on that theory plaintiffs would have had to prove that the child had a propensity to engage in this particular conduct which the parent knew or should have known could cause injury to another. Snow v. Nelson, 475 So. 2d 225 (Fla.1985), approving Gissen v. Goodwill, 80 So. 2d 701 (Fla. 1955).
After the parent obtained a summary judgment, because there was no evidence supporting the theory of recovery against her, she moved for attorney’s fees under section 57.105. In those proceedings it became apparent that she had been added as a party to the suit notwithstanding plaintiffs counsel having no knowledge of any facts which could make her responsible for her son’s actions. To us, filing a lawsuit with no factual basis is a classic situation in which fees should be assessed under the statute.
Appellee has moved for section 57.105 fees for this appeal, and we grant her motion. Although this appeal had one meritorious issue at the time it was taken — whether 57.-105 fees must be requested in the pleadings — our supreme court resolved that issue adversely to appellants in Ganz v. HZJ, Inc., 605 So. 2d 871 (Fla.1992). At that point appellants were left with no justiciable issues on appeal. Ganz was decided by the supreme court on October 8, 1992, and became final on October 23, 1992, because there was no motion for rehearing. Thus when appellants filed their initial brief on this appeal, which was not due until after Gam became final, appellants knew or should have known there were no justiciable issues to raise on this appeal. We therefore grant appellees’ motion for section 57.105 attorney’s fees for this appeal, but limit it to all work performed by counsel for appellee after Ganz became final.
We remind trial judges and the bar that our legislature said in section 57.105 that courts “shall” assess attorney’s fees for the bringing of frivolous litigation. Galbraith v. Inglese, 402 So. 2d 574 (Fla. 4th DCA1981). In the present case defense counsel vigorously attempted to dissuade plaintiffs counsel from bringing this frivolous action against his client, but his efforts were to no avail. When his prediction came to fruition he properly sought attorney’s fees and vigorously defended them on this appeal. We commend this and encourage it so that the intent of the statute is effectuated.
Affirmed.
ANSTEAJD and KLEIN, JJ., and OWEN, WILLIAM C., Jr., Senior Judge, concur.
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Weatherby Assocs., Inc. v. Ballack, 783 So. 2d 1138 (Fla. 4th DCA 2001)…g tantamount to a finding that the action is frivolous or completely untenable. Muckenfuss v. Deltona Corp., 508 So. 2d 340, 341 (Fla.1987); Berman & Feldman v. Winn Dixie, Inc., 684 So. 2d 320, 322-23 (Fla. 4th DCA 1996); Sykes v. St. Andrews Sch., 625 So. 2d 1317 (Fla. 4th DCA 1993). The trial court’s finding must be based upon substantial competent evidence presented to the court at the hearing on attorney’s fees or otherwise before the court and in the trial court record. Strothman v. Henderson Mental Heal…
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Procacci Commercial Realty, Inc. v. Dep't OF Health & Rehabilitative Servs., 690 So. 2d 603 (Fla. 1st DCA 1997)…ion 57.105, Florida Statutes (1995), which is mandatory. "We remind trial judges and the bar that our legislature said in section 57.105 that courts ‘shall’ assess attorney’s fees for the bringing of frivolous litigation.” Sykes v. St. Andrews Sch., 625 So. 2d 1317, 1319 (Fla. 4th DCA 1993)(appel-late attorney's fees awarded where party did not abandon appeal after supreme court resolved sole justiciable issue). Where a suit is "completely devoid of a justiciable issue of either law or fact ... the statute's m…
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DaCOSTA v. State, 647 So. 2d 818 (Fla. 1994)…HARDING, Justice. We have for review DaCosta v. State, 625 So. 2d 1317 (Fla.4th DCA 1993), in which the district court certified the same question it certified in Herrington v. State: WHETHER A TRIAL COURT’S FAILURE TO MAKE THE REQUISITE STATUTORY FINDINGS UNDER SECTION 775.084(l)(a)l AND 2 IS SUBJECT TO THE SAME HARM…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Townsend v. State, 80 So. 2d 701 (Fla. 1955)
- Ganz v. HZJ, Inc., 605 So. 2d 871 (Fla. 1992)
- Galbraith v. Inglese, 402 So. 2d 574 (Fla. 4th DCA 1981)
- Snow v. Nelson, 475 So. 2d 225 (Fla. 1985)