NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

COLLEEN J. MacALISTER, ) ) Appellant, ) ) v. ) Case No. 2D14-1549 ) BEVIS CONSTRUCTION, INC., and ) MICHAEL BEVIS, ) ) Appellees. ) ) Opinion filed May 27, 2015.

A ppeal from the Circuit Court for Highlands County; J. David Langford and Peter F. Estrada, Judges. Colleen J. MacAlister, pro se. Scott R. LeConey of Swain & Harris, P.A., Lake Placid, for Appellees.

CASANUEVA, Judge. Colleen J. MacAlister appeals a final judgment finding her lia ble for attorneys' fees and costs in the amount of $75,771.40. Ms. Mac Alister, an attorney who represented James DeRosa and Kathleen DeRosa in the underlying action, asserts that the trial court erred in finding that Bevis Construction, Inc., was entitled to fees and costs pursuant to section 57.105, Florida Statutes (2012), and erred in its determination- 2 - of a reasonable attorneys' fee amount. We conclude that the tr ial court erred as to entitlement and reverse, rendering moot the issue regarding the amount of fees. This proceeding has had what can best be described as a protra cted litigation history. It began with a construction contract ente red into by Michael Bevis

and Mr. and Mrs. DeRosa in 2004 for the construction of a home. Mr. Bevis was

identified in the contract as th e contractor. Mr. Bevis, howev er, was not a licensed contractor, and when disagreement s arose over the construction contract, he filed a claim of lien against the DeRosas' property in the name of his corporation, Bevis

Construction. Bevis Construc tion then commenced suit in Januar y 2005 against the DeRosas in county court for breach of contract and lien foreclo sure. During the pendency of the litigation, the Department of Busine ss and Professional Regulation began investigating Mr. Bevis for unlic ensed contracting. Mr. Bevis advised the Department that he was not pursuing the DeRos as for monies owed and that he had not filed a lien against the property when, in fact, a lien had been filed. The Department issued a cease an d desist order for unlicensed c ontracting and advised

Mr. Bevis that the invalid lien must be released or he would fa ce disciplinary action as well as possible administrative and criminal charges. Despite advising the Department that he was seeking to release the lien, Mr. Bevis continued with the prosecution of the case against th e DeRosas in county court. The lien was later released, but the release of lien wa s not filed in the county court case. Apparently unaware of the developments with the De partment and the release of lien, the county court entered judgment in favor of Bevis Construction. Following a motion for rehearing prompting the trial court's re view of the Department's- 3 - administrative file, a new trial was ordered and Bevis Construc tion was given thirty days to file an amended complaint against the DeRosas. Bevis Constr uction chose not to file an amended complaint, the case was dismissed, and the court res erved jurisdiction as to attorneys' fees. The county court found that the DeRosas we re entitled to attorneys' fees, but no fees were actually awarded because no evidence was introduced as to the reasonableness and amount of the fees charged. Next, the DeRosas began civi l proceedings against both Mr. Be vis and Bevis Construction in a multicount complaint filed in circuit c ourt. Relevant to this appeal is the count asserting malicious prosecution arising fro m the dismissed county court case. Among the allegations were that Mr. Bevis was not licensed, that Bevis

Construction knew that the claims were barred and that the cont ract was entered into by Mr. Bevis individually, and that Bevis Construction nonetheless prosecuted the DeRosas in county court for more than three years. The DeRosas sought damages of prior attorneys' fees incurred in the county court case and lat er were granted leave to amend to include a request for an award of punitive damages. In a motion for summary judgment directed in part at the malici ous prosecution claim, Bevis Construction argued that the DeRosas w ere precluded as a matter of law from seeking attorneys' fees from the county cour t case. Bevis Construction argued that the DeRosas' claim for fees was presen ted to and considered by the county court, making the claim for the same damages in t he malicious prosecution action an impermissible attempt at double recovery, citing Londono v. Turkey Creek, Inc., 609 So. 2d 14, 18 (Fla. 1992). This motion for summary judgment

