dissenting with opinion.
At the time the trial judge entered his order and for a significant period before that the statute in question, section 57.105, Florida Statutes (Supp.) (1986),1 permitted an award against both a party and the attorney. There is no exemption for state attorneys representing The Department of Health and Rehabilitative Services as a petitioner, or whoever it was the state attorney was representing. In his brief the state attorney says he is an attorney for “the State of Florida, Department of HRS o/b/o Judith Marie Lilly.”
State attorneys should not foster or continue frivolous lawsuits any more than other lawyers. The state attorney has not asked this court to divide and apportion the fees so that his client can share.
I would affirm.
. § 57.105, Fla.Stat. (Supp.) (1986) provides:
Attorney's fee. — 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 or defense of the losing party; provided, however, that the losing party’s attorney is not personally responsible if he has acted in good faith, based on the representations of his client.