RUTH COSNER AND LAW FIRM OF TOPKIN & PARTLOW, APPELLANTS,
v.
MICHAEL PARK, APPELLEE
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In this appellate decision, the Fourth District Court of Appeal affirmed a trial court's final judgment and granted the appellee's motion for appellate attorney's fees under Florida Statute section 57.105, finding the appellant's appeal to be frivolous and lacking merit.
The court held that the appeal was frivolous and therefore affirmed the award of attorney's fees to the appellee. The appellant's first argument was not preserved below, the third argument was contradicted by the court's case law, and the second argument lacked record evidence to support it.
[1] Appellate courts can award appellate attorney's fees under section 57.105, Florida Statutes.
[2] A frivolous appeal is one that raises arguments a reasonable lawyer would know are not well-grounded in fact or warranted by existing law or a reasonable argument for ext…
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Join FLexlaw to unlock all legal intelligence“[A] 'frivolous' appeal is one which raises arguments a reasonable lawyer would either know are not well grounded in fact, or would know are not warranted either by existing law or by a reasonable argument for the extension, modification, or reversal of existing law.”
Establishes the legal standard for determining whether an appeal is frivolous and subject to attorney's fee sanctions.
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Join FLexlaw to unlock all legal intelligenceThe appellant, Ruth Cosner and her law firm Topkin & Partlow, appealed a final judgment entered by the trial court. The trial court had granted summar…
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We affirm the final judgment entered by the trial court and grant the defendant/ap-pellee’s motion for appellate attorney’s fees incurred in defending this appeal pursuant to section 57.105, Florida Statutes (2013). “[I]t is well settled that appellate courts can award appellate attorney’s fees under [section 57.105].” Waddington v. Baptist Med. Ctr. of the Beaches, Inc., 78 So.3d 114, 117 (Fla. 1st DCA 2012). “[A] ‘frivolous’ appeal is one which raises arguments a reasonable lawyer would either know are not well grounded • in fact, or would know are not warranted either by existing law or by a reasonable argument for the extension, modification, or reversal of existing law.” Id. (quoting Visoly v. Sec. Pac. Credit Corp., 768 So.2d 482, 491 (Fla. 3d DCA 2000)).
Not only was the underlying matter without merit, this appeal is without merit as well. The appellant’s first argument on appeal was not preserved below, and her third argument is clearly contradicted by case law from this Court. Her second argument is perhaps the strongest of the three, yet she has pointed to no record evidence to support her assertion that she or her counsel had a good faith basis for believing the appellee was liable.
In her response to the appellee’s motion for attorney’s fees, the appellant’s counsel contends that the appellant was “never given the opportunity” to present certain argument to the trial court because ' *965This is an extremely misleading assertion because the record reveals that the trial court held a hearing on the appellee’s motion for attorney’s fees on March 18, 2014. The appellant, however, has not provided a transcript of the hearing.
*964[t]he lower court simply granted the [section] 57.105 [fees] after the summary judgment was granted, and never heard arguments, nor allowed the case law provided in Appellant’s Initial Brief of this Appeal to be presented to the lower court in its determination of awarding fees pursuant to Defendant/Appellee’s Motion for Sanctions.
*965Overall, this appeal meets the standard for frivolousness, and therefore an award of fees to the appellee is appropriate. The appellee’s motion for attorney’s fees is therefore granted and the case is remanded to the trial court to determine the amount of the same. The appellant’s motion for attorney’s fees is denied.
MAY and KLINGENSMITH, JJ., concur.
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Authorities Cited
- Damien Townes v. State, 768 So. 2d 482 (Fla. 2d DCA 2000)
- Waddington v. Baptist Med. Ctr. OF the Beaches, Inc., 78 So. 3d 114 (Fla. 1st DCA 2012)