IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
APPELLATE DIVISION

KHALAF HEALTH CENTER, INC.,

                        Appellant,

vs.                                                                                             Appeal No. 99-8032-CI-88A

                                                                                         (Consolidated with No. 99-8033-CI-88A)

ALLSTATE INSURANCE CO.,

                        Appellee.

____________________________________/

Opinion filed ________________________

Appeals from Final Judgment
County Court, Small Claims Division, Pinellas County
The Honorable Walter Fullerton

Timothy A. Patrick, Esquire
1906 North Tampa Street
Tampa, FL  33602
Attorney for Appellant

Charles W. Hall, Esquire
Post Office Box 210
St. Petersburg, FL  33731
Attorney for Appellee

ORDER AND OPINION

            THIS CAUSE came before the Court on appeal, filed by Khalaf Health Center, Inc., (Appellant), from a Final Judgment as to Attorney’s Fees and Costs, entered November 2, 1999, in favor of Allstate Insurance Company (Appellee).  Upon review of the record and the briefs and being otherwise fully advised, this Court finds that the Final Judgement as to Attorney’s Fees and Costs (Final Judgment) is vacated, in part, as set forth below.

            The record shows that the Final Judgment was entered pursuant a previously rendered order, Second Order Dismissing Complaint and Order for Fees and Costs (Order), entered June 28, 1999.  The Order found that the Appellee was entitled to attorney’s fees and costs pursuant to Section 57.105, Florida Statutes (1999), as the “litigation initiated by Khalaf was unnecessary” and “[t]here was no issue of law or fact.”  See Fla. Stat. § 57.105(1)(1999)(note that the recently amended version of this statute does not apply to this appeal).  The Appellant accepted the propriety of this Order.  See Marine Midland Bank Central v. Cote, 384 So.2d 658, 659 (Fla. 5th DCA 1980)(finding that the parties have a right to appeal any matter by which they may be aggrieved and their failure to do so acts as an acceptance of the propriety of the matter).    

            Once the lower court made the determination that there was a complete absence of a justiciable issue of law or fact, the award of attorney’s fees to the prevailing party, the Appellee, was required.  See Debra v. Orange County, 445 So.2d 404, 405 (Fla. 5th DCA 1894)(citations omitted).  In the present case, the Appellee had already moved for attorney’s fees pursuant to Section 57.105, which the lower court granted in its court Order of June 28, 1999.  The only issue that remained was the amount of attorney’s fees to be awarded. Therefore, it would have been reversible error had the lower court not entered the Final Judgment awarding the Appellee reasonable attorney’s fees.  (emphasis added); See id.; see also Wright v. Acierno, 437 So.2d 242, 243 (Fla. 5th DCA 1983)(stating that the use of the word “shall” in the statute evidences the legislative intention to impose a mandatory penalty in the form of a reasonable attorney’s fee once the determination has been made that there was a complete absence of a justiciable issue by the losing party)(citations omitted).

            Further, although the Order upon which the Final Judgment was entered did not expressly state there was a “complete absence of a justiciable” issue of law or fact, such finding is implicit in the Order, the correctness of which has not been properly challenged.  See Wright, 437 So.2d at 243; see also Whitten v. Progressive Casualty Co., 410 So.2d 501, 505 (Fla. 1982)(setting forth various findings made by Florida appellate courts to award fees under Section 57.105)(citations omitted).  Even so, a review of the record demonstrates that the underlying action brought by the Appellant was the kind of frivolous and baseless claim intended to be discouraged by the enactment Section 57.105.  See Whitten, 410 So.2d at 505 (citing that frivolous litigation constitutes a reckless waste of judicial resources as well as the time and money of prevailing litigants).

            However, the Final Judgment, as to attorney’s fees, must be vacated nonetheless due to the lower court’s failure to receive and consider testimony of the attorneys and paralegals upon whose time the fee award was based.  See In re One 1972 Volvo Vehicle, I.D.# 1426363290699 Florida Tag # 848, 489 So.2d 1240, 1240 (Fla. 4th DCA 1986)(reversing the award of attorney’s fees because the attorney who performed the services did not personally testify to the award); see also Doug Sears Consulting, Inc. v. ATS Services, Inc., 752 So.2d 668, 670 (Fla. 1st DCA 2000)(citing that an affidavit is ordinarily not admissible to prove facts in issue at an evidentiary hearing). The Appellee concedes on this issue. 

            As the Final Judgment is vacated, in part, this Court need not address the Appellant’s final issue of whether the lower court failed to make sufficient findings of fact to support the attorney’s fees awarded.  Finally, the award of costs in the Final Judgment is affirmed, as it was not raised or discussed in this appeal.  See City of Miami v. Steckloff, 111 So.2d 446, 447 (Fla. 1959)(stating that points covered by a decree of a trial court will not be considered by the appellate court unless they are properly raised and discussed in the briefs).

                        Therefore, it is,

            ORDERED AND ADJUDGED that the Final Judgment as to Attorney’s Fees and Costs is vacated, in part.  This cause is remanded for an evidentiary hearing on Attorney’s Fees, as set forth above, upon which an Amended Final Judgment may be entered.  It is further

            ORDERED AND ADJUDGED that the Appellee’s Motion for Award of Attorney’s Fees is denied.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this 10th day of January 2001.

                                                                                                                                                

___________________________________
W. DOUGLAS BAIRD

Circuit Judge, Appellate Division

 

Copy Furnished To:

The Honorable Walter Fullerton

Timothy A. Patrick, Esquire
1906 North Tampa Street
Tampa, FL  33602

Charles W. Hall, Esquire
Post Office Box 210
St. Petersburg, FL  33731

Staff Attorney, Appellate Division