Summary
finding the mere failure of party to state cause of action in its original or amended pleadings not sufficient, in and of itself, to support sanctions under section 57.105
Summary of this case from Virginia Inv. Fund v. NolanOpinion
No. 82-1092.
January 26, 1983. Rehearing Denied February 15, 1983.
Appeal from the Circuit Court, Broward County, Robert L. Andrews, J.
Steven D. Rubin of Weisman Douglas, P.A., Pompano Beach, for appellant.
Patrick L. Bailey of Sullivan, Ranaghan, Bailey Gleason, P.A., Pompano Beach, for appellee.
The award of attorney's fees to appellee pursuant to the provisions of section 57.105, Florida Statutes (1982) is hereby reversed. Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla. 1982). The mere failure of the appellant to state a cause of action in her original or amended pleadings was not sufficient, in and of itself, to support a finding that her claim was so lacking in merit as to justify the invocation of section 57.105.
We again caution trial courts in this district that before such an award may be made there must be a finding that the position advanced by the losing party is virtually frivolous, Whitten, at 505; and this finding must be predicated upon substantial competent evidence presented to the court at the hearing on attorney's fees or otherwise before the court and in the trial court record.
DELL and WALDEN, JJ., concur.