Don’t File a Meritless Claim You Know is Meritless (You May be Exposed to a 57.105 Motion)

Florida Statute 57.105 is a statute designed to deter meritless filings: “The central purpose of section 57.105 is, and always has been, to deter meritless filings and thus streamline the administration and procedure of the courts.” Mullins v. Kennelly, 847 So. 2d 1151, 1154 (Fla. 5th DCA 2003). Subsection (1) of the statute 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...

07 November

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57.105 Motion for Sanctions

Posted by David Adelstein

in Appeal

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...

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...