FRANK B. ARENAS, APPELLANT,
v.
CITY OF COLEMAN, FLORIDA, APPELLEE
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Frank Arenas appeals a trial court's denial of his motion for attorney's fees under Florida Statute § 57.105 following the City of Coleman's voluntary dismissal of its injunction petition against him. The Fifth District affirmed, holding that the City's petition was not frivolous when filed, which is the relevant standard for determining attorney's fee sanctions.
The trial court did not abuse its discretion in denying the motion for attorney's fees. Under the 1997 version of section 57.105, attorney's fees could only be awarded if there was a complete lack of justiciable issues at the time the claim was initially presented. The City's petition was not frivolous when filed, so the voluntary dismissal did not automatically entitle Arenas to attorney's fees.
[1] Attorney's fees under section 57.105, Florida Statutes (1997), are awardable only if there was a complete lack of justiciable issues of law or fact at the time the claim…
[2] A claim is considered to have a complete absence of justiciable issues if it is so clearly devoid of merit, both factually and legally, when presented, as to be completel…
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Join FLexlaw to unlock all legal intelligence“attorney's fees could be awarded only if there was a complete lack of justiciable issues of either law or fact at the time the claim or defense was initially presented”
Establishes the strict standard for attorney's fees sanctions under 1997 section 57.105
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Join FLexlaw to unlock all legal intelligenceThe City of Coleman filed a petition seeking an injunction against Frank Arenas and others for alleged code violations. The City subsequently voluntar…
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Frank B. Arenas appeals the trial court’s order denying his motion for attorney’s fees pursuant to section 57.105, Florida Statutes (1997) following the City of Coleman’s voluntary dismissal of its petition seeking an injunction against him and others for alleged code violations. Finding no abuse of discretion, we affirm.
Under the 1997 version of section 57.105 applicable here, attorney’s fees could be 'awarded only if there was a complete lack of justiciable issues of either law or fact at the time the claim or defense was initially presented. Lambert v. Nelson, 573 So. 2d 54, 56 (Fla. 1st DCA 1990).
In order to demonstrate a complete absence of justiciable issues, the claim or defense must be so clearly devoid of merit both on the facts and the law when presented as to be completely untenable. Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501, 505 (Fla.1982); Weatherby Assocs., Inc. v. Battack, 783 So. 2d 1138, 1141 (Fla. 4th DCA 2001).
As a result, a party could not be sanctioned under the 1997 version of section 57.105 when the lawsuit was not frivolous when filed, but became frivolous later. H.J.J., Inc. v. Party Prods., II, Inc., 738 So. 2d 515 (Fla. 3d DCA 1999).1 The fact that the City voluntarily dismissed its lawsuit does not automatically allow for attorney’s fees as argued by Arenas. “The frivolousness of a claim or a defense is to be judged and determined as of the time it is initially presented, and if it can pass muster at that point, subsequent developments which render the claim or the defense to be without justiciable issue in law or fact should not subject the losing party to attorney’s fees.” Schwartz v. W-K Partners, 530 So. 2d 456, 457 (Fla. 5th DCA 1988); see also Lambert, 573 So. 2d at 56.
Having reviewed the record, we find no abuse of discretion on the part of the trial court in its conclusion that the City’s petition was not frivolous when filed. Accordingly, the trial court’s order denying Arenas’ motion for attorney’s fees is affirmed.
AFFIRMED.
THOMPSON, C.J., and SHARP, W„ J„ concur. . Section 57.105(1) was amended in 1999 to provide that the determination of frivolousness of a claim may be measured when the claim is "initially presented to the court or at any time before trial.” § 57.105(1), Fla. Stat. (1999). Therefore, under section 57.105 as amended in 1999, a party may be subject to section 57.105(1) sanctions if a party is not dropped or dismissed when it becomes evident that there is no longer a justiciable claim although the claim may not have been frivolous at the time it was filed. Weatherby, 783 So. 2d at 1142.
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Fisher v. John Carter & Assocs., Inc., 864 So. 2d 493 (Fla. 4th DCA 2004)…9 (Fla. 4th DCA 2002). “In order to demonstrate a complete absence of justiciable issues, the claim or defense must be so clearly devoid of merit both on the facts and the law when presented as to be completely untenable.” Arenas v. City of Coleman, 791 So. 2d 1234, 1235 (Fla. 5th DCA 2001) (citation omitted). Fisher fails to meet his burden of proving that there was a justiciable issue, and consequently, we find no error on the part of the trial court and affirm the trial court’s order as to this issue. The…
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Mullins v. Kennelly, 847 So. 2d 1151 (Fla. 5th DCA 2003)…arty 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. . In Arenas v. City of Coleman, 791 So. 2d 1234, 1235 n. 1 (Fla. 5th DCA 2001), we observed that under the 1999 amendment, "a party may be subject to section 57.105(1) sanctions if a party is not dropped or dismissed when it becomes evident that there is no longer a justiciable claim although the…
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Albritton v. Ferrera, 913 So. 2d 5 (Fla. 1st DCA 2005)…nder the 1999 version, a party may be subject to fees if a claim is not dropped or dismissed when it becomes evident it is no longer justiciable, even though it may not have been frivolous when filed. See id. at 1155 n. 3; Arenas v. City of Coleman, 791 So. 2d 1234, 1235 n. 1 (Fla. 5th DCA 2001). The 1999 version “imposes a duty, or at least a penalty for failing to voluntarily dismiss a claim or defense when it becomes clear that the claim or defense is untenable.” Mullins, 847 So. 2d at 1155 n. 3. The word…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501 (Fla. 1982)
- Weatherby Assocs., Inc. v. Ballack, 783 So. 2d 1138 (Fla. 4th DCA 2001)
- Schwartz v. W-K P'rs, 530 So. 2d 456 (Fla. 5th DCA 1988)
- Roxanna G. Lambert v. Rickie Nelson, 573 So. 2d 54 (Fla. 1st DCA 1990)
- H.J.J., Inc. v. Party Prods., II, Inc., 738 So. 2d 515 (Fla. 3d DCA 1999)