IN THE TENTH JUDICIAL CIRCUIT COURT FOR HARDEE,
HIGHLANDS AND POLK COUNTY, FLORIDA

County Case No.: 99-CC11-1293

Appeal No.: CC-1

HUNTINGTON ROOFING, INC.,

Defendant/Appellant,

vs.

RICHARD SCHMIDT, d/b/a SMITTY'S
PORTABLE WELDING & CONSTRUCTION
Plaintiff/Appellee.

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OPINION OF THE COURT

This is an appeal from the county court of Polk County, Judge Michael E. Raiden presiding. In the proceedings below, Huntington Roofing, Inc. (Huntington) brought an action in replevin for the return of a roofing kettle, and for attorney fees under section 57.105 Florida Statutes (2000). Schmidt filed a counterclaim for treble damages but failed to petition the trial court for compensatory damages. The trial court granted final summary judgement on the counter claim and Huntington dismissed the replevin action. Huntington appeals the trial court=s order denying attorney fees pursuant to section 57.105. The parties presented oral arguments in this cause on December 19, 2000. This court has jurisdiction. Fla. R. App. P. 9.030. The ruling of the county court is affirmed.

I.

Huntington presented a roofing kettle to Schmidt for a repair estimate. The parties settled on a price for repairs. Upon completion of the repair work, Schmidt demanded payment far in excess of the amount agreed upon. Huntington tendered a check for the repairs, but then stopped payment on the check. However, the face of the check shows that it was returned for insufficient funds. (R. at 44)

At the hearing for attorney fees, Huntington argued that the counterclaim was frivolous because Schmidt failed to state a claim for compensation on the returned check, and failed to amend the complaint. Further, an action for treble damages can be awarded only as a sanction in an award for compensatory damages. Because Schmidt failed to state a claim for compensatory damages, the counterclaim lacked any factual or legal merit.

Schmidt argued the fact that the check was returned for insufficient funds created a justiciable issue whether the check was tendered with the intent to defraud. The trial judge agreed. He reasoned that the record contained evidence of a worthless check, and established the basis for a recoverable debt under section 68.065 Florida Statutes (2000). He also noted that the language of the order of final summary judgement, issued by a different trial judge, suggests the possibility that Schmidt could bring another action to recover the amount of the check. In denying the motion, he concluded that although the pleadings were poorly drafted, they do not amount to a frivolous lawsuit.

II.

The issue of entitlement to attorney fees pursuant to section 57.105 is a question of law subject to review de novo. Gibbs Construction, Co. v. S. L. Page Corp., 755 So. 2d 787 (Fla. 2d 2000).

III.

The only issue before this court is whether Huntington has established entitlement to attorney fees under section 57.105. While Huntington correctly states that a claim for treble damages under section 68.065 is not cognizable in the absence of a claim for compensation, the failure to prove compensatory or actual damages does not preclude an award of punitive damages if the fact finder finds a breach of duty by the defendant. 17 Fla. Jur. 2d ' 118.

The record shows that the check was worthless. As the trial judge stated, a worthless check establishes the basis for a Apotentially recoverable debt even in the absence of a statutory entitlement to punitive damages . . . .@ (V. 3, T. at 14) Therefore, there could be no finding that the counterclaim lacked any justiciable issue of law and fact.

Accordingly, it is ORDERED that the judgment of the trial court is AFFIRMED.

ORDERED March 2000.

Charles B. Curry

Chief Judge