Fox v. Loeffler , 434 So. 2d 2 ( 1983 )

434 So. 2d 2 (1983)

William L. FOX, Appellant,
v.
Rita M. LOEFFLER and Florence E. Fox, Appellees.

No. 82-1286.

District Court of Appeal of Florida, Fourth District.

May 25, 1983. Rehearing Denied July 20, 1983.

Martin L. Roth of Law Offices of Haber & Roth, Miami, for appellant.

Thomas F. Ryan of Ryan & Ryan, North Palm Beach, for appellees.

PER CURIAM.

We affirm the appealed order except for the portion awarding attorney fees to appellees, which fee award we reverse.

The appealed order provided:

"2. The Motion for Attorneys Fees for Loeffler and Fox is hereby granted for costs and attorney's fees which have been incurred since June 1, 1978, that being the time when Florida Statute 57.105 became law."

It, as shown, contained no finding by the circuit court regarding a complete absence of justiciable issue. We reverse upon authority of Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501 (Fla. 1982) and Strothman v. Henderson Mental Health Center, Inc., 425 So. 2d 1185 (Fla. 4th DCA, 1983).

Affirmed in part; reversed in part.

DOWNEY, DELL and WALDEN, JJ., concur.

UPON MOTION FOR REHEARING

WALDEN, Judge.

Appellees ask that the cause be remanded to the trial court with directions to make an appropriate finding based on the record as to whether or not there was a complete absence of any justiciable issues, and to then assess or deny attorney fees based on that finding as was done in City of Miami Beach v. Town of Bay Harbor, 380 So. 2d 1112 (Fla. 3d DCA 1980). We agree and modify our original opinion so as to remand with such instructions.

Having modified our initial opinion, the motion for rehearing is

DENIED.

DOWNEY and DELL, JJ., concur.