NADIA L. VALDES, APPELLANT,
v.
DR. GREGORY C. LOVAAS, M.D., APPELLEE
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Nadia Valdez, an attorney for the defendant, appeals an order assessing attorney's fees against her under Florida Statute section 57.105. The Third District Court of Appeal reversed because the trial court failed to make the required findings that Valdez's defense lacked any justiciable issue of law or fact and that she failed to act in good faith based on her client's representations.
The court reversed the fee award against the attorney because the trial court failed to make the requisite findings necessary under section 57.105. To assess fees against an attorney under this statute, the trial court must find both that there was a complete absence of justiciable issues raised by the defense and that the attorney did not act in good faith based on client representations.
[1] A trial court must find a complete absence of a justiciable issue of law or fact to award attorney's fees under section 57.105, Florida Statutes.
[2] To assess attorney's fees against a losing party's attorney under section 57.105, Florida Statutes, a trial court must find that the attorney did not act in good faith, b…
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Join FLexlaw to unlock all legal intelligence“in assessing attorneys' fees under [section 57.105], the trial court must find that there was a complete absence of justiciable issue of either law or fact raised by the defendant ... below. Additionally, in order to assess fees against the [lawyer], the trial court must also find that 'the losing party's attorney did not act in good faith, based on the representations of his or her client.'”
Establishes the two-part requirement for assessing attorney fees under section 57.105: absence of justiciable issues and attorney bad faith
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Join FLexlaw to unlock all legal intelligenceIn the underlying civil action, the defendant was represented by attorney Nadia Valdez. The trial court awarded attorney's fees to the plaintiff and a…
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GREEN, J.
This is an appeal from an order awarding attorney’s fees to the plaintiff/appellee under section 57.105, Florida Statutes (1995).1 The order on appeal assesses one-half of the total fee award against the appellant, Nadia L. Valdez, who was the attorney for the defendant in the proceedings below without any oral or written findings as to this attorney’s lack of good faith. We reverse.
This court has held that:
[i]n assessing attorneys’ fees under [section 57.105], the trial court must find that there was a complete absence of justiciable issue of either law or fact raised by the defendant ... below. Additionally, in order to assess fees against the [lawyer], the trial court must also find that ‘the losing party’s attorney did not act in good faith, based on the representations of his or her client.’ (Emphasis added).
Russo & Baker, P.A. v. Fernandez, 752 So. 2d 716, 717 (Fla. 3d DCA 2000). Although the appellee’s arguments imply that the trial court made such findings, there is nothing in the record before us to assure that the requisite findings were made. Thus, the order under review is reversed,2 and the cause is remanded to the trial court for further proceedings consistent with those directed in Broad & Cassel v. Newport Motel, Inc., 686 So. 2d 590, 591 (Fla. 3d DCA 1994).
Reversed and remanded with instructions.
. The applicable provision of section 57.105 provides:
(1) 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 losing party’s attorney in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the complaint or defense of the losing party; provided, however, that the losing party’s attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client. If the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the defense, the court shall also award prejudgment interest.
. Our holding is not meant to imply that we disagree with the imposition of sanctions here. Rather, we merely find that the record before us is devoid of the findings necessary for the imposition of such sanctions.
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Justo Vasquez v. Provincial S., Inc., 795 So. 2d 216 (Fla. 4th DCA 2001)…iting Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501, 506 (Fla.1982)). There must be a finding on record, supported by substantial competent evidence, in order for the trial court to award attorney’s fees and costs. See Valdes v. Lovaas, M.D., 784 So. 2d 474 (Fla. 3d DCA 2001). Although we are mindful that the Legislature’s 1999 amendment to section 57.105 expanded the availability of fees and costs, we do not find the limited facts in the context of the instant appeal bring this case within the scope…
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Ainslee R. Ferdie, Law Offs. of Ainslee R. Ferdie, & Ferdie & Lones, Chartered v. Isaacson, 8 So. 3d 1246 (Fla. 4th DCA 2009)…and, ... [2] an express finding that the attorney was not acting in good faith based upon the representations of his client.” Perlman v. Ameriquest Mortgage Co., 987 So. 2d 1292, 1292 (Fla. 4th DCA 2008) (emphasis supplied) (citing Valdes v. Lovaas, 784 So. 2d 474 (Fla. 3d DCA 2001); Weatherby Assoc. Inc. v. Ballack, 783 So. 2d 1138, 1143 (Fla. 4th DCA 2001)). The trial court’s order finding the Isaacsons to be entitled to fees satisfied the first element in Perlman by including “an express finding that the…
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Perlman v. Ameriquest Mortg. Co., 987 So. 2d 1292 (Fla. 4th DCA 2008)…that the claim was frivolous and, where the trial court imposes liability for the fee award against counsel, an express finding that the attorney was not acting in good faith based upon the representations of his client. See, e.g., Valdes v. Lovaas, 784 So. 2d 474, 475 (Fla. 3d DCA 2001); Weatherby Assocs., Inc. v. Ballack, 783 So. 2d 1138, 1143 (Fla. 4th DCA 2001). No such finding is included in the orders appealed. We thus reverse the fee judgments to the extent that they require Perlman to pay half of such…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Russo & Baker, P.A. v. Fernandez, 752 So. 2d 716 (Fla. 3d DCA 2000)
- Broad AND Cassel v. Newport Motel, Inc., 636 So. 2d 590 (Fla. 3d DCA 1994)
- Jones v. Sec'y, Dep't of Corr. (M.D. Fla. 2019)