TARRELL J. SMITH AND WIFE, JUNE E. SMITH, APPELLANTS,
v.
DAMON L. GORE AND WIFE, KIMBERLY M. GORE, APPELLEES
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The court granted the motion for attorney's fees under section 57.105, Florida Statutes, finding the appeal was baseless.
[1] A party who accepts the benefits of a lower court's judgment, such as by closing on a real estate transaction after a specific performance order, waives the right to appe…
[2] A voluntary dismissal of an appeal does not preclude a motion for attorney's fees incurred in defending the appeal.
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Join FLexlaw to unlock all legal intelligenceAppellants appealed an order granting specific performance of a residential sale contract after they had already closed on the transaction and accepte…
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PER CURIAM.
Appellants seek review of an order granting specific performance of a residential sale and purchase contract. Appellees moved to dismiss this appeal. In response to the motion to dismiss, Appellants filed a notice of voluntary dismissal. Appellees now move for attorney’s fees pursuant to section 57.105, Florida Statutes (2005). We grant the motion.
Following the lower court’s final judgment granting specific performance, Appellants conveyed to Appellees the subject residential dwelling on October 20, 2005. The warranty deed was recorded on Octo ber 21, 2005. Appellants filed the instant appeal on November 2, 2005.
Significantly, Appellants filed their appeal after attending the closing of the real estate transaction and accepting the benefits of the transaction. By closing the real estate transaction, Appellants recognized the validity of the final judgment entered by the lower court, closed on the contract, deeded the property to Appellees, and accepted payment of the contract sale price. Thus, when Appellants filed the appeal, they knew or should have known the grounds argued for reversal were not supported by material facts necessary to establish relief, nor were they supported by the application of then-existing law to those material facts. See § 57.105(1)(a)-(b), Fla. Stat. (2005); see also Albritton v. Ferrera, 913 So. 2d 5 (Fla. 1st DCA 2005).
We again remind the bar that section 57.105 expressly states courts “shall” assess attorney’s fees for bringing, or failing to timely dismiss, baseless claims or defenses. See Albritton, 913 So. 2d at 8-9 (noting the word “shall” in section 57.105 evidences “the legislative intent to impose a mandatory penalty in the form of reasonable attorney’s fees to discourage baseless claims, by placing a price tag on losing parties who engage in these activities.”) (emphasis in original).
Appellees’ motion for attorney’s fees is GRANTED, and the case REMANDED to the trial court to assess the amount.
VAN NORTWICK, HAWKES and THOMAS, JJ., concur.
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de Vaux v. Westwood Baptist Church, 953 So. 2d 677 (Fla. 1st DCA 2007)…system. See generally, Mullins v. Kennelly, 847 So. 2d 1151, 1154 (Fla. 5th DCA 2003). Because we find that de Vaux and his lawyer made objectively groundless arguments on appeal, a monetary sanction is appropriate here. As we did in Smith v. Gore, 933 So. 2d 567, 568 (Fla. 1st DCA 2006), “[w]e again remind the bar that section 57.105 expressly states courts ‘shall’ assess attorney’s fees for bringing, or faffing to timely dismiss, baseless claims or defenses.” See also Albritton v. Ferrera, 913 So. 2d 5, 8-…
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Danziger v. Alternative Legal, Inc., 987 So. 2d 694 (Fla. 4th DCA 2008)…plied). The statute “mandates a court to award fees to the prevailing party in equal amounts to be paid by the losing party and the losing party’s attorney.” De Vaux v. Westwood Baptist Church, 953 So. 2d 677, 684 (Fla. 1st DCA 2007); Smith v. Gore, 933 So. 2d 567, 568 (Fla. 1st DCA 2006) (‘We again remind the bar that section 57.105 expressly states courts ‘shall’ assess attorney’s fees for bringing, or failing to timely dismiss, baseless claims or defenses.”). Tamecki’s motion for attorney’s fees sought fe…
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VAN Sant LAW, LLC v. AIR Isaac, LLC, 353 So. 3d 106 (Fla. 2d DCA 2022)…"[S]ection 57.105 expressly states courts 'shall' assess attorney's fees for bringing, or failing to timely dismiss, baseless claims or defenses." de Vaux v. Westwood Baptist Church, 953 So. 2d 677, 685 (Fla. 1st DCA 2007) (quoting Smith v. Gore, 933 So. 2d 567, 568 (Fla. 1st DCA 2006)). "The word 'shall' in section 57.105 has been found to evidence the legislative intent to impose a mandatory penalty in the form of reasonable attorney's fees to discourage baseless claims, by placing a price tag on losing…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Albritton v. Ferrera, 913 So. 2d 5 (Fla. 1st DCA 2005)