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Fox v. Loeffler

District Court of Appeal of Florida, Fourth District
Jul 20, 1983
434 So. 2d 2 (Fla. Dist. Ct. App. 1983)

Opinion

No. 82-1286.

May 25, 1983. Rehearing Denied July 20, 1983.

Appeal from the Circuit Court, Palm Beach County, Lewis Kapner, J.

Martin L. Roth of Law Offices of Haber Roth, Miami, for appellant.

Thomas F. Ryan of Ryan Ryan, North Palm Beach, for appellees.


We affirm the appealed order except for the portion awarding attorney fees to appellees, which fee award we reverse.

The appealed order provided:

"2. The Motion for Attorneys Fees for Loeffler and Fox is hereby granted for costs and attorney's fees which have been incurred since June 1, 1978, that being the time when Florida Statute 57.105 became law."

It, as shown, contained no finding by the circuit court regarding a complete absence of justiciable issue. We reverse upon authority of Whitten v. Progressive Cas. Ins. Co., 410 So.2d 501 (Fla. 1982) and Strothman v. Henderson Mental Health Center, Inc., 425 So.2d 1185 (Fla. 4th DCA, 1983).

Affirmed in part; reversed in part.

DOWNEY, DELL and WALDEN, JJ., concur.


UPON MOTION FOR REHEARING


Appellees ask that the cause be remanded to the trial court with directions to make an appropriate finding based on the record as to whether or not there was a complete absence of any justiciable issues, and to then assess or deny attorney fees based on that finding as was done in City of Miami Beach v. Town of Bay Harbor, 380 So.2d 1112 (Fla. 3d DCA 1980). We agree and modify our original opinion so as to remand with such instructions.

Having modified our initial opinion, the motion for rehearing is

DENIED.

DOWNEY and DELL, JJ., concur.


Summaries of

Fox v. Loeffler

District Court of Appeal of Florida, Fourth District
Jul 20, 1983
434 So. 2d 2 (Fla. Dist. Ct. App. 1983)
Case details for

Fox v. Loeffler

Case Details

Full title:WILLIAM L. FOX, APPELLANT, v. RITA M. LOEFFLER AND FLORENCE E. FOX…

Court:District Court of Appeal of Florida, Fourth District

Date published: Jul 20, 1983

Citations

434 So. 2d 2 (Fla. Dist. Ct. App. 1983)

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