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518 So. 2d 445

Docket No. 4-86-1162.

Jones v. Charles

Donna JONES and Harry Jones, Appellants, v. Mark CHARLES, Appellee.

District Court of Appeal of Florida

Decided January 13, 1988.

District Court of Appeal of Florida · decided 1988-01-13

Key passage — most relied on by later courts

“[a] party asserting a good faith, soundly-based attempt to change an existing rule of law is not subject to attorney's fees under section 57.105.”

quoted by 2 later decisions, including 629 So. 2d 1022 - Wiggins v. Southern Management Corp., 660 So. 2d 410 - CARNIVAL LEISURE INDUSTRIES v. Holzman

Relies on 410 So. 2d 501 - Whitten v. Progressive Cas. Ins. Co. · 497 So. 2d 644 - Shands Teaching Hosp. and Clinics v. Smith · 400 So. 2d 166 - Parkway General Hospital, Inc. v. Stern

Good law ✅— No negative treatment on recordhow we know

Decided 1988-01-13

How this case has been cited

Cited by 6 later decisions — most recently December 2002

6 state decisions

30198819902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1*446 Stuart A. Teller of Frank & Flaster, P.A., Fort Lauderdale, for appellants.

¶2Robert L. Gossett of Hodges, Gossett, McDonald, Gossett & Crawford, P.A., Hollywood, for appellee.

¶3HERSEY, Chief Judge.

¶4Appellants brought suit against the owner of property abutting a public sidewalk for damages for personal injuries allegedly resulting from the owner's negligence in failing to repair the sidewalk. Attorney's fees under section 57.105, Florida Statutes (1985), were allowed against the appellants after summary judgment had been granted in favor of the defendant. Appellants appeal the award of attorney's fees. The issue is whether appellants' lawsuit was frivolous. See Whitten v. Progressive Casualty Insurance Company,410 So.2d 501 (Fla. 1982).

¶5Appellee, relying on Woods v. City of Palatka,63 So.2d 636 (Fla. 1953), Freundlich v. South Seas Operating Corporation,398 So.2d 490 (Fla. 3d DCA 1981), Cantens v. Jeff-Son, Inc.,381 So.2d 307 (Fla. 3d DCA 1980), and Beattie v. City of Coral Gables,358 So.2d 1131 (Fla. 3d DCA 1978), contends that the law is settled that one on whom a municipal ordinance imposes a duty to maintain a sidewalk is not liable to a member of the public whose personal injury is caused by failure to properly maintain and repair the sidewalk. Therefore, argues appellee, appellants' complaint was legally baseless.

¶6We agree with appellants, however, that to the extent that the law is contrary to their position, their complaint constituted a reasonable good faith effort to effect a change in the law. See Gornto v. Marks,311 So.2d 177, 178-79 (Fla. 1st DCA 1975) (Boyer, J., dissenting). A party asserting a good faith, soundly-based attempt to change an existing rule of law is not subject to attorney's fees under section 57.105. Parkway General Hospital, Inc. v. Stern,400 So.2d 166 (Fla. 3d DCA 1981), disapproved on other grounds, Shands Teaching Hospital and Clinics, Inc. v. Smith,497 So.2d 644 (Fla. 1986).

¶7We reverse that provision of the order on appeal which assesses section 57.105 attorney's fees against appellants and remand for correction of the order.

¶8REVERSED AND REMANDED.

¶9GUNTHER, J., and RIVKIND, LEONARD, Associate Judge, concur.

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