ROBERT A. BECK, II, APPELLANT/CROSS-APPELLEE,
v.
HARRY OLSTEIN, WILLIAM PAULUS, JR., LEONARD BELLEZZA, AND ERNEST SABATO, APPELLEES/CROSS-APPELLANTS
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Beck appealed the trial court's award of attorney's fees to defendants after his voluntarily-dismissed RICO claim was found to lack legal foundation. The court held that a plaintiff's RICO claim based on wrongful termination for refusing to participate in criminal conduct was substantially justified even though no Florida court had yet decided the issue, reversing the fee award.
An action is substantially justified for attorney's fees purposes where it advances in good faith a novel but credible extension or interpretation of the law. A court cannot award attorney's fees simply because no court in the jurisdiction has construed the statute on the point presented. Where a credible treatise published in the jurisdiction advocates the plaintiff's position and is consistent with determinations in other jurisdictions, or where no court in the jurisdiction has decided the question, there is a substantial legal basis for bringing the action.
[1] A claim is substantially justified for the purpose of attorney's fees when it advances in good faith a novel but credible extension or interpretation of the law.
[2] A court cannot award attorney's fees under a "substantial justification" statute solely because no court in the jurisdiction has construed the statute on the presented po…
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Join FLexlaw to unlock all legal intelligence“a court cannot award attorney's fees under a "substantial justification" statute simply because no court in the jurisdiction has construed the statute on the point presented”
Establishes that the absence of prior judicial interpretation in the jurisdiction does not defeat substantial justification
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Join FLexlaw to unlock all legal intelligenceBeck was employed as an insurance administrator and alleged he was discredited and wrongfully terminated because he refused to participate in his empl…
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FERGUSON, Judge.
The issue presented by this appeal is whether the plaintiff’s voluntarily-dismissed substantive claim under the Florida RICO statute was so lacking in a legal foundation that the defendants are entitled to an award of attorney’s fees.1 Beck alleged in his complaint, inter alia, that he was discredited and then wrongfully terminated from employment as an insurance administrator because he refused to participate in his employer’s criminal violations of the insurance laws. Although the trial court denied dismissal of the conspiracy claim on the authority of Shearin v. E.F. Hutton Group, Inc., 885 F. 2d 1162 (3d Cir.1989), it granted the defendants’ motion to dismiss the substantive claims. In dismissing part of the suit, the court accepted the defendants’ contentions that the majority of decisions across the nation deny discharged employees standing to assert a RICO cause of action. Florida courts, however, had yet to decide the question when this action commenced.
Beck’s contentions here are essentially twofold: (1) a court cannot award attorney’s fees under a “substantial justification” statute simply because no court in the jurisdiction has construed the statute on the point presented, and (2) a credible treatise published in the jurisdiction advocating the plaintiff’s position,2 where the position is consistent with determinations in other jurisdictions, or where no court in the jurisdiction has decided the question, is a substantial legal basis for bringing the action. We agree. Moreover, an action is “substantially justified” for the purpose of attorney’s fees where it advances “in good faith a novel but credible extension or interpretation of the law.” S & HRiggers & Erectors, Inc. v. Occupational Safety & Health Review Comm’n, 672 F. 2d 426, 431 (5th Cir.1982).
The order awarding fees to the defendants-appellees is reversed.3
. Section 772.104, Florida Statutes (1989), entitles a defendant to reasonable attorney’s fees and court costs upon a finding that the claimant raised a claim which was without substantial fact or legal support.
. Gough, Wrongful Discharge: Can RICO Come To The Rescue?, 61 Fla.B.J. 91 (June 1987).
. Because we hold that the defendants were not entitled to a fee award in the first instance, we need not address the contention made by cross-appeal that the fee award was wholly inadequate.
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RLS Bus. Ventures, Inc. v. Second Chance Wholesale, Inc., 784 So. 2d 1194 (Fla. 2d DCA 2001)…ection 772.104. We need not do so here because we have already affirmed the directed verdict on RLS’s section 772.104 claim on a different ground. But for purposes of the attorney’s fee issue we find guidance in the Third District’s Beck v. Olstein, 588 So. 2d 317 (Fla. 3d DCA 1991), which held that an action is substantially justified where it advances “in good faith a novel but credible extension or interpretation of the law.” The absence of Florida law on the “racketeering injury” issue, and the existence…
Authorities Cited
- S & H Riggers & Erectors, Inc. v. Occupational Safety & Health Review Comm'n & Raymond J. Donovan, 672 F.2d 426 (5th Cir. 1982)
- Shearin v. The E.F. Hutton Grp., Inc., 885 F.2d 1162 (3d Cir. 1989)