Opinion
No. 94-2498.
June 28, 1995. Rehearing Denied September 13, 1995.
Appeal from the Circuit Court, Dade County, S. Peter Capua, J.
Manzini Stevens and Nicolas A. Manzini and Maidenly Sotuyo-Macaluso, for appellant.
Stroock Stroock Lavan and Steven J. Solomon, for appellee.
Before SCHWARTZ, C.J., and BASKIN and COPE, JJ.
Jose Losada appeals the denial of attorney's fees and costs in an action brought against him by appellee Humana Medical Plan, Inc. We affirm in part and reverse in part.
Humana filed suit against Losada seeking injunctive relief under subsection 812.035(6), Florida Statutes (1989). We agree with Losada that attorney's fees are awardable to a defendant under subsection 812.035(7), Florida Statutes, where a private plaintiff seeks injunctive relief pursuant to subsection 812.035(6), "upon a finding that the claimant raised a claim which was without substantial fact or legal support." Id. § 812.035(7). However, on the merits the statutory standard for an award of attorney's fees has not been met in this case.
This appears to be the view of the Fourth District but not the Fifth. Compare Gambolati v. Sarkisian, 622 So.2d 47 (Fla. 4th DCA 1993) and Friedman v. Lauderdale Medical Equip. Serv., Inc., 591 So.2d 328 (Fla. 4th DCA 1992) with S.A.B.T.C. Townhouse Ass'n, Inc. v. Schmitz, 565 So.2d 827, 830 (Fla. 5th DCA 1990). However, it is not clear whether any of the cited cases involved a claim under subsection 812.035(6).
We reverse the denial of Losada's request for costs. Humana voluntarily dismissed its action against Losada. Under Florida Rule of Civil Procedure 1.420(d), "Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action." We remand for an award of costs to Losada under Rule 1.420(d).
Affirmed in part, reversed in part, and remanded for an award of costs under Florida Rule of Civil Procedure 1.420(d).