57.105 Motion for Sanctions

In prior postings, I discussed Florida Statute s. 57.105, which provides a statutory basis to serve a motion to seek attorney’s fees against another party (and even their counsel) if they are pursuing frivolous (bad faith) claims, motions, or defenses, or taking action for purposes of unreasonable delay. While this is not a motion I personally like to file, the recent Third District Court of Appeal’s opinion in Lanson v. Reid, 45 Fla. L. Weekly D2479a (Fla. 3d DCA 2020), discusses two important aspects of what is commonly known as a 57.105 motion for sanctions. Any party considering this type...

11 May

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Mutuality of Obligation when it comes to Contractual Attorney’s Fees

Posted by David Adelstein

in Trial Perspectives

The recovery of attorney’s fees is a creature of contract or statute. When a party prays for attorney’s fees in a lawsuit, that prayer for relief is based on a contractual basis or a statutory basis to attorney's fees. Sometimes, contracts include one-way prevailing party attorney’s fees. In other words, the contract may provide that if one party (typically, the drafter of the contract) has to enforce the contract, the other party has to pay that party’s attorney’s fees and costs. But, what if the other party has to enforce the contract or prevails in the other party's enforcement action. ...

03 November

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If You File a Frivolous Motion or Pleading: BEWARE

Posted by David Adelstein

in Trial Perspectives

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...

21 July

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Serving a Florida Statute s. 57.105 Motion for Sanctions

Posted by David Adelstein

in Trial Perspectives

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...

30 June

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

Posted by David Adelstein

in Trial Perspectives

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...