CITY OF OAKLAND PARK, GLENN J. DUFEK, MARY LAVERATT, FLORENCE LOSS, ROBERT PISANO AND H. KENNETH POWELL, AS AND CONSTITUTING THE CITY COUNCIL OF SAID CITY; AND H. LAYTON MAINGUY, AS MAYOR OF SAID CITY, APPELLANTS,
v.
THEODORE H. BEST AND WILLIAM L. NASH, APPELLEES
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The Fourth District affirmed the trial court's judgment in favor of former city councilmen challenging pension benefit termination but reversed the award of attorney's fees because the city's position was not frivolous or wholly devoid of arguable substance.
A municipality's position challenging pension benefit termination was not frivolous or wholly devoid of arguable substance, precluding an award of attorney's fees under section 57.105.
[1] A party's position in litigation is not frivolous or wholly devoid of arguable substance merely because it is unsuccessful, and attorney's fees under section 57.105, Flor…
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Join FLexlaw to unlock all legal intelligenceTwo former city councilmen challenged the City of Oakland Park's attempt through various ordinances to terminate their receipt of pension benefits. Th…
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PER CURIAM.
The City of Oakland Park appeals a declaratory final judgment and a judgment taxing costs and fees against it. These judgments arose from an action in which two former city councilmen challenged the City’s attempt, through various ordinances, to terminate their receipt of pension benefits. The trial court, after taking testimony and hearing argument from counsel, found in favor of the former councilmen on all points.
Our review of the record leads us to conclude that the City has not demonstrated the existence of error in any material respect, save one. The lower court, pursuant to section 57.105, Florida Statutes (1983), assessed attorney’s fees against the City on the theory that it failed to raise a justiciable issue of either law or fact. After reviewing the record as a whole, we believe it cannot be said that the position taken by the City was frivolous or wholly devoid of arguable substance. See Whit-ten v. Progressive Casualty Co., 410 So. 2d 501 (Fla.1982); Wall v. Department of Transportation, 455 So. 2d 1138 (Fla. 2d DCA 1984). Consequently, we reverse the award of attorney’s fees under section 57.-105; otherwise, the judgment is affirmed.
AFFIRMED IN PART; REVERSED IN PART.
DOWNEY and HURLEY, JJ., and GOLDMAN, MURRAY, Associate Judge, concur.
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- Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501 (Fla. 1982)
- Leolus L. Wall v. Dep't OF Transp. OF the State OF Fla., 455 So. 2d 1138 (Fla. 2d DCA 1984)