Sepner v. Village of Royal Palm Beach

District Court of Appeal of Florida

Sepner v. Village of Royal Palm Beach

444 So. 2d 68, 1984 Fla. App. LEXIS 11472

CourtDistrict Court of Appeal of Florida

DecidedJanuary 25, 1984

DocketNo. 82-2094

StatusPublished

Cited by2 cases

This text of 444 So. 2d 68 (Sepner v. Village of Royal Palm Beach) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Sepner v. Village of Royal Palm Beach, 444 So. 2d 68, 1984 Fla. App. LEXIS 11472 (Fla. Ct. App. 1984).

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Opinion

LETTS, Judge.

We reverse this cause on the authority of Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982) wherein our Supreme Court noted that entitlement to attorney’s fees under Section 57.105, Florida Statutes (1979) must spring from a “complete absence of a justiciable issue of either law or fact raised by the losing party.” (Id. 505) Here, we are not presented with a case involving both a complete absence of law or fact, but one with a question of standing as to this particular litigant. We note that standing was one of the problems presented in Whitten, supra and there can be no doubt but that there was originally a justiciable controversy as to this appellant’s standing. As Whitten, supra, noted, “not every party that prevails in a motion ... to dismiss for failure to state a cause of action ... is automatically entitled to attorney’s fees under Section 57.105.” Id. 505-506. Moreover, we cannot conclude that this cause was a sham.

REVERSED AND REMANDED.

GLICKSTEIN and WALDEN, JJ., concur.

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LETTS, Judge.

We reverse this cause on the authority of Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982) wherein our Supreme Court noted that entitlement to attorney’s fees under Section 57.105, Florida Statutes (1979) must spring from a “complete absence of a justiciable issue of either law or fact raised by the losing party.” (Id. 505) Here, we are not presented with a case involving both a complete absence of law or fact, but one with a question of standing as to this particular litigant. We note that standing was one of the problems presented in Whitten, supra and there can be no doubt but that there was originally a justiciable controversy as to this appellant’s standing. As Whitten, supra, noted, “not every party that prevails in a motion ... to dismiss for failure to state a cause of action ... is automatically entitled to attorney’s fees under Section 57.105.” Id. 505-506. Moreover, we cannot conclude that this cause was a sham.

REVERSED AND REMANDED.

GLICKSTEIN and WALDEN, JJ., concur.

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444 So. 2d 68, 1984 Fla. App. LEXIS 11472, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sepner-v-village-of-royal-palm-beach-fladistctapp-1984.

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