Opinion
No. 80-2099.
June 5, 1981.
Appeal from the Circuit Court, Polk County, J. Tim Strickland, J.
Sherwood L. Stokes, Haines City, for appellants.
Thomas C. Floyd of Wheeler, Traviss Floyd, Winter Haven, for appellees.
Appellants maintain that the trial court erred when it denied their motion for a temporary injunction, refused to reform certain deeds, and granted appellees' motion for attorney fees. We find appellants' first and second contentions unpersuasive. We agree, however, that the award of attorney fees under section 57.105, Florida Statutes (1979), was improper.
Section 57.105 requires that, in a civil action, attorney fees be awarded to the prevailing party if the court determines that there was "a complete absence of a justiciable issue" raised by the opposing party. An award of fees under that section is proper only where "the action is so clearly devoid of merit both on the facts and the law as to be completely untenable." Allen v. Estate of Dutton, 384 So.2d 171, 175 (Fla. 5th DCA 1980). Appellants' cause of action in the instant case does not fall within this category.
We reverse the award of attorney fees and remand the case for the entry of an amended final judgment consistent with this opinion.
RYDER and DANAHY, JJ., concur.