McElhiney v. Ash Properties, Inc.

District Court of Appeal of Florida

McElhiney v. Ash Properties, Inc.

411 So. 2d 291, 1982 Fla. App. LEXIS 19531

CourtDistrict Court of Appeal of Florida

DecidedMarch 22, 1982

DocketNo. AC-113

StatusPublished

Cited by2 cases

This text of 411 So. 2d 291 (McElhiney v. Ash Properties, 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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McElhiney v. Ash Properties, Inc., 411 So. 2d 291, 1982 Fla. App. LEXIS 19531 (Fla. Ct. App. 1982).

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Opinion

WIGGINTON, Judge.

This is an appeal from a final judgment, entered pursuant to a voluntary dismissal of appellant’s cause of action, finding appellant to be in civil contempt and awarding costs and attorney’s fees. We affirm the finding of contempt and award of attorney’s fees, as costs, to appellee, but reverse as to the award of costs made payable to the Clerk of the Circuit Court and also as to the award of prospective attorney’s fees to appellee.

First, the trial court erred in imposing upon appellant a fine payable to the Clerk of the Circuit Court as punishment for his contempt. The procedure followed here was for civil contempt and contemplates that the remedy belongs to the party wronged. Griffin v. Griffin, 375 So.2d 1086 (Fla.1st DCA 1979).

Second, the trial court erred in ordering appellant to pay appellee’s attorney’s fees through the presentation of the evidence should appellant refile his suit. Attorney’s fees may be awarded only under three circumstances, viz: “(1) where authorized by contract; (2) where authorized by a constitutional legislative enactment; and (3) where awarded for services performed by an attorney in creating or bringing into the court a fund or other property.” Miller v. Colonial Baking Co. of Alabama, 402 So.2d 1365 (Fla.lst DCA 1981). None of the above circumstances is present here.

Accordingly, the judgment is affirmed in part and reversed in part.

JOANOS and THOMPSON, JJ., concur.

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WIGGINTON, Judge.

This is an appeal from a final judgment, entered pursuant to a voluntary dismissal of appellant’s cause of action, finding appellant to be in civil contempt and awarding costs and attorney’s fees. We affirm the finding of contempt and award of attorney’s fees, as costs, to appellee, but reverse as to the award of costs made payable to the Clerk of the Circuit Court and also as to the award of prospective attorney’s fees to appellee.

First, the trial court erred in imposing upon appellant a fine payable to the Clerk of the Circuit Court as punishment for his contempt. The procedure followed here was for civil contempt and contemplates that the remedy belongs to the party wronged. Griffin v. Griffin, 375 So.2d 1086 (Fla.1st DCA 1979).

Second, the trial court erred in ordering appellant to pay appellee’s attorney’s fees through the presentation of the evidence should appellant refile his suit. Attorney’s fees may be awarded only under three circumstances, viz: “(1) where authorized by contract; (2) where authorized by a constitutional legislative enactment; and (3) where awarded for services performed by an attorney in creating or bringing into the court a fund or other property.” Miller v. Colonial Baking Co. of Alabama, 402 So.2d 1365 (Fla.lst DCA 1981). None of the above circumstances is present here.

Accordingly, the judgment is affirmed in part and reversed in part.

JOANOS and THOMPSON, JJ., concur.

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411 So. 2d 291, 1982 Fla. App. LEXIS 19531, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcelhiney-v-ash-properties-inc-fladistctapp-1982.

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