Strothman v. Henderson Mental Health Ctr., Inc.

425 So. 2d 1185 (1983)

Clara STROTHMAN, Appellant,
v.
HENDERSON MENTAL HEALTH CENTER, INC., a/K/a Henderson Mental Health Clinic, a Florida Non-Profit Organization, Appellee.

No. 82-1092.

District Court of Appeal of Florida, Fourth District.

January 26, 1983. Rehearing Denied February 15, 1983.

Steven D. Rubin of Weisman & Douglas, P.A., Pompano Beach, for appellant.

Patrick L. Bailey of Sullivan, Ranaghan, Bailey & Gleason, P.A., Pompano Beach, for appellee.

ANSTEAD, Judge.

The award of attorney's fees to appellee pursuant to the provisions of section 57.105, Florida Statutes (1982) is hereby reversed. Whitten v. Progressive Casualty Insurance Co., 410 So. 2d 501 (Fla. 1982). The mere failure of the appellant to state a cause of action in her original or amended pleadings was not sufficient, in and of itself, to support a finding that her claim was so lacking in merit as to justify the invocation of section 57.105.

We again caution trial courts in this district that before such an award may be made there must be a finding that the position advanced by the losing party is virtually frivolous, Whitten, at 505; and this finding must be predicated upon substantial competent evidence presented to the court at the hearing on attorney's fees or otherwise before the court and in the trial court record.

DELL and WALDEN, JJ., concur.