Opinion
Case No. 97-578.
Opinion filed February 18, 1998. JANUARY TERM, A.D. 1998.
An Appeal from the Circuit Court for Dade County, Thomas S. Wilson, Jr., Judge. L.T. No. 95-1636
Richard Waserstein and Eric P. Stein, for appellant.
No appearance for appellees.
Before JORGENSON, SHEVIN, and SORONDO, JJ.
Susan Rodell appeals the lower court's award of attorney's fees to Corey and Todd Narson ("Narson"). For the following reasons, we reverse.
Attorney's fees will not be awarded pursuant to section 57.105, Florida Statutes (1995), "unless the court finds a total or absolute lack of a justiciable issue, which is tantamount to a finding that the action is frivolous . . . and so clearly devoid of merit both on the facts and the law as to be completely untenable." Muckenfuss v. Deltona Corp., 508 So.2d 340, 341 (Fla. 1987).
Rodell's case was not frivolous or clearly devoid of all merit both on the facts and the law. Narson hired Cimbler, an attorney that had been previously consulted about this property by Rodell. Despite the fact that Rodell contacted Cimbler regarding another issue pertaining to the property, Rodell disclosed confidential information regarding the property. In good faith, Rodell pursued this conflict of interest issue in a motion to disqualify Cimbler based upon Rule 4-1.9 of the Rules Regulating the Florida Bar. This was a meritorious claim that was not subject to section 57.105 attorney's fees. Hence, attorney's fees were improperly awarded to Narson.
Reversed and remanded for further proceedings consistent with this opinion.