CITY OF ST. PETERSBURG, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, APPELLANT,
v.
S & E CONTRACTORS, A FLORIDA CORPORATION, AND RELIANCE INSURANCE COMPANY, A PENNSYLVANIA CORPORATION, APPELLEES
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The court affirmed dismissal of the city's complaint as time-barred but reversed the award of attorney's fees because the statute of limitations is an affirmative defense that need not be apparent at the time of filing.
Attorney's fees under section 57.105(1) cannot be awarded merely because a complaint is time-barred, since the statute of limitations is an affirmative defense that may be waived and need not be apparent when the complaint is filed.
[1] The statute of limitations is an affirmative defense that may be waived after complaint is filed, and therefore attorney's fees under section 57.105(1) cannot be awarded…
Previewing 1 of 1 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“For attorney's fees to be awarded under section 57.105(1), it must be clear at the time the cause of action is commenced that the action is so clearly devoid of merit as to make it completely untenable.”
Standard for awarding attorney's fees under section 57.105(1)
The City of St. Petersburg filed a complaint against S & E Contractors and Reliance Insurance Company. The trial court granted summary judgment dismis…
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THREADGILL, Judge.
In case number 96-04507, the city of St. Petersburg appeals an order granting summary judgment and dismissing its complaint with prejudice on the ground it was barred by the statute of limitations. In the consolidated appeal, case number 97-00162, the city challenges an order awarding attorney’s fees and costs in favor of S & E Contractors pursuant to section 57.105(1), Florida Statutes (1995). We affirm the order in case number 96-04507 without discussion, but we reverse the order in ease number 97-00162, which awards attorney’s fees and costs. For attorney’s fees to be awarded under section 57.105(1), it must be clear at the time the cause of action is commenced that the action is so clearly devoid of merit as to make it completely untenable. See Schatz v. Wenaas, 510 So. 2d 1125 (Fla. 2d DCA 1987). Here, in finding a complete absence of any justiciable issue, the trial court noted that it was apparent from the city’s own records that the action was time barred. As noted by this court in Solimando v. Aloha Medical Center, 594 So. 2d 850, 852 (Fla. 2d DCA 1992), however, the statute of limitations is an affirmative defense that can be waived after the filing of the complaint. Nothing in the record indicates that at the time the city filed the complaint it knew S & E Contractors would raise that defense. We therefore reverse the order awarding attorney’s fees and costs.
Affirmed in part; reversed in part.
DANAHY, A.C.J., and BLUE, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Solimando v. Aloha Med. Ctr. & William J. Young, M.D., 594 So. 2d 850 (Fla. 2d DCA 1992)
- Manfred Schatz v. Wenaas, 510 So. 2d 1125 (Fla. 2d DCA 1987)