Merrill Enterprises, Inc. v. Barkett Oil Co. of Florida

District Court of Appeal of Florida

Merrill Enterprises, Inc. v. Barkett Oil Co. of Florida

421 So. 2d 770, 1982 Fla. App. LEXIS 22104

District Court of Appeal of Florida·Decided November 10, 1982·No. No. 82-412·Published·Cited by 4 cases

Opinion

PER CURIAM.

This is an appeal from a post judgment order taxing costs and assessing attorneys’ fees against the plaintiff pursuant to Section 57.105, Florida Statutes (1981). The order in question was entered after plaintiff/appellant voluntarily dismissed the case on the eve of trial. Appellant contends that attorneys’ fees cannot be taxed after a voluntary dismissal. MacBain v. Bowling, 374 So.2d 75 (Fla. 3rd DCA 1979), holds to the contrary. We agree entirely with the MacBain decision and also hold that attorneys’ fees are taxable under the aforecited statute after a voluntary dismissal. The question is whether the fee award is based upon a finding of a complete absence of a justiciable issue of either law or fact. There is record support for the trial court’s determination that attorney’s fees should be awarded under Section 57.105 and there is no merit in any of the issues raised by appellant in its brief.

AFFIRMED.

ANSTEAD, BERANEK and HERSEY, JJ., concur.

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PER CURIAM.

This is an appeal from a post judgment order taxing costs and assessing attorneys’ fees against the plaintiff pursuant to Section 57.105, Florida Statutes (1981). The order in question was entered after plaintiff/appellant voluntarily dismissed the case on the eve of trial. Appellant contends that attorneys’ fees cannot be taxed after a voluntary dismissal. MacBain v. Bowling, 374 So.2d 75 (Fla. 3rd DCA 1979), holds to the contrary. We agree entirely with the MacBain decision and also hold that attorneys’ fees are taxable under the aforecited statute after a voluntary dismissal. The question is whether the fee award is based upon a finding of a complete absence of a justiciable issue of either law or fact. There is record support for the trial court’s determination that attorney’s fees should be awarded under Section 57.105 and there is no merit in any of the issues raised by appellant in its brief.

AFFIRMED.

ANSTEAD, BERANEK and HERSEY, JJ., concur.

Merrill Enterprises, Inc. v. Barkett Oil Co. of Florida, 421 So. 2d 770, 1982 Fla. App. LEXIS 22104 (Fla. Ct. App. 1982).

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