BARBARA JONES, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DEWEY POLLY, JAMES WILLIS, AS TRUSTEE OF THE POLLY-BANNISTER TRUST AND AS TRUSTEE OF THE SUNSET VIEWS TRUST, AND AVENELL POLLY, APPELLANTS,
v.
SOLDAVINI & GUALARIO, INC., AND JOHN SOLDAVINI, APPELLEES
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FRANK, Acting Chief Judge.
The appellants have sought review of a “Final Judgment for Fees and Costs” in which the trial court awarded the appellees an attorney’s fee pursuant to section 57.-105, Florida Statutes (1991). The predicate for the assessment of such fees was the trial court’s dismissal of the claim with prejudice. Based upon our view of this proceeding, including an evaluation of the record in its entirety, we have determined that the award to appellees of an attorney’s fee is not warranted within the standards set forth in Whitten v. Progressive Casualty Insurance Co., 410 So. 2d 501 (Fla.1982). In short, we follow the principle stated in Whitten, that “[mjerely losing, either on the pleadings or on summary judgment, is not enough to invoke the operation of the statute.” 410 So. 2d at 506.
The attorney’s fee award is reversed and vacated.
ALTENBERND, J., and FARNELL, CROCKETT, Associate Judge, concur.
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Szucs v. Qualico Dev., Inc., 893 So. 2d 708 (Fla. 2d DCA 2005)…iary duty, conversion, and civil theft. There are no material, disputed facts to bar entry of summary judgment. Szucs cites Reserve Insurance Co. v. Earle W. Day & Co., 190 So. 2d 803 (Fla. 2d DCA 1966), and Wallace v. Pensacola Rent-A-Wreck, Inc., 616 So. 2d 1048 (Fla. 5th DCA 1993), but neither case concerned the entry of a default. They merely stand for the general propositions that the exis [*712] tence of a genuine issue of material fact will preclude summary judgment. The court in this case correctly en…
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Murciano v. Garcia, 958 So. 2d 423 (Fla. 3d DCA 2007)…acts presently of record, we cannot conclusively find that there is no genuine issue in the record. Summary judgment necessarily is precluded. The conflicting facts in this case should be submitted to a jury. Wallace v. Pensacola Rent-A-Wreck, Inc., 616 So. 2d 1048, 1050 (Fla. 5th DCA1993). Reversed and remanded with directions.…
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Fairview Props., Inc. v. Pate Constr. Co., Inc., 638 So. 2d 998 (Fla. 4th DCA 1994)…trict recognized that where the trial court found that there was a sufficient justiciable issue to survive summary judgment, “we do not see how it can be said that there was a complete absence of a justiciable issue”); Jones v. Soldavini & Gualario, 616 So. 2d 1048 (Fla. 2nd DCA 1993) (holding that dismissal of a claim with prejudice did not warrant assessment of attorney’s fees); Strothman v. Henderson Mental Health Center, Inc., 425 So. 2d 1185 (Fla. 4th DCA 1983) (the mere failure of a party to state a caus…
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- Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501 (Fla. 1982)