Opinion
No. 83-1576.
August 8, 1984. Rehearing Denied September 10, 1984.
Appeal from Circuit Court, Palm Beach County; W.C. Williams, III, Judge.
Kenneth Hemmerle II and Lynn H. Hemmerle, Fort Lauderdale, pro se appellants.
John A. Gentry, III, of Law Offices of John A. Gentry, III, P.A., West Palm Beach, for appellee-MGB Corp.
We affirm that portion of the trial court's order which denied the defendants'/appellees' motion to quash execution and vacate a final judgment. We reverse, however, the award of attorney's fees, granted pursuant to section 57.105, Florida Statutes (1983). The record demonstrates that the proceeding below cannot be characterized as one in which there was "a total or absolute lack of a justiciable issue, which is tantamount to a finding that the action [was] frivolous." Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501, 505 (Fla. 1982) (quoting Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980)).
Accordingly, the order on appeal is affirmed in part and reversed in part.
GLICKSTEIN, HURLEY and WALDEN, JJ., concur.