HERBERT SEPNER, TRUSTEE, APPELLANT,
v.
VILLAGE OF ROYAL PALM BEACH, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, MILFRED MEYER, INDIVIDUALLY, AND BARNEY DITKOFF, INDIVIDUALLY, APPELLEES
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LETTS, Judge.
We reverse this cause on the authority of Whitten v. Progressive Casualty Insurance Co., 410 So. 2d 501 (Fla.1982) wherein our Supreme Court noted that entitlement to attorney’s fees under Section 57.105, Florida Statutes (1979) must spring from a “complete absence of a justiciable issue of either law or fact raised by the losing party.” (Id. 505) Here, we are not presented with a case involving both a complete absence of law or fact, but one with a question of standing as to this particular litigant. We note that standing was one of the problems presented in Whitten, supra and there can be no doubt but that there was originally a justiciable controversy as to this appellant’s standing. As Whitten, supra, noted, “not every party that prevails in a motion ... to dismiss for failure to state a cause of action ... is automatically entitled to attorney’s fees under Section 57.105.” Id. 505-506. Moreover, we cannot conclude that this cause was a sham.
REVERSED AND REMANDED.
GLICKSTEIN and WALDEN, JJ., concur.
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Schwartz v. W-K P'rs, 530 So. 2d 456 (Fla. 5th DCA 1988)…ch render the claim or the defense to be without justiciable issue in law or fact should not subject the losing party to attorney’s fees. See Klein v. Layne, Inc. of Florida, 453 So. 2d 203 (Fla. 4th DCA 1984); Sepner v. Village of Royal Palm Beach, 444 So. 2d 68 (Fla. 4th DCA 1984). See also Greater Clearwater Chamber of Commerce, Inc. v. Modem Graphic Arts, Inc., 464 So. 2d 594 (Fla. 2d DCA 1985). In Parrino v. Ayers, 469 So. 2d 837 (Fla. 5th DCA 1985), Ayers was awarded attorney’s fees under section 57.1…
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H.J.J., Inc. v. Party Prods., II, Inc., 738 So. 2d 515 (Fla. 3d DCA 1999)…point, Section 57.105(1) sanctions are inappropriate regardless of subsequent developments. See Schwartz v. W-K Partners, 530 So. 2d at 457; Klein v. Layne, Inc. of Florida, 453 So. 2d 203 (Fla. 4th DCA 1984); Sepner v. Village of Royal Palm Beach, 444 So. 2d 68 (Fla. 4th DCA 1984). Here, HJJ’s complaint involved justicia-ble issues of law or fact at its inception. The record indicates a clear connection between PPII and FDP, including a substantial transfer of assets, warranting the initiation of suit and…
Authorities Cited
- Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501 (Fla. 1982)