service of motion for sanctions

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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