Florida Statute 57.105

If You File a Frivolous Motion or Pleading: BEWARE

Posted by David Adelstein on November 03, 2018
Trial Perspectives / Comments Off on If You File a Frivolous Motion or Pleading: BEWARE

If you file a frivolous motion or pleading: BEWARE.  Appellate courts are taking seriously frivolous filings. Frankly, they should!  

In a recent case, Mark W. Rickard, P.A. d/b/a Law Guard v. Nature’s Sleep Factory Direct, LLC, 43 Fla.L.Weekly D2438b (Fla. 4th DCA 2018), a plaintiff voluntarily dismissed its lawsuit prior to trial.  The defendant than filed a motion for prevailing party attorney’s fees.  However, the defendant NEVER pled an actual entitlement to attorney’s fees. The plaintiff served a Florida Statute s. 57.105 motion that is designed to notify a party of a frivolous filing and give them a safe-harbor time period to withdraw the filing before sanctions (attorney’s fees and costs) can be imposed.  The defendant withdrew its motion, albeit too late–after the safe harbor period expired.  

The trial court denied the plaintiff’s Florida Statute s. 57.105 motion for sanctions. The plaintiff appealed and the appellate court reversed finding that the defendant’s motion for attorney’s fees without a basis was frivolous and its withdrawal of the motion was too late since it came after the expiration of the safe harbor time period: 

Section 57.105(1) provides for attorney’s fees as sanctions for being forced to participate in frivolous litigation. In determining whether to award such fees, “[t]he [trial] court determines if the party or its counsel knew or should have known that the claim or defense asserted was not supported by the facts or an application of existing law.” Motions for attorney’s fees count as “claims.” 

Typically, a party seeking attorney’s fees must specifically allege and request the award in the pleadings…. However, Appellees’ counsel failed to withdraw the meritless motion until well after the safe harbor period had passed….

Mark W. Rickard, P.A. d/b/a Law Guard, supra (internal citations omitted).

Frivolous filings are a big deal. A filing is deemed frivolous if a party or its counsel knew or should have known that a claim or defense was not supported by the facts or application of existing law.  In this case, the defendant and its counsel should have known the motion was frivolous under existing law.  The fact that the defendant’s counsel ultimately recognized this and withdraw the motion was of no moment because it was too late–after the expiration of the safe harbor period.  

Thus, if you file a frivolous motion of pleading: BEWARE

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

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Serving a Florida Statute s. 57.105 Motion for Sanctions

Posted by David Adelstein on July 21, 2018
Trial Perspectives / Comments Off on Serving a Florida Statute s. 57.105 Motion for Sanctions

Appellate courts have been all over the place regarding how to serve a motion for sanctions under Florida Statute s. 57.105 that it has become borderline ridiculous.  Of course, this is my opinion, but the ridiculousness prompts the question mark in the photo.  

 A motion for sanctions under s. 57.105 is served when a claim or defense is NOT supported by material facts or is NOT supported by the application of then-existing law to the material facts and the party or party’s counsel knew or should have known of same.  Stated more simplistically, this motion gives rise when a claim or defense has a frivolousness component. 

The motion is served at least 21 days before it is filed to give the other party an opportunity to withdraw the claim or defense.  It is a safe-harbor provision to allow the other party to consider the merits of the motion for sanctions to determine whether to withdraw the potentially frivolous claim or defense.  In other words, if a party’s claim or defense cannot be supported by the facts or the law, the motion for sanctions is served giving the party the 21-day safe-harbor to determine whether to withdraw the claim or defense.  If they do not, and the motion is filed and the court agrees, the court shall award reasonable attorney’s fees, including prejudgment interest, to the prevailing party in equal amounts by the losing party and the losing party’s attorney.

However, losing parties have been able to argue the motion was not properly served to trigger the application of attorney’s fees.  Parties who filed claims or defenses that fell below the statutory threshold in Florida Statute s. 57.105 have been able to skirt the imposition of attorney’s fees by arguing that the motion was not properly served in strict compliance with Florida Rule of Judicial Administration 2.516 and there are conflicting decisions on this issue (even though the party had actual notice and received the motion).  See, e.g., Goersch v. City of Satellite Beach, 43 Fla. L. Weekly D1629b (Fla. 5th DCA 2018) (finding that motion for sanctions under s. 57.105 needs to be served in strict compliance with Florida Rule of Judicial Administration 2.516 and because the motion was not served in strict compliance the losing party is not responsible for fees). I’m sorry but the strict compliance requirement and the conflicting decisions is ridiculous and merely waters down the intent of s. 57.105 which is designed to eliminate frivolous claims or defenses. 

If you are serving a s. 57.105 motion for sanctions, and you have a really good basis under the material facts and existing law as recited in the motion, make sure it is served in strict compliance with Florida Rule of Judicial Administration 2.516.  Otherwise, the merits of the motion will be watered down by the argument that you did not strictly comply, even if you have substantially complied with the service requirements.

While I very rarely serve this a of motion for sanctions under s. 57.105 (and in the rare occasions I actually serve one it is a detailed motion that details both facts and law), there is value if a claim or defense is undeniably frivolous. 

 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Just Say NO! to Frivolous Claims! Otherwise 57.105 May Apply!

Posted by David Adelstein on June 30, 2016
Trial Perspectives / Comments Off on Just Say NO! to Frivolous Claims! Otherwise 57.105 May Apply!

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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.

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(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 dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

 

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