The Lake Hamilton Lakeshore Owners Association, Inc. v. Neidlinger

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT THE LAKE HAMILTON LAKESHORE OWNERS ASSOCIATION, INC., a Florida not-for-profit corporation, on behalf of its Members, Appellant, v. WAYNE L. NEIDLINGER, d/b/a Captain Fred's Airboat Nature Tours; and LAKE HAMILTON COMMERCE & STORAGE CENTER, INC., a Florida corporation, Appellees. Opinion filed February 24, 2016. Appeal from the Circuit Court for Polk County; John M. Radabaugh, Judge. Douglas A. Lockwood, III, and Alexander M. Landback of Straughn & Turner, P.A., Winter Haven, for Appellant. Daniel P. Rooney of the Law Office of Allan L. Casey, Winter Haven, for Appellee Wayne L. Neidlinger. No appearance for Appellee Lake Hamilton Commerce & Storage Center, Inc. LaROSE, Judge. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 2D15-1402 The Lake Hamilton Lakeshore Owners Association (the Association) sued Wayne Neidlinger, d/b/a Captain Fred's Airboat Nature Tours (Mr. Neidlinger), alleging that his airboat activities on Lake Hamilton constituted a nuisance. The trial court dismissed the complaint with prejudice, finding that state law preempted the claim. The trial court also awarded Mr. Neidlinger attorney's fees pursuant to section 57.105, Florida Statutes (2014). The Association appealed the order dismissing the complaint and, in this case, separately appealed the order granting attorney's fees. We reversed the order of dismissal in Lake Hamilton Lakeshore Owners Assoc. v. Neidlinger, No. 2D14-5611, 2015 WL 9487589 (Fla. 2d DCA Dec. 30, 2015). Consequently, we must set aside the order granting attorney's fees. See Fieldstone v. Chung, 416 So. 2d 11, 12 (Fla. 3d DCA 1982); Huie v. Dent & Cook, P.A., 635 So. 2d 111 (Fla. 2d DCA 1994) (holding that suit that is not frivolous at its inception does not justify award of attorney's fees as sanctions). Reversed. CASANUEVA and LUCAS, JJ., Concur. -2-

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