Hirtreiter v. Donovan , 594 So. 2d 342 ( 1992 )

594 So. 2d 342 (1992)

Arthur B. HIRTREITER and Marion Hirtreiter, Appellants,
v.
Shelly J. DONOVAN, William Johansen, and Edward J. Ludden, Appellees.

Nos. 90-02509, 91-00495.

District Court of Appeal of Florida, Second District.

March 4, 1992.

Louis S. St. Laurent II of St. Laurent & St. Laurent, P.A., Miami, for appellants.

Brian D. Elias of Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A., Miami, for appellees Donovan and Johansen.

Charles W. Pittman and Harold D. Oehler of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee Ludden.

PER CURIAM.

The plaintiffs, who were parties to an arbitration proceeding, appeal from two orders of the trial court granting attorney's fees to defendants pursuant to section 57.105, Florida Statutes (1989).

We reverse as to defendant Donovan because the order "contains no finding ... regarding a complete absence of a justiciable issue." Harrison v. Grubb, 567 So. 2d 56, 57 (Fla. 2d DCA 1990) (quoting Whitten v. Progressive Casualty Ins. Co., 410 So. 2d 501, 506 (Fla. 1982)). Attorney's fees may be imposed under that section in favor of that defendant upon remand only if the necessary finding is made. Harrison, 567 So.2d at 57.

We reverse as to defendants Ludden and Johansen. We do not conclude there was such a complete absence of a justiciable issue as to those defendants simply because the result of prior arbitration of plaintiffs' claim against Donovan was adverse to plaintiffs. They were not parties to the arbitration proceeding, and we cannot conclude that plaintiffs' attempt to seek a judicial determination of their liability was frivolous, notwithstanding the availability to them of the defense of collateral estoppel arising from the result reached in arbitration.

LEHAN, A.C.J., and FRANK and PATTERSON, JJ., concur.