02-1238 NEUSTEIN V. MIAMI SHORES

State: Florida

Court: Florida Third District Court

Docket No: 02-1238 NEUSTEIN V. MIAMI SHORES

Case Date: 12/26/2002

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2002

CHARLES NEUSTEIN, Appellant, vs. MIAMI SHORES VILLAGE,

** ** ** ** LOWER ** TRIBUNAL NO. 01-522 CASE NO. 3D02-1238

Appellee. ** Opinion filed December 26, 2002. An appeal from the Circuit Court for Dade County, Jennifer D. Bailey, Judge. Charles Neustein, in proper person. Genovee appellee. Joblove & Battista and Richard Sarafan, for

Before COPE, GERSTEN and SHEVIN, JJ.

PER CURIAM. Charles Neustein appeals a final judgment assessing

attorney's fees against him under subsection 57.105(1), Florida Statutes (2001). We affirm in part and reverse in part.

Mr. Neustein, acting as attorney for Seawinds Healthcare Services, L.L.C., obtained an ex parte temporary injunction against Miami Shores Village. Subsequently, Mr. Neustein filed

a voluntary dismissal on behalf of the plaintiff.

The trial

court found that the Village was entitled to attorney's fees under subsection 57.105(1), Florida Statutes. The court

determined that a reasonable attorney's fee for the Village was $11,500 which was assessed jointly and severally against Mr. Neustein and Mohammed Ibrahim, the President of Seawinds. Neustein has appealed the judgment entered against him.1 We affirm on the issue of entitlement. dismissal did not oust the trial court of The voluntary jurisdiction to Mr.

entertain the subsection 57.105(1) motion.

See Fla. R. Civ. P. We

1.525(2001); Ganz v. HZJ, Inc., 605 So. 2d 871 (Fla. 1992).

reject the remaining challenges on the issue of entitlement on authority of Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979), and Broadfoot v. Broadfoot, 791 So. 2d 584, 585 (Fla. 3d DCA 2001). We reverse on the amount, and remand with directions to reduce the amount of the judgment to fifty percent of $11,500. In an ordinary award of 57.105(1) fees, "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 . . . ." added).2

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