BROAD AND CASSEL, A FLORIDA PARTNERSHIP, AND ALVIN CASSEL, APPELLANTS/CROSS APPELLEES,
v.
NEWPORT MOTEL, INC., A FLORIDA CORPORATION, APPELLEE/CROSS APPELLANT
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
In a legal malpractice action, the court reversed an attorney's fees award under Section 57.105, Florida Statutes, because the trial court failed to make the statutory finding that the plaintiff raised a complete absence of justiciable issues. The case was remanded for the trial court to properly address whether the action was frivolous and, if so, to properly assess fees.
The court reversed the attorney's fees award because the trial court failed to make the statutory finding required by Section 57.105 that there was a complete absence of justiciable issues. The case was remanded for the trial court to determine whether the action was frivolous and, if so, to properly assess fees with the required statutory findings.
[1] An order awarding attorney's fees under Section 57.105, Florida Statutes, is defective if it fails to make the requisite statutory finding that there was a complete absen…
[2] A trial court must decide whether a plaintiff failed to raise a justiciable issue of law or fact before entering an order granting attorney's fees under Section 57.105, F…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the subject order is defective in that it fails to make the requisite statutory finding under Section 57.105, Florida Statutes (1993), that there was a complete absence of a justiciable issue of either law or fact raised by the plaintiff in the action”
Establishes the core basis for reversal—the trial court's failure to include the required statutory finding for attorney's fees under Section 57.105
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBroad and Cassel and Alvin Cassel sued for legal malpractice against Newport Motel, Inc. The trial court granted summary judgment for the defendants a…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Justiciable Issue Of Law Or Fact cases and more on FLexlaw
PER CURIAM.
This is an appeal and cross appeal from an order awarding attorney’s fees to the defendants Broad and Cassel and Alvin Cassel under Section 57.105, Florida Statutes (1993), in a legal malpractice action which resulted in a summary judgment for the defendants.
We reverse the order under review on the cross appeal and remand for further proceedings upon a holding that the subject order is defective in that it fails to make the requisite statutory finding under Section 57.105, Florida Statutes (1993), that there was a complete absence of a justiciable issue of either law or fact raised by the plaintiff in the action. Whitten v. Progressive Casualty Ins. Co., 410 So. 2d 501, 506 (Fla.1982); Mickler v. Graham, 611 So .2d 93 (Fla. 1st DCA 1992); Hirtreiter v. Donovan, 594 So. 2d 342 (Fla. 2d DCA 1992); Harrison v. Rambuski, 567 So. 2d 56 (Fla. 2d DCA 1990); Personnel One, Inc. v. John Sommerer & Co., P.A., 564 So. 2d 1217, 1219 (Fla. 3d DCA 1990); Warshaw v. Monroy, 515 So. 2d 307 (Fla. 3d DCA 1987); Sheriff of Alachua County v. Hardie, 433 So. 2d 15, 16 (Fla. 1st DCA 1983); Suwannee County v. Garrison, 417 So. 2d 1070, 1072-73 (Fla. 1st DCA 1982); Autorico, Inc. v. Government Employees Ins. Co., 398 So. 2d 485, 488 (Fla. 3d DCA 1981).
Given the defective nature of the order under review and our reversal on this point, we need not reach the other issues raised on the main appeal and cross appeal, including whether plaintiffs counsel should have been assessed one half of the attorney’s fee award or whether there was, in fact, a complete absence of a justiciable issue of law or fact raised by the plaintiff in the action. These issues will necessarily have to be addressed by the trial court upon remand.
Moreover, the plaintiffs counsel may face a potential conflict of interest with the plaintiff, given the defendants’ demand that plaintiffs counsel should pay for one half of the attorney’s fee, in which event plaintiffs counsel is necessarily bound by our prior pronouncements on this issue. See Khoury v. Estate of Kashey, 533 So. 2d 908 (Fla. 3d DCA 1988).
The order under review is reversed, and the cause is remanded to the trial court with directions (1) to decide whether the plaintiff failed to raise a justiciable issue of law or fact in the subject legal malpractice action, and (2) in the event a finding of such frivolousness is made, (a) to enter an order (i) granting the defendants’ motion for attorney’s fees, (ii) containing the above finding of frivolousness, and (in) assessing attorney’s fees in equal amounts against both the plaintiff and the plaintiffs counsel [unless plaintiffs counsel can make the requisite good-faith statutory showing to absolve himself of any liability for attorney’s fees]; or (b) in the event a finding of frivolousness is not made, to enter an order denying the defendants’ motion for attorney’s fees.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Justo Vasquez v. Provincial S., Inc., 795 So. 2d 216 (Fla. 4th DCA 2001)…508 So. 2d 340, 341 (Fla.1987)). Section 57.105 requires an explicit finding by the trial court that there was a complete absence of a justiciable issue of law or fact raised by the plaintiff in the action. See Broad & Cassel v. Newport Motel, Inc., 636 So. 2d 590 (Fla. 3d DCA 1994)(citing Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501, 506 (Fla.1982)). There must be a finding on record, supported by substantial competent evidence, in order for the trial court to award attorney’s fees and costs. See Val…
-
Russo & Baker, P.A. v. Fernandez, 752 So. 2d 716 (Fla. 3d DCA 2000)…ented the personal representative. The order on appeal assesses the fee against the personal representative and the appellant law firm. We reverse and remand the case for further proceedings on the authority of Broad & Cassel v. Newport Motel, Inc., 636 So. 2d 590 (Fla. 3d DCA 1994). [*717] The order on appeal fails to make the required statutory findings for an award under section 57.105. In assessing attorneys’ fees under that statute, the trial court must find that there was a complete absence of justiciab…
-
Kurzweil v. Larkin Hosp. Operating Co., 684 So. 2d 901 (Fla. 3d DCA 1996)…s); see also Schwartz v. W-K Partners, 530 So. 2d 456, 457-58 (Fla. 5th DCA 1988). Where the trial court has faded to make such findings, we are without authority to do so in the first instance on appeal. See Broad and Cassel v. Newport Motel, Inc., 636 So. 2d 590, 591 (Fla. 3d DCA 1994); Mickler v. Graham, 611 So. 2d 93, 94 (Fla. 1st DCA 1992). Accordingly, we must remand this issue back to the trial court for further findings. Reversed and remanded for further proceedings. .The critical allegations agains…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501 (Fla. 1982)
- Peadon v. State, 398 So. 2d 485 (Fla. 1st DCA 1981)
- Sheriff OF Alachua Cnty. v. Hardie, 433 So. 2d 15 (Fla. 1st DCA 1983)
- Suwannee Cnty. v. Enoch E. Garrison, Jr., 417 So. 2d 1070 (Fla. 1st DCA 1982)
- Pers. ONE, Inc. v. John Sommerer & Co., P.A., 564 So. 2d 1217 (Fla. 3d DCA 1990)
- ALL Am. Semi-Conductor, Inc. v. Ellison Graphics Corp., 594 So. 2d 342 (Fla. 4th DCA 1992)
- Myron Warshaw v. Monroy, 515 So. 2d 307 (Fla. 3d DCA 1987)
- Harrison v. Rambuski, 567 So. 2d 56 (Fla. 2d DCA 1990)
- Mickler v. Graham, 611 So. 2d 93 (Fla. 1st DCA 1992)
- Khoury v. Est. OF Rose K. Kashey, 533 So. 2d 908 (Fla. 3d DCA 1988)