Opinion
No. 89-559.
February 6, 1990. Rehearing Denied March 30, 1990.
An Appeal from the Circuit Court for Dade County; David M. Gersten, Judge.
Sinclair, Louis, Siegel, Heath, Nussbaum Zavertnik and Paul Louis and Evan J. Langbein, Miami, for appellants.
Preddy, Kutner, Hardy, Rubinoff, Brown Thompson and Susan S. Lerner, Miami, for appellee.
Before BASKIN, FERGUSON and COPE, JJ.
Beverly and William Mixson appeal the denial of their motion to recover attorney's fees under section 57.105, Florida Statutes (1987). Their motion followed the voluntary dismissal of a suit initiated against them by Charles G. Hyatt for abuse of process and intentional infliction of emotional distress. We affirm.
A court shall award attorney's fees pursuant to section 57.105 when it is satisfied "that there was a complete absence of a justiciable issue of law or fact raised by the complaint." If the court finds that the complaint presented a justiciable issue of law or fact, it should not assess attorney's fees. Whitten v. Progressive Casualty Ins. Co., 410 So.2d 501 (Fla. 1982). Here, the trial court found that the complaint presented a justiciable issue. After reviewing the record, we are unable to say that the claims were entirely devoid of arguable substance or that the trial court's finding is not supported by the record.
Affirmed.