On October 5, 2011, the Second District Court of Appeal held that it was error for the trial court to award attorney fees against Plaintiff and her attorney under section 57.105 because the case involved “opposing stories and opposing evidence” and the conflicting testimony was sufficient not only to give the court “pause,” but also to require an internal “struggle” for the court to resolve the case.
In Siegel v. Rowe, 71 So. 3d 205 (Fla. 2d DCA 2011), Cynthia A. Leahy-Fernandez (“Plaintiff”), brought an action for repayment of an alleged loan. In 2004, after Plaintiff and her husband sold their home in Hawaii, they sent a total of $50,000 to Mr. Rowe, Ms. Rumbough, and Five-Star Realty, the property manager and its principals that managed their property. Id. at 207. One check was payable to Rowe for $20,000, another check was payable to Rumbough for $20,000, and the third check was payable to Five-Star Realty for $10,000. Id. at 207-08. The memorandum line on the checks payable to Rowe and Rumbough read “PERSONAL” and the memorandum line on the check to Five-Star was blank. Id. at 208. Besides the cancelled checks, the $50,000 transaction between the two parties was completely undocumented and there were no third-party witnesses with knowledge of the parties’ intent. Id.
