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. 5^th 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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Recently, I have received a spate of phone calls relating to filing a lawsuit for declaratory relief to establish ownership of a motor vehicle.  As a result of these calls, I decided to write a quick note about this subject.

This issue is prompted by a person going to Florida’s Department of Highway Safety and Motor Vehicles (“DMV”) and the DMV telling the person, or sending the person a letter, that he/she needs to file a lawsuit for declaratory relief in order to obtain a court order awarding ownership of the motor vehicle to the person and directing the DMV to issue the person a certificate of title.   This procedure to obtain an order directing the DMV to issue a certificate of title is issued in accordance with Florida Statute s. 319.28(2)(a) and s. 86.011.  The court in which to file the action for declaratory relief (county court or circuit court) is predicated on the value of the vehicle. 

Certain counties will have packets with the papers a person needs to file in order to obtain the court order.  The packets can be overwhelming because they do require work for the person to do and certify to establish ownership and file a lawsuit.  This does take work because a lawsuit for declaratory relief would need to be filed and served on the last known person holding title.  Naturally, this is better done with an attorney’s assistance, but many times people think the value of the property (i.e., car) should dictate the amount of work.  This is not the case because again, a lawsuit would need to be filed for declaratory relief action because the end game is always the same – getting an order from the court awarding ownership of the vehicle to the person and directing the DMV to issue a certificate of title to the person.

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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The construction / interpretation of a contract including an insurance policy is a question of law. This means it is for the court, not the jury, to interpret a contract.

While there are times parties may prefer to delegate this responsibility to a jury, this is not allowed.

In a recent property insurance coverage dispute, the insured, over the insurer’s objection, was able to get jury instructions instructing to the jury regarding the interpretation of the insurance policy.  On appeal, the appellate remanded the case back to the trial court for a new trial, as the interpretation of the policy was a role reserved for the judge, not the jury.  See Citizens Property Ins. Corp. v. Mendoza, 43 Fla. L. Weekly D1523a (Fla. 4th DCA 2018) (finding other errors that occurred in the trial and maintaining it was the trial judge’s job to instruct the jury that certain exclusions in the policy were not in conflict or sustain objections as to arguments to the contrary).

The judge interprets the policy; the jury, in an insurance coverage dispute, determines whether the facts fall within the scope of coverage.

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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