Glickman v. Bragano

975 So. 2d 1155, 2008 Fla. App. LEXIS 2970, 2008 WL 583564

• Court: District Court of Appeal of Florida
• Decided: March 5, 2008
• Docket: No. 3D06-3197
• Status: Published

Opinion

PER CURIAM.

Fred E. Glickman, Fred E. Glickman, P.A., and Marc Treco (“appellants”) appeal an order denying their motion for attorney’s fees and costs. We reverse and remand for further consideration.

Frank Bragano and Andrew Lynch (“ap-pellees”) filed a two-count- complaint against appellants. Count I alleged a claim for civil theft and count II for fraudulent transfer.

On appellants’ motion, the trial court dismissed the civil theft claim with prejudice, and retained jurisdiction to consider attorney’s fees and costs. The trial court dismissed count II without prejudice, allowing appellees to amend the complaint. Ultimately, the trial court dismissed count II with prejudice for lack of prosecution. Thereafter, the trial court denied appellants’ motion for attorney’s fees and costs reasoning that the dismissal for lack of prosecution did not establish appellants’ status as prevailing party.

However, the trial court did not dismiss count I, the civil theft claim, for lack of prosecution. Instead, the court was dismissed this claim with prejudice on appellants’ motion, and the trial court specifically retained jurisdiction to later address the issue of attorney’s fees and costs.

Therefore, because the trial court has not yet determined whether attorney’s fees and costs are appropriate on count I, we reverse and remand for the trial court to consider appellants’ entitlement to attorney’s fees and costs on the civil theft claim.

Reversed and remanded.