Love v. Jacobson
| Decision Date | 25 November 1980 |
| Docket Number | No. 80-515,80-515 |
| Citation | 390 So.2d 782 |
| Parties | Sadie LOVE and Clyde Love, her husband, Appellants, v. Ira S. JACOBSON, M.D., and North Dade Hospital, Inc., Appellees. |
| Court | Florida District Court of Appeals |
Cohen & Kokus and Linda Koenigsberg, Miami, for appellants.
Fowler, White, Burnett, Hurley, Banick & Strickroot and Michael J. Murphy, Miami, for appellees.
Before HENDRY and BASKIN, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
We are asked by appellants Sadie Love and Clyde Love to consider the propriety of an order taxing attorney's fees against them following dismissal of their medical malpractice action. The court found there was no justiciable issue of either law or fact. We reverse because Section 57.105, Florida Statutes (Supp.1978) did not become effective until approximately a year and a half after the commencement of the action and is not retroactive.
On January 18, 1977, the Loves sued North Dade Hospital and their doctor, Dr. Jacobson, for negligent treatment of a fractured arm. Because medical mediation proceedings had not yet terminated, the complaint was dismissed and later reinstated. The hospital filed a motion for summary judgment which was denied. On the date of trial, the Loves voluntarily dismissed their action. The hospital then sought attorney's fees, and costs, and the trial court awarded $6,000 attorney's fees. In response to a motion, the court entered a corrected order taxing attorney's fees which included a finding that no justiciable issue of law or fact existed. This order was entered after the notice of appeal had been filed.
Section 57.105, Florida Statutes (Supp.1978) provides:
Attorney's Fee.-The court shall award a reasonable attorney's fee to the prevailing party in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party.
Prior to the effective date of that statute, June 15, 1978, no right to attorney's fees existed for the complete absence of a justiciable issue of law or fact. Unless legislative intent to the contrary is disclosed, statutes operate prospectively. Walker & LaBerge v. Halligan, 344 So.2d 239 (Fla.1977); Fleeman v. Case, 342 So.2d 815 (Fla.1976); Foley v. Morris, 339 So.2d 215 (Fla.1976). No clear legislative intent mandating retroactive application appears in the language of the statute. Even without a legislative mandate, however, procedural rights granted by a statute may be applied retroactively because no vested rights in any mode of procedure exist. Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207 (1949); Walker & LaBerge v. Halligan, supra. If the statute does not affect vested rights or create new obligations, it may be applied retroactively. Conversely, parties are entitled to rely on substantive rights which vested before the passage of a new statute. Walker & LaBerge v. Halligan, supra.
Appellee contends that the rights afforded by the...
To continue reading
Request your trial
-
Whitten v. Progressive Cas. Ins. Co.
...v. Toyota Motors Center, Inc., 391 So.2d 697 (Fla.3d DCA 1980); Hernandez v. Leiva, 391 So.2d 292 (Fla.3d DCA 1980); Love v. Jacobson, 390 So.2d 782 (Fla.3d DCA 1980). The holdings of Allen v. Estate of Dutton and these later cases comport with the intent of the legislature in adopting the ......
-
Foliage Design Systems, Inc. v. Fernandez
...Gas District v. Mandel, 394 So.2d 453 (Fla. 1st DCA 1981); Ship Shape v. Taylor, 397 So.2d 1199 (Fla. 1st DCA 1981); Love v. Jacobson, 390 So.2d 782 (Fla. 3d DCA 1980); Myers v. Carr Const. Co., 387 So.2d 417 (Fla. 1st DCA 8/4/80), rehearing denied, (Fla. 1st DCA 9/22/80); Southern Bell Tel......
-
American Cast Iron Pipe Co. v. Foote Bros. Corp.
...existing, City of Lakeland v. Catinella, supra; those which do not affect vested rights or create new obligations, Love v. Jacobson, 390 So.2d 782 (Fla. 3d DCA 1980); and those which affect only the measure of damages for vindication of a substantive right, Walker & LaBerge, Inc. v. Halliga......
-
Belcher v. First Nat. Bank of Miami
...application of Section 57.105 since the statute took effect June, 1978 and this appeal was filed in November, 1978, Love v. Jacobson, 390 So.2d 782 (Fla.3d DCA 1980), we nonetheless find that they are not merited under the facts of this case. In light of the recent Popovich ruling, appellan......