was denied.- 4 - At trial Mrs. DeRosa testified regarding the contract, the clai m of lien, the prior county court proceedings, and the impact the proceedings had on the DeRosas, including the expense of attorneys' fees, the difficulty in fin ding subcontractors to work for them because of the problems with Mr. Bevis, being called d eadbeats who did not pay their bills, and the stress of the litigation. In summary, Mrs. DeRosa stated that it had been "[e]ight years of hell." An investigator with the Dep artment testified in support of the malicious prosecution count, recounting Mr. Bevis' acts and statements, and Mr. Bevis' prior sworn statements from the county court proceedings were presented for the jury's consideration. Pursuant to the pretrial conference order, the DeRosas listed f our witnesses who they asserted had knowledge of the personal actio ns and statements of Mr. Bevis which caused the DeRosas stress and harmed their repu tation. However, only one of the four was called at trial and his testimony did not support the claim. This ultimately formed the primary basis of Bevis Construction's arg ument for section 57.105

fees. On the third day of trial, the court took up the matter of whe ther prior county court attorneys' fees could be claimed as damages in the malicious prosecution claim. Bevis Construction again argued that such damages were not permissible because they had already been considered and denied. Counsel f or both sides argued different interpretations of Londono. Bevis Construction's cou nsel argued that Londono stands for the proposition t hat damages considered below cannot be sought again in a malicious prosecution claim, while the DeRosas' counsel argued that Londono simply prohibited double recovery. The trial court ruled in favor of Bevis Construction,- 5 - concluding that the fees could not be pursued in the instant ac tion because they were considered in the county court matter. 1

At the conclusion of the trial, Bevis Construction moved for a direct ed verdict on the malicious prosecution claim. The trial court de nied the motion and the matter went to the jury for determination. The jury found that Bevis Construction did not maliciously institute the county court action and, based on tha t finding, did not reach the issue of damages. Thereafter, Bevis Construction sought fees pursuant to section 57.105. In its order on entitlement, the trial court found that the malici ous prosecution claim "was not supported by the material facts necessary to establish the claim and further this claim was not supported by then existing law." In support of t hat finding, the trial court stated that "the plaintiffs offered only one witness at trial t o establish malice on the part of the defendant and that witness contradicted the plaintiff's claim." Finally, the trial court found that Bevis Construction "is entitled to attorney fe es in defending this claim." We conclude that the trial court's finding of entitlement is no t based on substantial, competent evidence and thus constitutes an abuse of discretion requiring reversal. Section 57.105 provides, in pertinent part: (1) Upon the court's initiative or motion of any party, the court shall award a reas onable attorney's fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:

1 We reach no conclusion regarding the merits of the possible interpretations of Londono or the trial court's ruling thereon.- 6 - (a) Was not supported by the material facts necessary to establish the claim or defense; or (b) Would not be supported by the application of then-existing law to those material facts. "A claim is 'supported by the mate rial facts' within the meanin g of the statute when 'the party possesses admissible evidence sufficien t to establish the fact if accepted by the finder of fact.' " Siegel v. Rowe, 71 So. 3d 2 05, 211 (Fla. 2d DCA 2011) (quoting Albritton v. Ferrera, 913 So. 2d 5, 8 n.1 (Fla. 1st DCA 2005)). In Connelly v. Old Bridge Village Co-Op, Inc., 915 So. 2d 652, 654 (Fla. 2d DCA 2005),

this court reversed an award of s ection 57.105 fees where the p laintiffs' declaratory action claim against defendants who were later dismissed was "a rguably supportable under the facts and law and certainly not frivolous." See also Peyton v. Horner, 920 So. 2d 180, 183-84 (Fla. 2d DCA 2006) (reversing judgment awarding section 57.105 fees where "[t]he issue was not so cut and dried that either the ass ociation or its attorney knew or should have known that it was not supported by the mate rial facts necessary to establish standing"). "A finding that a party is entitled to recover attorney's fees under section 57.105 must be based upon substantial, competent evidence prese nted at the hearing on attorney's fees or otherwise before the court and in the rec ord." Mason v. Highlands Cnty. Bd. of Cnty. Comm'rs, 817 So. 2d 922, 923 (Fla. 2d DCA 20 02). Section 57.105 must be applied with restraint to ensure that it serves its int ended purpose of discouraging baseless claims without casting "a chilling effect on use of the courts." Swan Landing Dev., LLC v. First Tenn. Bank Nat'l Ass'n, 97 So. 3d 326, 328 (Fla. 2d DCA 2012) (internal quotation marks omitted).- 7 - In an action for malicious prosecution the plaintiff must offer proof of six elements to establish a prima facie case: (1) an original judicial proceeding against the present plainti ff was commenced or continued; (2) the present defendant was the legal cause of the original proceeding; (3) the termination of the original proceeding constituted a bona fide termination of that proceeding in favor of the present plaintif f; (4) there was an absence of probable cause for the original proceeding; (5) there was malic e on the part of the present defendant; and (6) the plaintiff suffered damages as a result of the original proceeding. Olson v. Johnson, 961 So. 2d 356, 359 (Fla. 2d DCA 2007). In t his case, it is the fifth and sixth elements–malice and damages–which require discussion. "In an action for malicious prosecution it is not necessary for a plaintiff to prove actual malice; legal malice is sufficient and may be infe rred from, among other things, a lack of probable caus e, gross negligence, or great in difference to persons, property, or the rights of others." Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1357 (Fla. 1994). In this case, t he DeRosas presented evidence that Bevis Construction instituted a lien foreclosure action against the D eRosas based on an invalid lien and persisted with the action knowing that the lie n was invalid and had been released at the demand of the Department. The suit was ultimat ely terminated in favor of the DeRosas, but only after they brought the facts involving the release of lien to the

