As a lawyer, it is important to examine your client or prospective client regarding the facts of their case. In this manner, it is important to conduct legal research to support legal arguments, especially arguments applied to the facts. The bottom line is that you want to make sure you are NOT filing a frivolous claim or defense, which is typically one that (a) is NOT supported by material facts necessary to support the claim or defense or (b) NOT supported by the application of the law. See Fla. Stat. s. 57.105. If you do, you could be exposed to sanctions—be liable for the opposing party’s attorney’s fees and costs. But such exposure can also run to the lawyer.
Florida Statute s. 57.105 provides:
(1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.
(4) A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.
There are attorneys that will serve what is known as a “57.105 motion for sanctions” telling you that unless you dismiss the claim or defense within 21 days (known as the safe harbor time period) they will file the motion and seek fees and costs associated with the claim for defense. Some attorneys do this as an intimidation tactic. Notwithstanding, an attorney should consider the substance and merits of the motion.
But, what if a party’s 57.105 motion is defective or they do not give the 21 days safe harbor time period? In a recent decision Watson v. Stewart Tilghman Fox & Bianchi, P.A., 41 Fla. L. Weekly D1523a (Fla. 4th DCA 2016), a party served a defective 57.105 motion for sanctions. Nonetheless, the trial court still awarded sanctions (fees and costs) against the plaintiff and her lawyer on the court’s own initiative based on the frivolousness of the plaintiff’s lawsuit. The appellate court held that a trial court can award sanctions (fees and costs) on its own initiative (based on the frivolousness of the claim) and, if it does so, the 21 day safe harbor provision does not apply. OUCH!
Please contact David Adelstein at firstname.lastname@example.org or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.