Jones v. Soldavini & Gualario, Inc.

616 So. 2d 1048, 1993 Fla. App. LEXIS 3458, 1993 WL 86488

Opinion

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.