Summit Institute in Israel, Ltd. v. Kappitt

District Court of Appeal of Florida

Summit Institute in Israel, Ltd. v. Kappitt

528 So. 2d 486, 13 Fla. L. Weekly 1613, 1988 Fla. App. LEXIS 2932, 1988 WL 70760

CourtDistrict Court of Appeal of Florida

DecidedJuly 12, 1988

DocketNo. 87-1819

StatusPublished

This text of 528 So. 2d 486 (Summit Institute in Israel, Ltd. v. Kappitt) 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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Summit Institute in Israel, Ltd. v. Kappitt, 528 So. 2d 486, 13 Fla. L. Weekly 1613, 1988 Fla. App. LEXIS 2932, 1988 WL 70760 (Fla. Ct. App. 1988).

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Opinion

PER CURIAM.

This appeal is brought from an order of the trial court awarding fees to Mrs. Kap-pitt pursuant to section 57.105, Florida Statutes (1987), after dismissal of Summit’s complaint without prejudice.

The plaintiff-appellant is an educational institution for the physically and mentally handicapped. The defendant-appellee is the mother of a physically-handicapped student, over the age of eighteen, who is enrolled at the appellant-institution. In an action instituted against the student’s father, the mother was joined as a defendant on the tenable theory that she has a paren[487]*487tal obligation to care for the physically-handicapped child who is unable to take care of himself. See Fincham v. Levin, 155 So.2d 883 (Fla. 1st DCA 1963).

An award of fees pursuant to section 57.105 requires a showing that a justiciable issue is so absent as to make the action frivolous. See T.I.E. Communications, Inc. v. Toyota Motors Center, Inc., 391 So.2d 697 (Fla. 3d DCA 1980). On examination of the sparse record it cannot be concluded that the action was so clearly devoid of merit on both the law and the facts as to be completely untenable. Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA), rev. denied, 392 So.2d 1373 (Fla.1980).

The order awarding fees is reversed.

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PER CURIAM.

This appeal is brought from an order of the trial court awarding fees to Mrs. Kap-pitt pursuant to section 57.105, Florida Statutes (1987), after dismissal of Summit’s complaint without prejudice.

The plaintiff-appellant is an educational institution for the physically and mentally handicapped. The defendant-appellee is the mother of a physically-handicapped student, over the age of eighteen, who is enrolled at the appellant-institution. In an action instituted against the student’s father, the mother was joined as a defendant on the tenable theory that she has a paren[487]*487tal obligation to care for the physically-handicapped child who is unable to take care of himself. See Fincham v. Levin, 155 So.2d 883 (Fla. 1st DCA 1963).

An award of fees pursuant to section 57.105 requires a showing that a justiciable issue is so absent as to make the action frivolous. See T.I.E. Communications, Inc. v. Toyota Motors Center, Inc., 391 So.2d 697 (Fla. 3d DCA 1980). On examination of the sparse record it cannot be concluded that the action was so clearly devoid of merit on both the law and the facts as to be completely untenable. Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA), rev. denied, 392 So.2d 1373 (Fla.1980).

The order awarding fees is reversed.

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528 So. 2d 486, 13 Fla. L. Weekly 1613, 1988 Fla. App. LEXIS 2932, 1988 WL 70760, Counsel Stack Legal Research, https://law.counselstack.com/opinion/summit-institute-in-israel-ltd-v-kappitt-fladistctapp-1988.

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