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In Stagl, the complaint had been dismissed three times for failure to state a cause of action, but the record on appeal did not support the trial court's finding that there was a complete absence of a justiciable issue of law or fact. Id.[3] A finding that a party is entitled to recover attorney's fees under section 57.105 must be based upon substantial, competent evidence presented at the hearing on attorney's fees or otherwise before the court and in the record.
Summary of this case from Mason v. Highlands County BoardOpinion
Case No. 2D01-1385
Opinion filed February 13, 2002.
Appeal from the Circuit Court for Hillsborough County; Vivian C. Maye, Judge.
Kevin A. Stagl, pro se.
Andrew P. Rock of Kingsford Rock, P.A., Maitland, for Appellee.
Appellant, Kevin A. Stagl, challenges the trial court's order awarding appellee, James E. Bridgers, attorney's fees pursuant to section 57.105, Florida Statutes (1997). We reverse.
An award of attorney's fees pursuant to section 57.105 is appropriate only when the action is "so clearly devoid of merit both on the facts and the law as to be completely untenable." Brinson v. Creative Aluminum Prods., 519 So.2d 59, 60 (Fla. 2d DCA 1988).
Here, Stagl's complaint was dismissed three times for failure to state a cause of action. The last such dismissal was with prejudice. However, merely failing to state a cause of action is not sufficient, in and of itself, to support a finding that the claim was so lacking in merit as to justify an award of attorney's fees pursuant to section 57.105. See Strothman v. Henderson Mental Health Ctr., Inc., 425 So.2d 1185 (Fla. 4th DCA 1983). The record before us does not support the trial court's finding that there was a complete absence of a justiciable issue of fact or law.
Accordingly, we reverse that portion of the order which awards attorney's fees in the amount of $34,365.50. We, however, affirm those portions of the order which award previous appellate costs in the amount of $211.35 pursuant to Florida Rule of Appellate Procedure 9.400 and court costs in the amount of $2,810.75 pursuant to Florida Rule of Civil Procedure 1.420.
Reversed in part and affirmed in part.
BLUE, C.J., and COVINGTON, J., Concur.