Schnellenberger v. Merslich

¶1Suzanne Schnellenberger appeals from a final order awarding $27,750 in attorney’s fees to Linda Merslich, stemming from previous litigation where Schnellenberger had sued Merslich for fraud and civil theft. We reverse the order under review.

¶2Schnellenberger originally sued her aunt, Merslich, after being induced by Merslich to sign papers transferring the contents of a Totten trust bank account, unknowingly held by Schnellenberger, into a joint account with Merslich.1 The trial court found that Merslich committed fraud, larceny by trick and civil theft, and awarded Schnellenberger compensatory damages of *149$50,566.84. The trial court also awarded punitive damages of $25,000 based upon the fraud and larceny by trick, but declined to award treble damages under the civil theft statute. In the ensuing direct appeal, not only did Merslich appeal several aspects of the final judgment, but Schnellen-berger cross-appealed the denial of treble damages. This court affirmed, in all respects, on both the direct appeal and cross-appeal. See Merslich v. Schnellenberger, 578 So.2d 725-26 (Fla. 3d DCA 1991).

¶3Unfortunately, the parties thereafter improperly relied on dicta in that opinion, and operated under the misapprehension that our affirmance of the denial of treble damages was tantamount to a reversal of the civil theft finding. It was not. Proceeding under this misapprehension, Merslich was awarded attorney’s fees under Section 772.-11, Florida Statutes (1991). However, since Schnellenberger’s original claim was clearly not “without substantial fact or legal support,” the trial court’s award of attorney’s fees to Merslich was incorrect, and is, accordingly, reversed. See § 772.-11, Fla.Stat. (1991).

¶4Our resolution of Schnellenberger’s appeal moots Merslich’s cross-appeal.

¶5Reversed.