St. Regis Paper Co. v. Williams

475 So. 2d 258, 10 Fla. L. Weekly 1926, 1985 Fla. App. LEXIS 15477

Opinion

RYDER, Chief Judge.

St. Regis appeals a trial court’s order which granted Williams’ motion for summary final judgment and motion for attorney’s fees under section 57.105, Florida Statutes (1983). We affirm the portion of the order which granted summary judgment, but reverse the award of attorney’s fees.

Under section 57.105, an award of attorney’s fees is proper only where the action is so clearly devoid of merit both in law and fact as to be completely untenable. Wall v. Department of Transportation, 455 So.2d 1138 (Fla. 2d DCA 1984). In this case, appellant’s claim initially had merit and, therefore, was not devoid of arguable substance. Because appellant’s complaint was not frivolous, we must reverse the award of attorney’s fees to the appellee. But see Klein v. Layne, Inc. of Florida, 453 So.2d 203 (Fla. 4th DCA 1984).

LEHAN and HALL, JJ., concur.