SAM PENA, APPELLANT,
v.
BRITTON, COHEN, CASSELL, KAUFMAN & SCHANTZ, P.A., APPELLEE
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Appellant Pena retained a law firm to protect his interests in Batavus Construction Co. stock during bankruptcy proceedings. After the firm dismissed claims against certain defendants and sued Pena for unpaid attorney's fees, Pena counterclaimed for legal malpractice based on conflict of interest. The trial court granted summary judgment on the malpractice claim and awarded the law firm attorney's fees under Florida Statute Section 57.105, and Pena appeals the fee award.
The trial court properly awarded attorney's fees under Section 57.105 because the counterclaim failed to raise justiciable issues of either law or fact, which is a requirement for such fee awards.
[1] A party seeking attorney's fees under Section 57.105, Florida Statutes, must prove a complete absence of a justiciable issue of law or fact raised by the opposing party.
[2] A trial court's award of attorney's fees under Section 57.105, Florida Statutes, will be affirmed if the record supports the finding that the counterclaim failed to raise…
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Join FLexlaw to unlock all legal intelligence“Appellant, defendant counter-claimant in the trial court, seeks review of an order of the trial court awarding the appellees attorney's fees pursuant to Section 57.105, Florida Statutes (1989).”
Establishes the nature of the appeal - review of an attorney's fees award under Section 57.105
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Join FLexlaw to unlock all legal intelligenceAppellant retained the appellee law firm to protect his rights in Batavus Construction Co. stock. Batavus filed for bankruptcy protection. The law fir…
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PER CURIAM.
Appellant, defendant counter-claimant in the trial court, seeks review of an order of the trial court awarding the appellees attorney’s fees pursuant to Section 57.105, Florida Statutes (1989).
The appellant retained the appellee law firm to protect his rights in the stock of Batavus Construction Co., Inc. Batavus filed for protection under the Federal Bankruptcy Act. The appellee filed claims in the bankruptcy court against Julio Amo-ros, Batavus, Richard Wheeler, and United Minerals and Chemicals, for imposition of a constructive trust on the shares of Batavus transferred by Wagner to Amoras. They also filed a claim against King, Wagner, Levy and Raben, a professional partnership, and Marshall King and Stephen A. Wanger, individually, for their acts in handling the transfer of the shares of Batavus Construction Co., Inc. They were unsuccessful in their claim to impose a constructive trust against the shares transferred by King to Wheeler and then Amoros. The claim against King, Wagner, et al. in the bankruptcy court, was voluntarily dismissed by the appellee. Dismissal was consented to by the appellee. After dismissal in the bankruptcy court, the appellee sued Pena for attorney’s fees due. Pena counterclaimed alleging legal malpractice based on conflict of interest. A summary judgment was awarded the appellee on the malpractice claim. It thereafter moved for attorney’s fees and costs pursuant to Section 57.105, Florida Statutes (1989). After hearing on the motion the trial court entered the order appealed awarding the appellees attorney's fees.
The appellant contends the trial court erred in awarding the appellees attorney’s fees pursuant to Section 57.105, Florida Statutes (1989) on the ground that the appellee failed to prove that there was a complete absence of a justiciable issue of either law or fact raised by the complaint in defense of the losing party necessary for the award of fees under Section 57.105, Florida Statutes (1989).
The record supports the trial court's finding that the counterclaim failed to raise justiciable issues of either law or fact and the trial court should be affirmed. Fierer v. 18th Avenue Development Corp., 417 So. 2d 1005 (Fla. 3d DCA 1982); Kisling v. Woolridge, 397 So. 2d 747 (Fla. 5th DCA 1981); White v. Montebello Corporation, 397 So. 2d 326 (Fla. 5th DCA 1981).
Affirmed.
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- White v. The Montebello Corp., 397 So. 2d 326 (Fla. 5th DCA 1981)
- Fierer v. 18TH Ave. Dev. Corp., 417 So. 2d 1005 (Fla. 3d DCA 1982)
- Kisling v. Wooldridge, 397 So. 2d 747 (Fla. 5th DCA 1981)