Fireman's Fund Insurance Companies v. Rojas , 447 So. 2d 1023 ( 1984 )

447 So. 2d 1023 (1984)

FIREMAN'S FUND INSURANCE COMPANIES, Appellant,
v.
Ada ROJAS, Appellee.

No. 83-2310.

District Court of Appeal of Florida, Third District.

April 3, 1984.

Fowler, White, Burnett, Hurley, Banick & Strickroot and Kathleen M. Williams and Michael Murphy, Miami, for appellant.

Carlos B. Fernandez, Miami, for appellee.

Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.

SCHWARTZ, Chief Judge.

After our reversal and remand in Fireman's Fund Ins. Co. v. Rojas, 409 So. 2d 1166 (Fla.3d DCA 1982), the plaintiff took a voluntary dismissal and the trial court thereupon awarded attorney's fees to the defendant under Section 57.105, Florida Statutes (1981). The order is reversed because the record does not demonstrate, as the statute requires, that "there was a complete absence of a justiciable issue of law or fact raised by the losing party." [e.s.] See Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501 (Fla. 1982). The prior appellate proceeding alone mandates the determination that the plaintiff's position was not an entirely frivolous one. Hernandez v. Leiva, 391 So. 2d 292 (Fla.3d DCA 1980).

Reversed.