PAMELA BRONSON, CROSS APPELLEE,
v.
DONALD BRONSON, ETC. ET AL., CROSS APPELLANT
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Donald Bronson appeals the denial of attorney's fees incurred in defending against Pamela Bronson's civil theft claim. The court reverses because the trial court incorrectly applied the frivolous suit standard rather than the less stringent standard under Florida's civil theft statute.
The trial court erred by applying the frivolous suit standard instead of the civil theft statute's standard. Under the civil theft statute, attorney's fees are recoverable if the claimant raised a claim without substantial fact or legal support, which is a less stringent standard than the frivolous suit test. The case is remanded for the trial court to properly determine whether fees are warranted under the correct statutory standard.
[1] A defendant who successfully defends against a civil theft claim is entitled to recover attorney's fees and court costs if the claimant raised a claim without substantial…
[2] The standard for awarding attorney's fees under Florida's civil theft statute is less stringent than the standard for frivolous suits under section 57.105, Florida Statut…
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Join FLexlaw to unlock all legal intelligence“defendants in actions for civil theft "are entitled to recover reasonable attorney's fees and court costs in the trial and appellate courts upon a finding that the claimant raised a claim which was without substantial fact or legal support"”
Establishes the statutory standard for attorney's fees in civil theft cases under sections 772.104 and 772.11
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Join FLexlaw to unlock all legal intelligencePamela Bronson filed a three-count complaint including claims for rescission of a deed, accounting, and civil theft against Donald Bronson. The plaint…
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[*995] ANTOON, Judge.
Donald Bronson (defendant) cross appeals the denial of his claim for attorney’s fees incurred in successfully defending against Pamela Bronson’s (plaintiff) claim for civil theft.1 We reverse because the trial court erroneously applied the frivolous suit standard in denying the request for fees.2
The plaintiff filed a three-count complaint for rescission of a deed to real property (count I), an accounting (count II), and civil theft (count III). The defendant filed a counterclaim seeking damages for defamation and injunctive relief. Prior to trial, the plaintiff voluntarily dismissed counts I and III of the complaint. At the conclusion of the non-jury trial on the civil theft count, the trial court ordered an accounting, announcing: “[T]he irony is that while plaintiff is entitled to an accounting, there is nothing to account.” The trial court denied the defendant’s claim for attorney’s fees on the basis that it did not find that the plaintiffs “claims were frivolous.”
On appeal, the defendant contends that, pursuant to Foreman v. E.F. Hutton & Co., Inc., 568 So. 2d 531 (Fla. 3rd DCA 1990) and section 772.104, Florida Statutes (1995), the trial court erred in failing to award him attorney’s fees for successfully defending against the civil theft count. Specifically, he argues that the trial court erroneously applied the frivolous suit standard to his claim for fees. We agree.
Florida’s civil theft statute provides that defendants in actions for civil theft “are entitled to recover reasonable attorney’s fees and court costs in the trial and appellate courts upon a finding that the claimant raised a claim which was without substantial fact or legal support”. See §§ 772.104 & 772.11, Fla. Stat. (1995). Thus, the test under the civil theft statute is whether the plaintiff “raised a claim which was without substantial fact or legal support”.
In the instant ease, the trial court never addressed the question of whether the plaintiffs claim for civil theft was supported by “substantial fact or legal support.” Instead, the court erroneously applied the frivolous suit standard contained in section 57.105, Florida Statutes (1995). Under section 57.105, a defendant is entitled to an award of attorney’s fees only if there is a complete lack of a justiciable issue which renders the action completely untenable. Ciaramello v. D’Ambra, 613 So. 2d 1324, 1325 (Fla. 2d DCA 1991), rev. denied, 599 So. 2d 654 (Fla.1992). Clearly, the standard is less stringent under the civil theft statute. The obvious intent of the legislature in adopting this broader standard was to “discourage civil theft claims lacking in legal or factual substance”. Id. at 1325.
We must therefore remand for the trial court to determine, without regard to plaintiffs having prevailed in her claim for accounting, whether the defendant is entitled to fees pursuant to sections 772.104 and 772.11. Friedman v. Lauderdale Medical Equipment Service, Inc., 591 So. 2d 328 (Fla. 4th DCA 1992).
REVERSED and REMANDED.
PETERSON, C.J., and THOMPSON, J., concur. . The plaintiffs appeal was dismissed.
. See § 57.105, Fla. Stat. (1995)
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Citator
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Haas v. ROE, 696 So. 2d 1254 (Fla. 2d DCA 1997)…supreme court and held such fees to be proper only “where the action is so completely devoid of merit both on the facts and the law as to be completely untenable.” Rojas v. Drake, 569 So. 2d 859, 860 (Fla. 2d DCA 1990); see also Bronson v. Bronson, 685 So. 2d 994, 995 (Fla. 5th DCA 1997) (trial court improperly applied stringent frivolous suit standard to claim for fees under civil theft statute; “a defendant is entitled to an award of attorney’s fees only if there is a complete lack of justiciable issue whi…
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Standafer v. Schaller, 726 So. 2d 352 (Fla. 2d DCA 1999)…ts provided under other provisions of law. (Emphasis added). The standard to be applied under the civil theft statute is less stringent than the frivolous suit standard contained in section 57.105, Florida Statutes '(1997). See Bronson v. Bronson, 685 So. 2d 994 (Fla. 5th DCA 1997). However, the clear language of the statute appears to require more than that the defendant be the prevailing party because the failure of a plaintiff to prevail on a civil theft claim by clear and convincing evidence does not ne…
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Montgomery & Larmoyeux v. Philip Morris, Inc., 992 F. Supp. 1372 (S.D. Fla. 1998)…he pleader on mere inspection.” Black’s Law Dictionary, 796 (4th ed.1968). Under Florida law, a lawsuit is frivolous only if there is a complete lack of justiciable issue which renders the action completely untenable. Bronson v. Bronson, 685 So.2d 994, 995 (Fla. 5th DCA 1997); section 57.105 Fla.Stat. The Court also recognizes that the Florida Rules of Professional Conduct provide that it is not “frivolous” for an attorney to seek in good faith an extension, reversal or modification of existing l…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ciaramello v. D'Ambra, 613 So. 2d 1324 (Fla. 2d DCA 1991)
- Foreman v. E.F. Hutton & Co., Inc., 568 So. 2d 531 (Fla. 3d DCA 1990)
- Friedman v. Lauderdale Med. Equip. Serv., Inc., 591 So. 2d 328 (Fla. 4th DCA 1992)