Sepner v. Village of Royal Palm Beach

LETTS, Judge.

We reverse this cause on the authority of Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982) wherein our Supreme Court noted that entitlement to attorney’s fees under Section 57.105, Florida Statutes (1979) must spring from a “complete absence of a justiciable issue of either law or fact raised by the losing party.” (Id. 505) Here, we are not presented with a case involving both a complete absence of law or fact, but one with a question of standing as to this particular litigant. We note that standing was one of the problems presented in Whitten, supra and there can be no doubt but that there was originally a justiciable controversy as to this appellant’s standing. As Whitten, supra, noted, “not every party that prevails in a motion ... to dismiss for failure to state a cause of action ... is automatically entitled to attorney’s fees under Section 57.105.” Id. 505-506. Moreover, we cannot conclude that this cause was a sham.

REVERSED AND REMANDED.

GLICKSTEIN and WALDEN, JJ., concur.