Builders Shoring and Scaffolding v. King, s. 83-1285

• Decision Date: 02 August 1984
• Docket Number: 83-1710,Nos. 83-1285,s. 83-1285
• Citation: 453 So.2d 534
• Parties: BUILDERS SHORING AND SCAFFOLDING, etc., et al., Appellants, v. Carroll Donald KING, et al., Appellees.
• Court: Florida District Court of Appeals

Page 534

453 So.2d 534

BUILDERS SHORING AND SCAFFOLDING, etc., et al., Appellants, v. Carroll Donald KING, et al., Appellees.

Nos. 83-1285, 83-1710.

District Court of Appeal of Florida, Fifth District.

Aug. 2, 1984.

Dennis J. Wall of Rumberger, Kirk, Caldwell, Cabaniss & Burke, Orlando, for appellants.

Martin B. Unger and Edmund T. Baxa, Jr., of Swann & Haddock, P.A., Orlando, for appellee F.W. Woolworth & Co.

No appearance for appellees King.

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.

COBB, C.J., and FRANK D. UPCHURCH, Jr., J., concur.