Wednesday, November 4, 2009

Fourth District Affirms 57.105(1) Order

In Chue v. Lehman, et al. (4D09-128),  the Fourth District affirmed the trial court's denial of a motion for attorneys fees pursuant to section 57.105(1), Florida Statutes. The court stated:
On a motion for attorney’s fees pursuant to section 57.105(1), the trial court must make “‘an inquiry into what the losing party knew or should have known during the fact-establishment process, both before and after suit is filed.’”...To award attorney’s fees under section 57.105(1), the trial court must find that the action was “frivolous or so devoid of merit both on the facts and the law as to be completely untenable.”
Against this backdrop, our task is to determine whether the trial court abused its discretion in ruling that Lehman’s lawsuit was not frivolous; it is not to conduct a de novo review of Lehman’s complaint. Thus, we must consider the evidence presented at the evidentiary hearing concerning what Lehman and his attorney knew or should have known at that point in the litigation. After reviewing this evidence, we conclude that Lehman and his attorney provided testimony from which the trial court could have reasonably concluded that Lehman’s claim was not frivolous.

The court then made two statements to be used in the future if the plaintif attempted to revisit the action.  First, the court made very clear nothing in the opinion should be construed as the court indicating the complaint sufficiently pled a case of action.  Second, the court indicated the opinion should not be used to prevent the imposition of sanctions if the case was again filed.


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