WESTWOOD COMMUNITY TWO ASSOCIATION, INC., APPELLANT,
v.
JOHN L. LEWIS, PETER C. MARTIN AND MARK SCHNEIDER, APPELLEES
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Westwood Community Two Association appealed a trial court's award of costs and attorney's fees following dismissal of its amended complaint. The court affirmed the costs assessment but reversed the attorney's fees award, holding that section 57.105(1) requires a complete absence of justiciable issues, which had not been established when the trial court granted leave to file a second amended complaint.
The court affirmed the costs award but reversed the attorney's fees award. Attorney's fees under section 57.105(1) may be awarded only where there is a complete absence of justiciable issues. The trial court's grant of leave to file a second amended complaint meant that the absence of justiciable issues had not been resolved, and the mere failure to state a cause of action or taking a voluntary dismissal is insufficient to support such an award.
[1] Costs are properly awarded pursuant to Florida Rule of Civil Procedure 1.420(d) when a plaintiff voluntarily dismisses an action.
[2] An award of attorney's fees under section 57.105(1), Florida Statutes, requires a complete absence of justiciable issues.
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Join FLexlaw to unlock all legal intelligence“The law is clear that attorney's fees can be awarded pursuant to section 57.105(1) only where there is a complete absence of a justiciable issue.”
Establishes the strict statutory requirement for attorney's fees awards under section 57.105(1)
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Join FLexlaw to unlock all legal intelligenceThe trial court dismissed appellant's amended complaint but granted leave to file a second amended complaint. Appellant then took a voluntary dismissa…
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PER CURIAM.
This is an appeal from a final judgment which awarded costs pursuant to rule 1.420, Florida Rules of Civil Procedure, and an attorney’s fee pursuant to section 57.105(1), Florida Statutes (1993). We affirm the costs, but reverse the award of attorney’s fees.
The costs issue requires no discussion, in our view, other than to say that appellant’s argument that the trial court was without authority to assess such is without merit.1 As for the attorney’s fees award, we are compelled to reverse because the record does not reflect the statutory requirement of a complete absence of justiciable issues in that the trial court granted leave to appellant to file a second amended complaint when it dismissed the amended complaint. When appellant then took a voluntary dismissal, the absence of justiciable issues had not been resolved.
The failure of appellant to state a cause of action in its amended complaint is not sufficient, in and of itself, to support a finding that the claim was so lacking in merit as to justify an award of attorney’s fees under section 57.105(1). Strothman v. Henderson Mental Health Ctr., Inc., 425 So. 2d 1185 (Fla. 4th DCA 1983). Also, a party is not liable for attorney’s fees under the statute simply because it took a voluntary dismissal. Executive Ctrs. of Am., Inc. v. Durability Seating & Interiors, Inc., 402 So. 2d 24 (Fla. 3d DCA 1981). The law is clear that attorney’s fees can be awarded pursuant to section 57.105(1) only where there is a complete absence of a justiciable issue. See, e.g., Whitten v. Progressive Casualty Ins. Co., 410 So. 2d 501 (Fla.1982), receded from in part on other grounds, Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.1985); Stump v. Foresi, 486 So. 2d 62 (Fla. 4th DCA 1986). There is no authority for holding that filing a claim in an inappropriate forum can result in a finding that the claim is void of any justiciable issues such that an award of attorney’s fees is permitted pursuant to section 57.105(1).
GLICKSTEIN, WARNER and SHAHOOD, JJ., concur. . Florida Rule of Civil Procedure 1.420(d) states that costs "shall be assessed and judgment for costs entered” in an action which is voluntarily dismissed by a plaintiff under the rule. Further, appellant’s argument that the trial court was without authority to award attorney’s fees is equally without merit since attorney's fees pursuant to section 57.105 are taxable after a voluntary dismissal. Merrill Enters., Inc. v. Barkett Oil Co. of Fla., 421 So. 2d 770 (Fla. 4th DCA 1982).
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Cited By
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Froman v. Kirland, 746 So. 2d 1120 (Fla. 4th DCA 1999)…justiciable issue of law or fact to support any claim against her when the complaint was filed. Although Froman filed a voluntary dismissal, attorney’s fees under section 57.105 may still be awarded. See Westwood Community Two Ass’n, Inc. v. Lewis, 662 So. 2d 1011, 1012 (Fla. 4th DCA 1995); Kirby v. Adkins, 582 So. 2d 1209, 1210 (Fla. 5th DCA 1991). Froman asserts that the trial court erred in awarding Rowena fees totaling the entire amount expended in defending all of the defendants up until the time she wa…
Authorities Cited
- Fla. Patient's Comp. Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985)
- Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501 (Fla. 1982)
- Strothman v. Henderson Mental Health Ctr., Inc., 425 So. 2d 1185 (Fla. 4th DCA 1983)
- Executive Ctrs. OF Am., Inc. v. Durability Seating & Interiors, 402 So. 2d 24 (Fla. 3d DCA 1981)
- Stump v. Foresi, 486 So. 2d 62 (Fla. 4th DCA 1986)
- Merrill Enters., Inc. v. Barkett OIL Co. OF Fla., 421 So. 2d 770 (Fla. 4th DCA 1982)
- Hilsman v. Hilsman, 421 So. 2d 770 (Fla. 4th DCA 1982)