Opinion
Case No. 96-1721
Opinion filed January 31, 1997. Rehearing Denied July 10, 1997.
An appeal from the Circuit Court for Calhoun County. Clinton E. Foster, Judge.
Bill A. Corbin, Blountstown, for Appellant.
Kimberly Fitzpatrick Pell, Panama City, for Appellee.
Appellant seeks review of two orders of the trial court. The first order granted summary judgment in favor of appellee with respect to the malicious prosecution action brought by appellant. The second order awarded a prevailing party attorney's fee to appellee pursuant to section 57.105, Florida Statutes. The statute authorizes an award of attorney's fees to the prevailing party when the trial court finds the losing party has asserted a frivolous claim. We affirm the order granting summary judgment in favor of appellee without further comment. However, we reverse the order awarding an attorney's fee to appellee as the prevailing party. A review of the record does not establish that "there was a complete absence of a justiciable issue of either law or fact raised by the losing party." § 57.105, Florida Statutes (1993);Muckenfuss v. Deltona Corporation, Inc., 508 So.2d 340, 341 (Fla. 1987); Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla. 1982).
Accordingly, this cause is affirmed with respect to the first issue, and is reversed with respect to the second issue.
JOANOS, WOLF and VAN NORTWICK, JJ., CONCUR.