Ruth Cosner and Law Firm of Topkin & Partlow v. Michael Park

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

RUTH COSNER and LAW FIRM OF TOPKIN & PARTLOW,
Appellants,

v.

MICHAEL PARK,
Appellee.

No. 4D14-2543

[November 25, 2015]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Edward H. Fine, Judge; L.T. Case No.
502013CA013207XXXXMB.

Peter J. Porcaro of Topkin & Partlow, P.L., Deerfield Beach, for
appellants.

Bambi G. Blum of Bambi G. Blum, P.A., Miami, and Lance W. Shinder
of Lance W. Shinder, P.A., Boca Raton, for appellee.

ROBY, WILLIAM L., Associate Judge.

We affirm the final judgment entered by the trial court and grant the
defendant/appellee’s motion for appellate attorney’s fees incurred in
defending this appeal pursuant to section 57.105, Florida Statutes (2013).
“[I]t is well settled that appellate courts can award appellate attorney’s fees
under [section 57.105].” Waddington v. Baptist Med. Ctr. of the Beaches,
Inc., 78 So. 3d 114, 117 (Fla. 1st DCA 2012). “[A] ‘frivolous’ appeal is one
which raises arguments a reasonable lawyer would either know are not
well grounded in fact, or would know are not warranted either by existing
law or by a reasonable argument for the extension, modification, or
reversal of existing law.” Id. (quoting Visoly v. Sec. Pac. Credit Corp., 768
So. 2d 482, 491 (Fla. 3d DCA 2000)).

Not only was the underlying matter without merit, this appeal is
without merit as well. The appellant’s first argument on appeal was not
preserved below, and her third argument is clearly contradicted by case
law from this Court. Her second argument is perhaps the strongest of the
three, yet she has pointed to no record evidence to support her assertion
that she or her counsel had a good faith basis for believing the appellee
was liable.

In her response to the appellee’s motion for attorney’s fees, the
appellant’s counsel contends that the appellant was “never given the
opportunity” to present certain argument to the trial court because

[t]he lower court simply granted the [section] 57.105 [fees]
after the summary judgment was granted, and never heard
arguments, nor allowed the case law provided in Appellant’s
Initial Brief of this Appeal to be presented to the lower court
in its determination of awarding fees pursuant to
Defendant/Appellee’s Motion for Sanctions.

This is an extremely misleading assertion because the record reveals that
the trial court held a hearing on the appellee’s motion for attorney’s fees
on March 18, 2014. The appellant, however, has not provided a transcript
of the hearing.

Overall, this appeal meets the standard for frivolousness, and therefore
an award of fees to the appellee is appropriate. The appellee’s motion for
attorney’s fees is therefore granted and the case is remanded to the trial
court to determine the amount of the same. The appellant’s motion for
attorney’s fees is denied.

MAY and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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