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Jones v. Soldavini Gualario, Inc.

District Court of Appeal of Florida, Second District
Apr 28, 1993
616 So. 2d 1048 (Fla. Dist. Ct. App. 1993)

Summary

holding that dismissal of a claim with prejudice did not warrant assessment of attorney's fees

Summary of this case from Fairview Properties, Inc. v. Pate Construction Co.

Opinion

No. 92-01464.

March 24, 1993. Rehearing Denied April 28, 1993.

Appeal from the Circuit Court, Collier County, Cynthia Ellis, Acting J.

Robert M. Buckel of Willis, Wilson Buckel, and Peter T. Wlasuk of Harter, Secrest Emery, Naples, for appellants.

Mark V. Silverio and Philip Mugavero of Law Offices of Mark V. Silverio, Miami, for appellees.


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 "[m]erely 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.


Summaries of

Jones v. Soldavini Gualario, Inc.

District Court of Appeal of Florida, Second District
Apr 28, 1993
616 So. 2d 1048 (Fla. Dist. Ct. App. 1993)

holding that dismissal of a claim with prejudice did not warrant assessment of attorney's fees

Summary of this case from Fairview Properties, Inc. v. Pate Construction Co.
Case details for

Jones v. Soldavini Gualario, Inc.

Case Details

Full title:BARBARA JONES, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DEWEY POLLY…

Court:District Court of Appeal of Florida, Second District

Date published: Apr 28, 1993

Citations

616 So. 2d 1048 (Fla. Dist. Ct. App. 1993)

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