616 So. 2d 1048

Barbara JONES, as Personal Representative of the Estate of Dewey Polly, James Willis, as Trustee of the Polly-Bannister Trust and as Trustee of the Sunset Views Trust, and Avenell Polly, Appellants, v. SOLDAVINI & GUALARIO, INC., and John Soldavini, Appellees.

No. 92-01464.

District Court of Appeal of Florida, Second District.

March 24, 1993.

Rehearing Denied April 28, 1993.

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.

FRANK, Acting Chief Judge.

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 “[mjerely 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.

Jones v. Soldavini & Gualario, Inc.
616 So. 2d 1048

Case Details

Name
Jones v. Soldavini & Gualario, Inc.
Decision Date
Mar 24, 1993
Citations

616 So. 2d 1048

Jurisdiction
Florida

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