
    Jonnie DAVIS, Appellant, v. BILL WILLIAMS AIR CONDITIONING AND HEATING, INC., a Florida corporation, Appellee.
    No. 1D99-2365.
    District Court of Appeal of Florida, First District.
    June 6, 2000.
    Rehearing Denied July 28, 2000.
    James C. Cumbie, Jacksonville, for Appellant.
    William G. Cooper and Tracy K. Arthur of Cooper, Ridge & Beale, P.A., Jacksonville, for Appellee.
   BROWNING, J.

Appellant seeks review of the trial court’s order denying attorney’s fees pursuant to section 57.105, Florida Statutes, after Appellant was voluntarily dismissed as a party below after discovery proceedings had been conducted and Appellant had pending a motion for summary judgment. Finding no factual basis for the allegations against Appellant, we reverse the trial court’s order denying attorney’s fees as an abuse of discretion.

Appellant’s husband, Stanley Davis (Davis), a bookkeeper and comptroller of Bill Williams Air Conditioning and Heating, Inc., (Appellee), confessed to Bill Williams (Williams), an officer of the corporation, owner of the corporation, and sole spokesman for the corporation and two other employees, that he had embezzled a half million dollars from Appellee. Subsequently, Appellee filed a complaint seeking damages and injunctive relief against Davis and Appellant alleging, in pertinent part, that Davis wrongfully obtained in excess of $500,000.00 from Ap-pellee, and Davis and Appellant had possession of funds taken from, or property purchased with, funds taken from Appel-lee. However, when deposed, Williams testified that he had no personal knowledge or other proof to support such allegations against Appellant, but that “common sense” supports a conclusion that Appellant would know if Davis had “more than $300,000.00 a year in income,” an amount far in excess of his salary and apparent financial means. Williams also admitted that he knew Davis was having a romantic affair during the time the embezzlement occurred. Williams further testified that Davis told him Appellant did not know about the embezzled funds, but that Williams did not believe him, and instead, used “common sense” as his “guideline” in filing suit against Appellant.

Based upon Williams’ testimony, Appellee had no factual basis to support the allegations against Appellant. Filing a lawsuit with no factual basis “is a classic situation in which fees should be assessed” under section 57.105, Florida Statutes. Sykes v. St. Andrews School, 625 So.2d 1317, 1318 (Fla. 4th DCA 1993).

We are not unmindful of the hint of a conflict between this decision and the decision of the Third District relied upon by the dissent, Executive Centers of America v. Durability Seating & Interiors Inc., 402 So.2d 24 (Fla. 3d DCA 1981). However, we find a compelling difference between the facts of that case and the case at bar that supports our determination. In Executive Centers, that court was faced with a claim for attorney’s fees based solely upon evidence of a party’s entry of a voluntary dismissal without prejudice. In contrast, in the case at bar, evidence was adduced that shows Appellee’s sole basis for joining Appellant as a party is Appellant and Davis’ marriage, and not any actions of Appellant that are adverse to Appellee. To disallow fees to Appellant on these facts would sanction a denial of attorney’s fees based merely upon the marital status of a party. A party to a marriage should not be subjected to a baseless suit merely on a “common sense” approach that is determined to be factually incorrect by unrefuted evidence, as presented by Appellant in the case at bar, without receiving an award of attorney’s fees. Appellee took a chance by filing its suit against Appellant in anticipation of discovering actionable facts, and when such facts were not found, Appellee, facing a pending motion for summary judgment, took a voluntary dismissal. Because of these actions, Appellee should pay the attorney’s fees incurred by Appellant.

REVERSED and REMANDED for entry of a finding under section 57.105, Florida Statutes, and an award of attorney’s fees to Appellant.

BENTON, J., CONCURS and VAN NORTWICK, J., DISSENTS WITH OPINION.

VAN NORTWICK, J.,

dissenting.

Because I cannot agree that the trial court abused its discretion in denying an award of attorney’s fees to the appellant pursuant to section 57.105, Florida Statutes (1997), I respectfully dissent.

In reviewing a trial court’s ruling on an award of attorney’s fees under section 57.105(1), we are obligated to apply an abuse of discretion standard of review. See Department of Health v. Curry, 722 So.2d 874, 879 (Fla. 1st DCA 1998), rev. denied, 735 So.2d 1284 (Fla.1999); see also Department of Transp. v. Kisinger Campo & Assocs., Corp., 661 So.2d 58 (Fla. 2d DCA 1995). Where reasonable people could differ as to the trial court’s decision, there is no abuse of discretion. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980).

