GLICKMAN V. BRAGANO

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Third District Court of Appeal State of Florida, January Term, A.D. 2008 Opinion filed March 5, 2008. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D06-3197 Lower Tribunal No. 03-5967 ________________ Fred E. Glickman, et al., Appellants, vs. Frank Bragano, et al., Appellees. An Appeal from the Circuit Court for Miami-Dade County, Victoria S. Sigler, Judge. Fred E. Glickman, for appellants. R. Patrick Mirk (Tampa), for appellees. Before GERSTEN, C.J., and SUAREZ, and ROTHENBERG, JJ. PER CURIAM. Fred E. Glickman, Fred E. Glickman, P.A., and Marc Treco ( appellants ) appeal an order denying their motion for attorney s fees and costs. We reverse and remand for further consideration. Frank Bragano and Andrew Lynch ( appellees ) filed a two-count complaint against appellants. Count I alleged a claim for civil theft and count II for fraudulent transfer. On appellants motion, the trial court dismissed the civil theft claim with prejudice, and retained jurisdiction to consider attorney s fees and costs. The trial court dismissed count II without prejudice, allowing appellees to amend the complaint. Ultimately, the trial court dismissed count II with prejudice for lack of prosecution. Thereafter, the trial court denied appellants motion for attorney s fees and costs reasoning that the dismissal for lack of prosecution did not establish appellants status as prevailing party. However, the trial court did not dismiss count I, the civil theft claim, for lack of prosecution. Instead, the court was dismissed this claim with prejudice on appellants motion, and the trial court specifically retained jurisdiction to later address the issue of attorney s fees and costs. Therefore, because the trial court has not yet determined whether attorney s fees and costs are appropriate on count I, we reverse and remand for the trial court to consider appellants entitlement to attorney s fees and costs on the civil theft claim. Reversed and remanded. 2

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