attention of the trial court. Further, the DeRosas presented e vidence that the contract was n ot between Bevis Construction, which filed the lawsuit, and the De Rosas; rather, it was between Mr. Bevis and the DeRosas. The DeRosas presented evide nce that Mr. Bevis was not licensed, that he clearly knew of his status, and that he had an arrangement to- 8 - pay Jessie Jones to obtain permits in an improper effort to avo id compliance with the

licensure laws.

We conclude that there was sufficient evidence to find a lack o f probable cause to bring suit and sufficient evidence to meet the require ment of legal malice. While Mr. Bevis disputed any intent to avoid compliance with th e licensure laws, 2 this created a dispute of fact to be resolved by the jury, not a lac k of material facts to support the claim. See Siegel, 71 So. 3d at 212 ("Where, as in this case, the losing party presents competent, substantial evidence in support of th e claims or defenses presented and the trial court det ermines the issues of fact adv ersely to the losing party based on conflicting evidence, sec tion 57.105(1) does not autho rize an award of attorney's fees against the attorney for the losing party and h is or her client."). The final element is that of damages. We first note that the t rial court's order does not contain a specific finding that the DeRosas fail ed to present evidence of damages. Were we to interpret the trial court's order as makin g such a finding, the record does not support it. "It is well established in Florida that where the allegations of a complaint show the invasion of a legal right, the plaintiff o n the basis thereof may recover at least nominal damages . . . ." Hutchison v. Tompkin s, 259 So. 2d 129, 132 (Fla. 1972); see also King v. Saucier, 356 So. 2d 930, 931 (Fla . 2d DCA 1978) ("[T]he evidence was such that a jury could have found an invasion of a ppellant's rights by

conversion which could serve as the basis for an award of nomin al damages."); Stoler v. Levinson, 394 So. 2d 462, 463 (Fla. 3d DCA 1981) (reversing dir ected verdict and

2 Mr. Bevis asserted that another licensed contractor, Jessie Jon es, was to oversee and supervise the work, but the DeRosas presented evide nce to the contrary.- 9 - remanding malicious prosecution and abuse of process claims for new trial, stating that although proof of business losses was somewhat vague, "other it ems of damages were sufficiently shown as to attorney fee costs, nominal damages an d punitive damages so as to send this case to the jury").

We further observe that the trial court allowed an amendment to the pleadings to permit a claim for punitive damages. The quantum of evidence necessary to support such an amendment is a further indicator that the ma licious prosecution claim was not without material fact support and was supported by then existing law. Similarly, the trial court denied Bevis Construction's motion for summary judgment, which challenged the DeRosas' claim of damages based on prior attorne ys' fees. While the trial court ultimately ruled against the DeRosas and excluded a ny evidence of prior fees as damages, the claim was nonethel ess arguably supportable unde r the facts and law. In conclusion, the record does not support the trial court's fi nding that the malicious prosecution claim was not supported by the material f acts necessary to establish the claim or by then existing law. The trial court a bused its discretion in granting the motion for attorneys' fees and costs pursuant to s ection 57.105. We therefore reverse the final judgment awarding fees and costs pu rsuant to section 57.105 against Ms. MacAlister.

Reversed.

MORRIS and BLACK, JJ., Concur.