dissenting.
On rehearing, the majority holds that the trial court’s decision to award attorney’s fees to appellee QHG was not erroneous because | ^appellant’s complaint did not contain a justiciable issue. I believe that appellant presented a justiciable issue, making an award of attorney’s fees inappropriate. I would reverse.
We are charged in our de novo review with the singular task of determining whether — as a matter of law — appellant presented a justiciable claim. Subsection 16 — 22—809(b) states that in order to be awarded attorney’s fees, it is necessary to prove that the plaintiff was acting in bad faith. I do not find that the order, the transcript of the hearing, or the record as a whole demonstrates that , appellant brought the breach-of-fiduciary-duty claim in bad faith.
In reaching its conclusion, the circuit court and the majority opinion particularly focus on damages. QHG filed a notice of lien against appellant first on March 11, 2008, and then again on March 31, 2009. On May 21, 2009 — a little over three months after appellant’s suit was filed and one month after appellant amended its complaint to add QHG — QHG wrote-off the remaining co-pay amount of $146.09, fully settling appellant’s account. The lien was released on July 17, 2009. Under these facts, I cannot agree that there were no damages. While QHG had “written off’ the charges before the hearing on summary judgment, it had filed a second personal lien against appellant just two weeks prior to appellant amending the complaint to add QHG. The fact that QHG wrote the debt off some two weeks after the complaint was amended to bring QHG into the case mitigated damages but did not nullify the cause of action.
|9In any event, the circuit court never found that the claim was commenced, used, or continued in bad faith or otherwise met the requirements for awarding attorney’s fees under section 16-22-309(a)(l). Because the requirement of bad faith underlying an award of attorney’s fees under this statute was not met, I would reverse.
HART, J., joins.