39 Fla. L. Weekly D2054b
Attorney’s fees — Claim or defense not supported by material facts or
applicable law — Trial court did not abuse discretion by denying defendant’s
motion for attorney’s fees pursuant to section 57.105, Florida Statutes, where
claim was not entirely devoid of merit — Costs — It was error to deny award of
costs to prevailing party
applicable law — Trial court did not abuse discretion by denying defendant’s
motion for attorney’s fees pursuant to section 57.105, Florida Statutes, where
claim was not entirely devoid of merit — Costs — It was error to deny award of
costs to prevailing party
STEVEN FRISCHER, Appellant, vs. MARGARITA QUINTANA, JOSE QUINTANA, AND
ANNETTE QUINTANA, Appellees. 3rd District. Case No. 3D14-824. L.T. Case No.
11-2748. Opinion filed September 24, 2014. An Appeal from the Circuit Court for
Miami-Dade County, Abby Cynamon, Judge. Counsel: Nancy C. Wear, B.C.S., and
Nancy C. Wear, for appellant. Richard F. Watson, P.A., and Richard F. Watson,
for appellees.
ANNETTE QUINTANA, Appellees. 3rd District. Case No. 3D14-824. L.T. Case No.
11-2748. Opinion filed September 24, 2014. An Appeal from the Circuit Court for
Miami-Dade County, Abby Cynamon, Judge. Counsel: Nancy C. Wear, B.C.S., and
Nancy C. Wear, for appellant. Richard F. Watson, P.A., and Richard F. Watson,
for appellees.
(Before ROTHENBERG, LOGUE, and SCALES, JJ.)
(LOGUE, Judge.) Steven Frischer appeals from a final order of the trial court
denying his motion for attorney’s fees and prejudgment interest as a sanction
under section 57.105, Florida Statutes (2011), and denying him costs as the
prevailing party under section 57.041, Florida Statutes (2011).
denying his motion for attorney’s fees and prejudgment interest as a sanction
under section 57.105, Florida Statutes (2011), and denying him costs as the
prevailing party under section 57.041, Florida Statutes (2011).
We affirm the denial of attorney’s fees under section 57.105. A trial court’s
denial of a motion for attorney’s fees under section 57.105 is reviewed for
abuse of discretion. Puglisi v. Puglisi, 135 So. 3d 1146, 1147 (Fla. 5th
DCA 2014); Lago v. Kame By Design, LLC, 120 So. 3d 73, 74 (Fla. 4th DCA
2013). Admittedly, this lawsuit was filed almost fifteen years after the
applicable statute of limitations had run. The argument, however, that the cause
of action did not accrue until recently, although feeble, was not so entirely
devoid of merit that the trial court’s decision to decline to award fees rose to
the level of an abuse of discretion.
denial of a motion for attorney’s fees under section 57.105 is reviewed for
abuse of discretion. Puglisi v. Puglisi, 135 So. 3d 1146, 1147 (Fla. 5th
DCA 2014); Lago v. Kame By Design, LLC, 120 So. 3d 73, 74 (Fla. 4th DCA
2013). Admittedly, this lawsuit was filed almost fifteen years after the
applicable statute of limitations had run. The argument, however, that the cause
of action did not accrue until recently, although feeble, was not so entirely
devoid of merit that the trial court’s decision to decline to award fees rose to
the level of an abuse of discretion.
The trial court, however, erred in failing to award costs. Section 57.041
provides:
provides:
(1) The party recovering judgment shall recover all of his or her
legal costs and charges which shall be included in the judgment; but this
section does not apply to executors or administrators in actions when they are
not liable for costs.
(2) Costs may be collected by execution on the judgment or order
assessing costs.
A trial court has no discretion whether to award costs pursuant to this
section. Higgs v. Klock, 873 So. 2d 591, 592 (Fla. 3d DCA 2004) (“[U]nder
the statute, every party who recovers a judgment in a legal proceeding is
entitled as a matter of right to recover lawful court costs, and a trial judge
has no discretion to deny costs to the parties recovering judgment.”) (internal
quotation and citation omitted); Wilkerson v. Johnson, 139 So. 3d 965,
967 (Fla. 1st DCA 2014) (“Courts have interpreted this statute as removing from
the trial court the discretion to deny costs to the prevailing party in a civil
action.”). Frischer specifically requested costs as the prevailing party
pursuant to section 57.041. Because Frischer was the prevailing party, he was
entitled to an award of costs.
section. Higgs v. Klock, 873 So. 2d 591, 592 (Fla. 3d DCA 2004) (“[U]nder
the statute, every party who recovers a judgment in a legal proceeding is
entitled as a matter of right to recover lawful court costs, and a trial judge
has no discretion to deny costs to the parties recovering judgment.”) (internal
quotation and citation omitted); Wilkerson v. Johnson, 139 So. 3d 965,
967 (Fla. 1st DCA 2014) (“Courts have interpreted this statute as removing from
the trial court the discretion to deny costs to the prevailing party in a civil
action.”). Frischer specifically requested costs as the prevailing party
pursuant to section 57.041. Because Frischer was the prevailing party, he was
entitled to an award of costs.
Affirmed in part; reversed in part; and remanded for proceedings consistent
with this opinion.
with this opinion.
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