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.