BUILDERS SHORING AND SCAFFOLDING, ETC., ET AL., APPELLANTS,
v.
CARROLL DONALD KING, ET AL., APPELLEES
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ORFINGER, Judge.
The trial court correctly dismissed the third party complaint, so the amended final judgment in favor of the third party defendant is affirmed.
We do not agree, however, that the third party complaint was so frivolous as to warrant the imposition of attorney’s fees against the third party plaintiffs under the provisions of section 57.105, Florida Statutes (1983). Although the position asserted by third party plaintiffs was erroneous on the merits, the claim was not entirely devoid of even arguable substance. See, Whitten v. Progressive Casualty Insurance Company, 410 So. 2d 501 (Fla.1982); Allen v. Estate of Dutton, 384 So. 2d 171 (Fla. 5th DCA 1980). At least some of the counts asserted by the third party plaintiffs were arguable, and we should not impose a penalty on a party who attempts to raise novel questions of law or who, in good faith, attempts to move the law in a slightly different direction. See, Russell v. State, 417 So. 2d 1119 (Fla. 5th DCA 1982). The order awarding attorney’s fees is therefore reversed.
AFFIRMED IN PART; REVERSED IN PART.
UP-COBB, C.J., and FRANK D. CHURCH, Jr., J., concur.
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Citator
Cited By
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Ciamar Marcy, Inc. v. Renato M. Monteiro da Costa, 508 So. 2d 1282 (Fla. 3d DCA 1987)…seized the leased vessel and some of the plaintiff’s personal belongings does not mean, as urged by the plaintiff, that their position on the distinct issue of malice or reckless disregard was frivolous. See Builders Shoring and Scaffolding v. King, 453 So. 2d 534 (Fla. 5th DCA 1984); cf. Golden Eagle Distributing Corp. v. Burroughs Corp., 801 F. 2d 1531 (9th Cir.1986) (under Federal Rule of Civil Procedure 11, the fact that one of several arguments is unmeritorious does not warrant imposition of sanctions).…
Authorities Cited
- Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501 (Fla. 1982)
- Carola D. Allen v. Est. of Ellen C. Dutton, 384 So. 2d 171 (Fla. 5th DCA 1980)
- Major Russell v. The State of Fla. & Gordon Oldham, Jr., 417 So. 2d 1119 (Fla. 5th DCA 1982)