WENDY SUE BROWN, A MINOR, BY AND THROUGH CHARLES A. BROWN, SR., AND NANCY SUE BROWN, HER NATURAL GUARDIANS AND NEXT BEST FRIENDS, AND CHARLES A. BROWN, SR., AND NANCY SUE BROWN, INDIVIDUALLY, APPELLANTS,
v.
UNITED STATES MARBLE, A FLORIDA CORPORATION, "JOHN DOE" 1-10 PROFESSIONAL LIABILITY INSURANCE COMPANY, SILVER SEAS HOTEL, INC., A FLORIDA CORPORATION, D/B/A LIGHTHOUSE POINT YACHT AND RACQUET CLUB, FRANZ JOSEPH SHROPA, AN ARCHITECT, DALE AYERS, AN ARCHITECT, JOSEPH T. ROMANO, AN ARCHITECT, JOSEPH T. ROMANO & ASSOCIATES, A FLORIDA PROFESSIONAL CORPORATION, AND "JOHN DOE" 1-10, PROFESSIONAL LIABILITY INSURANCE COMPANY, ET AL., APPELLEES
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Florida appellate court reversed attorney's fees award against plaintiff in slip-and-fall case where plaintiff voluntarily dismissed corporate defendant after discovering it did not exist at time of accident, holding that section 57.105 fees should not be assessed when plaintiff initially presents justiciable issue even if action subsequently cannot be sustained.
Section 57.105 attorney's fees should not be assessed against a plaintiff who initially presents a justiciable issue even though the action subsequently cannot be sustained.
[1] Section 57.105 attorney's fees should not be assessed against a plaintiff who initially presents a justiciable issue even though the action subsequently cannot be sustain…
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Join FLexlaw to unlock all legal intelligenceWendy Sue Brown, a minor, was injured in a slip and fall and sued the property owner and the manufacturer of floor tiles. After filing the complaint, …
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LETTS, Judge.
In this slip and fall case, the injured plaintiff sued both the owner of the premises and the manufacturer of the floor tiles. After the complaint was filed, it was discovered that the corporate floor tile manufacturer, named as defendant, was not in existence on the date of the accident, though its dissolved predecessor had been owned by members of the same family. Upon making this discovery, admittedly after some strong advice from the trial judge, the plaintiff entered a voluntary dismissal against the corporate-successor tile manufacturer. Thereafter, the trial judge awarded attorney’s fees against the plaintiff under section 57.105, Florida Statutes (1985). We reverse.
As we said in Klein v. Layne, Inc. of Florida, 453 So. 2d 203 (Fla. 4th DCA 1984), section 57.105 fees should not be assessed against a plaintiff who initially presents a justiciable issue even though the action subsequently cannot be sustained. The plaintiff in this case did subsequently enter a voluntary dismissal as to the successor corporation. Moreover, it appears there was enough of a connection between the two corporations to negate “a complete absence of a justiciable issue of either law or fact.” Thus, under the dictates of Whitten v. Progressive Casualty Insurance Co., 410 So. 2d 501 (Fla.1982), section 57.105 fees should not have been awarded.
REVERSED.
GLICKSTEIN and DELL, JJ., concur.
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Dorf v. Usher, 514 So. 2d 68 (Fla. 4th DCA 1987)…xist, and that there was a complete absence of a justiciable issue of law or fact. However, this record fails to support a conclusion that the complaint was either frivolously filed or devoid of arguable substance. See Brown v. United States Marble, 505 So. 2d 1103 (Fla. 4th DCA 1987); Keyes Co. v. Friedes, 497 So. 2d 916 (Fla. 3d DCA 1986); Olsen v. O’Connell, 466 So. 2d 352 (Fla. 2d DCA 1985); Klein v. Layne, Inc. of Florida, 453 So. 2d 203 (Fla. 4th DCA 1984); Fireman’s Fund Insurance Companies v. Rojas, 44…
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Rowars v. Quality Indus. Contractors, Inc., 614 So. 2d 19 (Fla. 4th DCA 1993)…f a justiciable issue of either law or fact raised by the complaint. See Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501 (Fla.1982); Klein v. Layne, Inc. of Florida, 453 So. 2d 203 (Fla. 4th DCA 1984); Brown by and through Brown v. U.S. Marble, 505 So. 2d 1103 (Fla. 4th DCA 1987). REVERSED. HERSEY and DELL, JJ„ and DOWNEY, JAMES C., Senior Judge, concur.…
Authorities Cited
- Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501 (Fla. 1982)
- Klein v. Layne, 453 So. 2d 203 (Fla. 4th DCA 1984)