Section 57.105(1), Florida Statutes (1997), provides, in pertinent part, as follows:

The court shall award a reasonable attorney’s fee to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the complaint ... of the losing party; ...

As a prerequisite to an award of attorney’s fees under the version of section 57.105 applicable here, the trial court must find that there was a complete absence of a justiciable issue of law or fact raised by the losing party. See Lambert v. Nelson, 573 So.2d 54, 56 (Fla. 1st DCA 1990); State, Dep’t of Revenue ex rel. Skalniak v. Dey, 737 So.2d 635, 636 (Fla. 1st DCA 1999). The entire action must be so clearly devoid of merit both on the facts and the law as to be completely untenable. See Demby v. English, 667 So.2d 350, 353 (Fla. 1st DCA 1995); Lambert, 573 So.2d at 56. Even if a substantial portion of the complaint is frivolous, an award of attorney’s fees is not appropriate so long as the complaint alleges some justiciable issues. See Muckenfuss v. Deltona Corp., 508 So.2d 340, 341 (Fla.1987); Boyce v. Cluett, 672 So.2d 858, 861 (Fla. 4th DCA 1996). Moreover, if an action can be considered to have been non-frivolous at its inception, subsequent dismissal of the action or subsequent developments which render the claim without justiciable issues in law or fact does not subject the losing party to attorney’s fees. See Lambert, 573 So.2d at 56; Schwartz v. W-K Partners, 530 So.2d 456, 457 (Fla. 5th DCA 1988); Inc. v. Party Prods., II, Inc., 738 So.2d 515, 516 (Fla. 3d DCA 1999).

In the instant action, the complaint filed by the appellee against both Stanley M. Davis and the appellant sought damages for the embezzled funds, the imposition of a constructive trust on any proceeds of the alleged embezzlement and any property acquired or maintained through the use of embezzled funds, and an injunction to prevent the Davises from disposing of or encumbering any assets purchased by the proceeds of Mr. Davis’ alleged embezzlement. Following a hearing at which the appellant was represented, the trial court granted an injunction against both Mr. Davis and appellant which maintained the status quo by, among other things, prohibiting the transfer or sale of the marital home or any jointly-owned furniture, jewelry, and fixtures in the marital home. At that time, the marital home and the jointly-owned property were in the sole possession of appellant. Although the appellant now argues that the injunction was entered without a sufficient factual basis, appellant has not appealed the granting of this injunction.

Even if appellee’s claim for damages against appellant was not supported by the necessary facts, an issue I do not address, I cannot understand how there can be a complete absence of a justiciable issue, when the trial court has granted substantive relief to the party against whom the court is asked to levy attorney’s fees under section 57.105(1). See Muckenfuss, 508 So.2d at 341. I agree with the Third District that the granting of injunctive relief after a hearing with notice is “clearly inconsistent with a finding of a total lack of a justiciable issue.” Executive Ctrs. of Am., Inc. v. Durability Seating & Interiors, Inc., 402 So.2d 24, 26 (Fla. 3d DCA 1981). Further, the proceedings seeking fees pursuant to section 57.105(1) are not the appropriate forum in which to argue that the injunction was wrongfully issued. Id. In my view, considering the substantive relief granted in this action, reasonable people could disagree as to the trial court’s determination that the appellee’s action was not completely devoid of merit. As a result, I believe that there was no abuse of discretion and we are constrained to affirm. 
      
      . Compare the current wording of section 57.105(1), which the 1999 Florida Legislature amended to read, in pertinent part, as follows:
      (1) Upon the court's initiative or motion of any party, the court shall award a reasonable attorney's fee to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a in any civil proceeding or action in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
      (a) Was not supported by the material facts necessary to establish the claim or defense; or
      (b) Would not be supported by the application of then-existing law to those material facts, tfaege-^was a complete-absence ■ of a justiciable' issue of either law or fact raised by-the complaint or defense of the losing part}'....
      Ch. 99-225(4), Laws of Florida. (The language added by chapter 99-225(4) is indicated in underlined type, and language deleted is indicated in struck through type. See Laws of Florida (1999), Vol. I, pt. one, pg. iii).
     