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594 So. 2d 342

Docket Nos. 90-02509, 91-00495.

Hirtreiter v. Donovan

Arthur B. HIRTREITER and Marion Hirtreiter, Appellants, v. Shelly J. DONOVAN, William Johansen, and Edward J. Ludden, Appellees.

District Court of Appeal of Florida · decided 1992-03-04

Cited by 7 later decisions — most recently August 2002

7 state decisions

Relies on 410 So. 2d 501 - Whitten v. Progressive Cas. Ins. Co. · 567 So. 2d 56 - Harrison v. Rambuski

Good law ✅— No negative treatment on recordhow we know

Decided 1992-03-04

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¶1*343 Louis S. St. Laurent II of St. Laurent & St. Laurent, P.A., Miami, for appellants.

¶2Brian D. Elias of Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A., Miami, for appellees Donovan and Johansen.

¶3Charles W. Pittman and Harold D. Oehler of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee Ludden.

¶4PER CURIAM.

¶5The plaintiffs, who were parties to an arbitration proceeding, appeal from two orders of the trial court granting attorney's fees to defendants pursuant to section 57.105, Florida Statutes (1989).

¶6We reverse as to defendant Donovan because the order "contains no finding ... regarding a complete absence of a justiciable issue." Harrison v. Grubb,567 So.2d 56, 57 (Fla. 2d DCA 1990) (quoting Whitten v. Progressive Casualty Ins. Co.,410 So.2d 501, 506 (Fla. 1982)). Attorney's fees may be imposed under that section in favor of that defendant upon remand only if the necessary finding is made. Harrison,567 So.2d at 57.

¶7We reverse as to defendants Ludden and Johansen. We do not conclude there was such a complete absence of a justiciable issue as to those defendants simply because the result of prior arbitration of plaintiffs' claim against Donovan was adverse to plaintiffs. They were not parties to the arbitration proceeding, and we cannot conclude that plaintiffs' attempt to seek a judicial determination of their liability was frivolous, notwithstanding the availability to them of the defense of collateral estoppel arising from the result reached in arbitration.

¶8LEHAN, A.C.J., and FRANK and PATTERSON, JJ., concur.

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