Mahaney v. Sumter Electric Cooperative, Inc.

732 So. 2d 373, 1999 Fla. App. LEXIS 1605, 1999 WL 76272

Opinion

GOSHORN, J.

Glenda Mahaney appeals the order dismissing certain parties from the suit and clarifying the status of the pleadings. We affirm the order in its entirety, but must remand for the trial court to make appropriate written findings to support its earlier award of section 57.105 attorney’s fees. That issue is controlled by our opinion in Schwartz v. W-K Partners, 530 So.2d 456, 458 (Fla. 5th DCA 1988), wherein we held:

In entering an award under section 57.105, the trial court must make a finding that there was a complete absence of a justiciable issue raised by the losing party. See Fox v. Loeffler, 434 So.2d 2 (Fla. 4th DCA 1983); Apgar and Markham Construction of Florida, Inc. v. MacAsphalt, Inc., 424 So.2d 41 (Fla. 2d DCA 1982). Since the final judgment does not contain such a finding, we reverse the award of attorney’s fees and remand to the trial court with directions to make an appropriate finding based on the record as to whether there was any justiciable issue of either law or fact raised by Schwartz in this case. Should the trial court expressly find that no such issue existed, it may reassess the same attorney’s fees without the need of taking further evidence.

Accordingly, we remand for further proceedings as mandated by Schwartz.

AFFIRMED in part; REVERSED in part; REMANDED.

DAUKSCH, and HARRIS, JJ., concur.