               NOT FINAL UNTIL TIME EXPIRES 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.

Appeal 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 liable for

attorneys' fees and costs in the amount of $75,771.40. Ms. MacAlister, 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
of a reasonable attorneys' fee amount. We conclude that the trial 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 protracted

litigation history. It began with a construction contract entered 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 the contractor. Mr. Bevis, however, was not a licensed

contractor, and when disagreements arose over the construction contract, he filed a

claim of lien against the DeRosas' property in the name of his corporation, Bevis

Construction. Bevis Construction then commenced suit in January 2005 against the

DeRosas in county court for breach of contract and lien foreclosure.

              During the pendency of the litigation, the Department of Business and

Professional Regulation began investigating Mr. Bevis for unlicensed contracting. Mr.

Bevis advised the Department that he was not pursuing the DeRosas 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 and desist order for unlicensed contracting and advised

Mr. Bevis that the invalid lien must be released or he would face 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 the DeRosas in county

court. The lien was later released, but the release of lien was not filed in the county

court case. Apparently unaware of the developments with the Department 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 review of the Department's




                                            -2-
administrative file, a new trial was ordered and Bevis Construction was given thirty days

to file an amended complaint against the DeRosas. Bevis Construction chose not to file

an amended complaint, the case was dismissed, and the court reserved jurisdiction as

to attorneys' fees. The county court found that the DeRosas were 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 civil proceedings against both Mr. Bevis and

Bevis Construction in a multicount complaint filed in circuit court. Relevant to this

appeal is the count asserting malicious prosecution arising from 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 contract 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 later 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 malicious

prosecution claim, Bevis Construction argued that the DeRosas were precluded as a

matter of law from seeking attorneys' fees from the county court case. Bevis

Construction argued that the DeRosas' claim for fees was presented to and considered

by the county court, making the claim for the same damages in the 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.




                                            -3-
              At trial Mrs. DeRosa testified regarding the contract, the claim 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 finding subcontractors to work

for them because of the problems with Mr. Bevis, being called deadbeats 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 Department 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 four

witnesses who they asserted had knowledge of the personal actions and statements of

Mr. Bevis which caused the DeRosas stress and harmed their reputation. 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 argument for section 57.105

fees.

              On the third day of trial, the court took up the matter of whether 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 for both sides argued

different interpretations of Londono. Bevis Construction's counsel argued that Londono

stands for the proposition that 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,




                                            -4-
concluding that the fees could not be pursued in the instant action because they were

considered in the county court matter.1

              At the conclusion of the trial, Bevis Construction moved for a directed

verdict on the malicious prosecution claim. The trial court denied 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 that 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 malicious 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 that finding, the trial court

stated that "the plaintiffs offered only one witness at trial to 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 fees in defending this claim."

We conclude that the trial court's finding of entitlement is not 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 reasonable 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.


                                             -5-
                    (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 material facts' within the meaning of the

statute when 'the party possesses admissible evidence sufficient to establish the fact if

accepted by the finder of fact.' " Siegel v. Rowe, 71 So. 3d 205, 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 section 57.105 fees where the plaintiffs' declaratory

action claim against defendants who were later dismissed was "arguably 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 association or its attorney

knew or should have known that it was not supported by the material 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 presented at the hearing

on attorney's fees or otherwise before the court and in the record." Mason v. Highlands

Cnty. Bd. of Cnty. Comm'rs, 817 So. 2d 922, 923 (Fla. 2d DCA 2002). Section 57.105

must be applied with restraint to ensure that it serves its intended 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).




                                            -6-
               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 plaintiff
               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 plaintiff;
               (4) there was an absence of probable cause for the original
               proceeding; (5) there was malice 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 this 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 inferred from, among other

things, a lack of probable cause, gross negligence, or great indifference 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, the DeRosas presented evidence that Bevis

Construction instituted a lien foreclosure action against the DeRosas based on an

invalid lien and persisted with the action knowing that the lien was invalid and had been

released at the demand of the Department. The suit was ultimately 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 evidence that the contract was not

between Bevis Construction, which filed the lawsuit, and the DeRosas; rather, it was

between Mr. Bevis and the DeRosas. The DeRosas presented evidence that Mr. Bevis

was not licensed, that he clearly knew of his status, and that he had an arrangement to




                                             -7-
pay Jessie Jones to obtain permits in an improper effort to avoid compliance with the

licensure laws.

              We conclude that there was sufficient evidence to find a lack of probable

cause to bring suit and sufficient evidence to meet the requirement of legal malice.

While Mr. Bevis disputed any intent to avoid compliance with the licensure laws,2 this

created a dispute of fact to be resolved by the jury, not a lack 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 the claims or defenses

presented and the trial court determines the issues of fact adversely to the losing party

based on conflicting evidence, section 57.105(1) does not authorize an award of

attorney's fees against the attorney for the losing party and his or her client.").

              The final element is that of damages. We first note that the trial court's

order does not contain a specific finding that the DeRosas failed to present evidence of

damages. Were we to interpret the trial court's order as making 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 on the basis thereof may

recover at least nominal damages . . . ." Hutchison v. Tompkins, 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 appellant's rights by

conversion which could serve as the basis for an award of nominal damages."); Stoler v.

Levinson, 394 So. 2d 462, 463 (Fla. 3d DCA 1981) (reversing directed verdict and




              2
             Mr. Bevis asserted that another licensed contractor, Jessie Jones, was to
oversee and supervise the work, but the DeRosas presented evidence to the contrary.


                                             -8-
remanding malicious prosecution and abuse of process claims for new trial, stating that

although proof of business losses was somewhat vague, "other items of damages were

sufficiently shown as to attorney fee costs, nominal damages and 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 malicious 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 attorneys' fees. While the

trial court ultimately ruled against the DeRosas and excluded any evidence of prior fees

as damages, the claim was nonetheless arguably supportable under the facts and law.

              In conclusion, the record does not support the trial court's finding that the

malicious prosecution claim was not supported by the material facts necessary to

establish the claim or by then existing law. The trial court abused its discretion in

granting the motion for attorneys' fees and costs pursuant to section 57.105. We

therefore reverse the final judgment awarding fees and costs pursuant to section 57.105

against Ms. MacAlister.

              Reversed.



MORRIS and BLACK, JJ., Concur.




                                            -9-
