Russell v. State
| Citation | 417 So.2d 1119 |
| Decision Date | 11 August 1982 |
| Docket Number | No. 81-531,81-531 |
| Parties | Major RUSSELL, as Personal Representative of the Estate of Mary Jean Bradham, Deceased, and on behalf of Norman Bradham, Jeffery Bradham and Greg Bradham, minor children of Mary Jean Bradham, deceased, Appellants, v. The STATE of Florida and Gordon Oldham, Jr., as State Attorney For the Fifth Judicial Circuit of the State of Florida, an agency of the State of Florida, Appellees. |
| Court | Court of Appeal of Florida (US) |
Kenneth R. Cate and Herbert H. Hall, Jr., of Maher, Overchuck, Langa & Cate, Orlando, and Sammy Cacciatore of Nance, Cacciatore & Sisserson, Melbourne, for appellants.
David R. Best of Maguire, Voorhis & Wells, P. A., Orlando, for appellees.
This appeal is from an order assessing attorney's fees against appellant, plaintiff below, under section 57.105, Florida Statutes (1979). We reverse.
The underlying litigation out of which the assessment arose was an action for damages against the State of Florida and the State Attorney for the Fifth Judicial Circuit in which it was alleged, in substance, that the State was negligent in not using due care to secure the "preventive detention" of decedent's estranged husband when he was taken into custody for assaulting decedent, when the State knew that he had beaten her on previous occasions and had threatened to kill her. The complaint further alleged that decedent's husband was released from custody on his own recognizance because no representative of the State Attorney's office was present at the preliminary hearing to advise the court of his past history of violence and to request "preventive detention" to avoid further violence to decedent's person. It was alleged that the negligence of the State Attorney in failing to take steps to prevent Ernest's release was a proximate cause of Mary's death at Ernest's hands a few days thereafter, and that under section 768.28, Florida Statutes (1979), (waiver of sovereign immunity), the State should respond in damages.
A final summary judgment was entered for defendants and against the plaintiff, and on appeal to this court, the judgment was affirmed. Russell v. State, 392 So.2d 91 (Fla. 5th DCA 1980). Following the issuance of our mandate, on motion by the State, the order appealed from was entered, awarding attorney's fees to appellees in the amount of $5,000.
To justify an award under section 57.105, the trial court must find that the action is frivolous; i.e., that the action is so devoid of merit both on the facts and the law as to be completely untenable. Whitten v. Progressive Casualty Insurance Company, 410 So.2d 501 (Fla.1982); Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980). A frivolous action is not merely one that is likely to be unsuccessful. Instead, like a frivolous appeal [i]t is one that is so readily recognizable as devoid of merit on the face of the record that there is little, if any, prospect that it can succeed. It must be one so clearly untenable, or the insufficiency of which is so manifest on a bare inspection of the record ... that its character may be determined without argument or research.
410 So.2d at 505, 384 So.2d at 175.
The purpose of section 57.105 is to discourage baseless claims, stonewall defenses and sham appeals in civil litigation by placing a price tag through attorney's fees awards on losing parties who engage in these activities. Whitten, at 505. On the other hand, the statute should not be so construed that it will have a chilling effect on parties who, for example, may unsuccessfully attempt to raise questions of first impression, nor should it be construed in a manner that will deter the future growth of the law by exacting a price for today's unavailing efforts to change it. 1 Parkway General Hospital v. Stern, 400 So.2d 166 (Fla. 3d DCA 1981).
Here, appellants attempted to convince the court in the main action that the State should respond in damages under the facts in this case because...
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Cate v. Oldham
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