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Who’s the Prevailing Party? 3rd DCA Reminds Us That Argument of Counsel is Never Evidence

Uncategorized • Apr 12, 2018
post about Who’s the Prevailing Party? 3rd DCA Reminds Us That Argument of Counsel is Never Evidence

The Radosevich v. Bank of New York Mellon case, (Fla. 3rd DCA, April 4, 2018), opinion attached, reminds us that argument of counsel is not evidence. In this Miami appellate case, the 3rd DCA considered attorneys fees under 57.105 and whether or not one of the parties was the “prevailing party.” An appeal had been taken and then dismissed. There was an order on entitlement to attorneys fees at the trial court level “pending the outcome of the appeal.” The trial court held that the appellant was NOT entitled to attorneys fees at a non-evidentiary hearing. This was error. This opinion also reminds us that, other than a UMC, all hearings are evidentiary hearings, and you need witnesses and documents to provide evidence to the Court, from which it should make factual findings and draw conclusions of law.