STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION, APPELLANT,
v.
KISINGER CAMPO & ASSOCIATES, CORPORATION, APPELLEE
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The Department of Transportation appealed a summary judgment for breach of contract and declaratory relief in favor of Kisinger Campo & Associates. The appellate court affirmed the underlying judgment but reversed the trial court's award of attorney's fees under section 57.105, finding that the Department's contractual defense, though unsuccessful, was not frivolous.
The trial court properly entered summary judgment for KCA on the breach of contract claim, but abused its discretion in awarding attorney's fees to KCA under section 57.105 because the Department's defense, though ultimately meritless, was not frivolous.
[1] A trial court's prior denial of a motion for summary judgment demonstrates the existence of a justiciable issue of law or fact.
[2] An award of attorney's fees under section 57.105 requires a finding of a complete absence of a justiciable issue of law or fact raised by the losing party.
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“The finding of a lack of a justiciable defense is tantamount to a finding that the defense asserted was frivolous.”
Establishes the relationship between frivolousness and lack of justiciable merit in the context of section 57.105 attorney's fees awards.
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Join FLexlaw to unlock all legal intelligenceThe Department withheld payment under one contract with KCA, claiming KCA had over-billed under previous contracts. KCA sued for breach of contract an…
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PER CURIAM.
The Department of Transportation (Department) appeals the final summary judgment entered in favor of Kisinger Campo and Associates, Corporation (KCA) in the latter’s action for breach of contract and declaratory judgment. The action arose out of the Department’s withholding of payment under one contract with KCA due to alleged over-billing by KCA under previous contracts between the parties. We find no merit in the Department’s arguments with regard to the final summary judgment, but we agree that the award to KCA of attorney’s fees pursuant to section 57.105, Florida Statutes (1991), was an abuse of discretion.
The trial court awarded KCA attorney’s fees and costs pursuant to section 57.105 upon a finding that the Department failed to raise a justiciable defense to the breach of contract count of KCA’s third amended complaint. We disagree. The finding of a lack of a justiciable defense is tantamount to a finding that the defense asserted was frivolous. Whitten v. Progressive Casualty Ins. Co., 410 So. 2d 501 (Fla. 1982). Although the Department’s defense was ultimately found to be without merit for purposes of summary judgment, that finding was based on the trial court’s analysis and interpretation of a contractual provision to not mean what it apparently states. Such an analysis belies a finding that the Department’s defense was frivolous. See City of Largo v. LaGrande, 650 So. 2d 178, 179 (Fla. 2d DCA 1995) (“The standard for granting summary judgment is not the equivalent of frivolousness.”).
Accordingly, we affirm the final summary judgment but reverse the section 57.105 attorney’s fee award to KCA. Affirmed in part; reversed in part.
FRANK, C.J., and THREADGILL and LAZZARA, JJ., concur.
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Wendy's OF N.E. Fla., Inc. v. Vandergriff, 865 So. 2d 520 (Fla. 1st DCA 2003)…ficate of insurance named Wendy’s as an additional insured. Wendy’s loss in the declaratory judgment action by summary judgment does not necessarily imply that Wendy’s argument was frivolous. See State, Dep’t of Transp. v. Kisinger Campo & Assocs., 661 So. 2d 58 (Fla. 2d DCA 1995). From the record before us, which does not include the transcript of the hearing on attorney’s fees, it does not appear that Wendy’s defense was so completely lacking in merit as to support the trial court’s finding that Wendy’s p…
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Country Place Cmty. Ass'n, Inc. v. J.P. Morgan Mortg. Acquisition Corp., 51 So. 3d 1176 (Fla. 2d DCA 2010)…f review of an order denying a motion for attorney’s fees and costs under section 57.105(1) is abuse of discretion. See Gahn v. Holiday Prop. Bond, Ltd., 826 So. 2d 423, 425-26 (Fla. 2d DCA 2002) (citing Dep’t of Transp. v. Kisinger Campo & Assocs., 661 So. 2d 58, 59 (Fla. 2d DCA 1995)). But where, as in this case, the circuit court’s determination of entitlement to attorney’s fees is based on a conclusion of law concerning the interpretation of a statute or contractual provision, we employ a de novo standar…
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Gahn v. Holiday Prop. Bond, Ltd., 826 So. 2d 423 (Fla. 2d DCA 2002)…nying Appellants’ motion for fees and costs. Discussion Section 57.105 Cost and Fee Awards This court reviews an order denying a motion for attorney’s fees and costs [*426] for an abuse of discretion. Dep’t of Transp. v. Kisinger Campo & Assocs., 661 So. 2d 58, 59 (Fla. 2d DCA 1995). Section 57.105 presently provides: (1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee to be paid to the prevailing party in equal amounts by the losing party and the los…
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
- Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501 (Fla. 1982)
- City OF Largo v. LaGRANDE, 650 So. 2d 178 (Fla. 2d DCA 1995)