Maryland Casualty Insurance Co. v. Semmer Electric, Inc.

District Court of Appeal of Florida

Maryland Casualty Insurance Co. v. Semmer Electric, Inc.

535 So. 2d 670, 14 Fla. L. Weekly 58, 1988 Fla. App. LEXIS 5691, 1988 WL 137226

CourtDistrict Court of Appeal of Florida

DecidedDecember 21, 1988

DocketNo. 88-2477

StatusPublished

Cited by3 cases

This text of 535 So. 2d 670 (Maryland Casualty Insurance Co. v. Semmer Electric, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Maryland Casualty Insurance Co. v. Semmer Electric, Inc., 535 So. 2d 670, 14 Fla. L. Weekly 58, 1988 Fla. App. LEXIS 5691, 1988 WL 137226 (Fla. Ct. App. 1988).

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Opinion

PER CURIAM.

We agree with the appellant’s contention that the circuit court erred in awarding attorney’s fees to the appellee pursuant to section 57.105, Florida Statutes (1985). “Attorney’s fees may only be awarded pursuant to that statute when the action brought or the defense raised is so clearly devoid of merit both on the facts and the law as to be completely untenable.” Brinson v. Creative Aluminum Products, 519 So.2d 59, 60 (Fla. 2nd DCA 1988).

Here, a summary judgment was rendered in favor of the appellee showing that there was no genuine issue as to any material fact and that the appellee was entitled to a judgment as a matter of law. However, this standard is not equivalent to the requirement of section 57.105 of frivolousness for an award of attorney’s fees. Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982). Our review of the record reveals that there were factual issues upon which the appellant based his lawsuit and that the court erred in awarding attorney’s fees.

We further find that the order assessing attorney’s fees is technically deficient because it contains no finding by the circuit court that there was a complete absence of a justiciable issue by the losing party. See § 57.105, Fla.Stat. (1985).

Accordingly, we reverse the order awarding attorney’s fees.

SCHEB, A.C.J., and DANAHY and HALL, JJ., concur.

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PER CURIAM.

We agree with the appellant’s contention that the circuit court erred in awarding attorney’s fees to the appellee pursuant to section 57.105, Florida Statutes (1985). “Attorney’s fees may only be awarded pursuant to that statute when the action brought or the defense raised is so clearly devoid of merit both on the facts and the law as to be completely untenable.” Brinson v. Creative Aluminum Products, 519 So.2d 59, 60 (Fla. 2nd DCA 1988).

Here, a summary judgment was rendered in favor of the appellee showing that there was no genuine issue as to any material fact and that the appellee was entitled to a judgment as a matter of law. However, this standard is not equivalent to the requirement of section 57.105 of frivolousness for an award of attorney’s fees. Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982). Our review of the record reveals that there were factual issues upon which the appellant based his lawsuit and that the court erred in awarding attorney’s fees.

We further find that the order assessing attorney’s fees is technically deficient because it contains no finding by the circuit court that there was a complete absence of a justiciable issue by the losing party. See § 57.105, Fla.Stat. (1985).

Accordingly, we reverse the order awarding attorney’s fees.

SCHEB, A.C.J., and DANAHY and HALL, JJ., concur.

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535 So. 2d 670, 14 Fla. L. Weekly 58, 1988 Fla. App. LEXIS 5691, 1988 WL 137226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maryland-casualty-insurance-co-v-semmer-electric-inc-fladistctapp-1988.

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