Ware v. Land Title Co. of Florida

District Court of Appeal of Florida

Ware v. Land Title Co. of Florida

582 So. 2d 46, 1991 Fla. App. LEXIS 5500, 1991 WL 101816

CourtDistrict Court of Appeal of Florida

DecidedJune 12, 1991

DocketNos. 90-01594, 90-02073

StatusPublished

Cited by5 cases

This text of 582 So. 2d 46 (Ware v. Land Title Co. of Florida) 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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Ware v. Land Title Co. of Florida, 582 So. 2d 46, 1991 Fla. App. LEXIS 5500, 1991 WL 101816 (Fla. Ct. App. 1991).

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Opinion

SCHOONOVER, Chief Judge.

The appellant, Richard L. Ware, challenges orders awarding attorney’s fees to the appellees, Land Title Company of Florida, Inc., and Sharon L. Williams. We reverse.

The trial court, after dismissing the appellant’s complaint with prejudice, entered an order awarding attorney’s fees to Land Title Company of Florida, Inc. and another order awarding attorney’s fees to Sharon L. Williams. Both awards were based upon section 57.105(1), Florida Statutes (1989). The appellant filed timely notices of appeal from each of the orders, and the appeals have been consolidated.

The appellant does not contend that the trial court erred in dismissing his complaint with- prejudice because it did not state a cause of action against the appel-lees. He does, however, contend that the court erred in awarding attorney’s fees to the appellees. We agree.

Before attorney’s fees can be awarded to the prevailing party under section 57.105(1), the court must find an absence of any justiciable issue of either law or fact raised by the complaint or defense of the losing party. This finding must be express and without it an order awarding such fees is technically deficient and must be reversed. Whitten v. Progressive Casualty Ins. Co., 410 So.2d 501 (Fla.1982); [47]*47Maryland Casualty Ins. Co. v. Semmer Elec., Inc., 535 So.2d 670 (Fla.2d DCA 1988); Apgar & Markham Constr., Inc. v. Macasphalt, Inc., 424 So.2d 41 (Fla.2d DCA 1982). The orders in this case did not contain the necessary findings and, therefore, were deficient.

We, accordingly, reverse and remand with directions to make an appropriate finding based on the record. If the court expressly finds the absence of any justicia-ble issue of either law or fact, it may reassess attorney’s fees, but in doing so must follow the dictates of Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985), holding modified by Standard Guaranty Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla.1990).

Reversed and remanded.

RYDER and ALTENBERND, JJ., concur.

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SCHOONOVER, Chief Judge.

The appellant, Richard L. Ware, challenges orders awarding attorney’s fees to the appellees, Land Title Company of Florida, Inc., and Sharon L. Williams. We reverse.

The trial court, after dismissing the appellant’s complaint with prejudice, entered an order awarding attorney’s fees to Land Title Company of Florida, Inc. and another order awarding attorney’s fees to Sharon L. Williams. Both awards were based upon section 57.105(1), Florida Statutes (1989). The appellant filed timely notices of appeal from each of the orders, and the appeals have been consolidated.

The appellant does not contend that the trial court erred in dismissing his complaint with- prejudice because it did not state a cause of action against the appel-lees. He does, however, contend that the court erred in awarding attorney’s fees to the appellees. We agree.

Before attorney’s fees can be awarded to the prevailing party under section 57.105(1), the court must find an absence of any justiciable issue of either law or fact raised by the complaint or defense of the losing party. This finding must be express and without it an order awarding such fees is technically deficient and must be reversed. Whitten v. Progressive Casualty Ins. Co., 410 So.2d 501 (Fla.1982); [47]*47Maryland Casualty Ins. Co. v. Semmer Elec., Inc., 535 So.2d 670 (Fla.2d DCA 1988); Apgar & Markham Constr., Inc. v. Macasphalt, Inc., 424 So.2d 41 (Fla.2d DCA 1982). The orders in this case did not contain the necessary findings and, therefore, were deficient.

We, accordingly, reverse and remand with directions to make an appropriate finding based on the record. If the court expressly finds the absence of any justicia-ble issue of either law or fact, it may reassess attorney’s fees, but in doing so must follow the dictates of Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985), holding modified by Standard Guaranty Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla.1990).

Reversed and remanded.

RYDER and ALTENBERND, JJ., concur.

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582 So. 2d 46, 1991 Fla. App. LEXIS 5500, 1991 WL 101816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ware-v-land-title-co-of-florida-fladistctapp-1991.

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