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933 So. 2d 567

Docket No. 1D05-5306.

Smith v. Gore

Tarrell J. SMITH and wife, June E. Smith, Appellants, v. Damon L. GORE and wife, Kimberly M. Gore, Appellees.

District Court of Appeal of Florida

Decided March 17, 2006.

Rehearing Denied April 19, 2006.

District Court of Appeal of Florida · decided 2006-03-17

Cited by 3 later decisions — most recently February 2015

3 state decisions

Key passage — most relied on by later courts

“[w]e again remind the bar that section 57.105 expressly states courts `shall' assess attorney's fees for bringing, or failing to timely dismiss, baseless claims or defenses.”

quoted by 2 later decisions, including Danziger v. Alternative Legal, Inc., 953 So. 2d 677 - De Vaux v. Westwood Baptist Church

“(1) Upon the court's initiative or motion of any party, the court shall award a reasonable attorney's fee to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) Was not supported by the material facts necessary to establish the claim or defense; or (b) Would not be supported by the application of then-existing law to those material facts. However, the losing party's attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts. If the court awards attorney's fees to a claimant pursuant to this subsection, the court shall also award prejudgment interest.”

quoted by 1 later decision, including Danziger v. Alternative Legal, Inc.

Relies on 913 So. 2d 5 - Albritton v. Ferrera

Good law ✅— No negative treatment on recordhow we know

Decided 2006-03-17

View the full empirical analysis of this case →

¶1D. Michael Chesser, Shalimar, for appellants.

¶2Richard H. Powell, Ft. Walton Beach, for appellees.

¶3PER CURIAM.

¶4Appellants seek review of an order granting specific performance of a residential sale and purchase contract. Appellees moved to dismiss this appeal. In response to the motion to dismiss, Appellants filed a notice of voluntary dismissal. Appellees now move for attorney's fees pursuant to section 57.105, Florida Statutes (2005). We grant the motion.

¶5Following the lower court's final judgment granting specific performance, Appellants conveyed to Appellees the subject residential dwelling on October 20, 2005. The warranty deed was recorded on October *568 21, 2005. Appellants filed the instant appeal on November 2, 2005.

¶6Significantly, Appellants filed their appeal after attending the closing of the real estate transaction and accepting the benefits of the transaction. By closing the real estate transaction, Appellants recognized the validity of the final judgment entered by the lower court, closed on the contract, deeded the property to Appellees, and accepted payment of the contract sale price. Thus, when Appellants filed the appeal, they knew or should have known the grounds argued for reversal were not supported by material facts necessary to establish relief, nor were they supported by the application of then-existing law to those material facts. See § 57.105(1)(a)(b), Fla. Stat. (2005); see also Albritton v. Ferrera,913 So.2d 5 (Fla. 1st DCA 2005).

¶7We again remind the bar that section 57.105 expressly states courts "shall" assess attorney's fees for bringing, or failing to timely dismiss, baseless claims or defenses. See Albritton,913 So.2d at 8-9 (noting the word "shall" in section 57.105 evidences "the legislative intent to impose a mandatory penalty in the form of reasonable attorney's fees to discourage baseless claims, by placing a price tag on losing parties who engage in these activities.") (emphasis in original).

¶8Appellees' motion for attorney's fees is GRANTED, and the case REMANDED to the trial court to assess the amount.

¶9VAN NORTWICK, HAWKES and THOMAS, JJ., concur.

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