ALAN NATHAN, SUZAN BARROS, STUART NATHAN, ROBERT NATHAN, EDNA NATHAN, ROXANNE LANE, DANIEL BLANCO, GREGORY RICCI AND GORDON CONE, APPELLANTS,
v.
MAURICE BATES, A/K/A ALVINIE MAURICE BATES, III, D/B/A BATES ENTERPRISES AND GOLD BY GOD, ET AL., APPELLEES
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The Florida Third District Court of Appeal vacated its prior order awarding attorneys' fees to the Floyds under section 57.105, finding that the Floyds failed to comply with the statute's procedural requirement of waiting 21 days after serving a motion before filing it with the court.
The Floyds did not comply with section 57.105(4) because they filed the motion with the court only three days after service rather than waiting 21 days as the statute requires. A prior warning letter does not satisfy the statute's requirement that a motion be served and then filed after the 21-day period expires.
[1] A motion for attorney's fees under section 57.105, Florida Statutes, must be served on the opposing party before being filed with the court.
[2] A party seeking attorney's fees under section 57.105, Florida Statutes, must wait 21 days after service of the motion before filing it with the court, to allow the opposi…
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Join FLexlaw to unlock all legal intelligence“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21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.”
The governing statutory language that the Floyds violated by filing their motion only three days after service.
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Join FLexlaw to unlock all legal intelligenceAlan Nathan and others sued Maurice Bates and others for alleged mortgage fraud. The Floyds were defendants in this action, sued on May 16, 2007. On A…
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PER CURIAM.
Alan Nathan has moved for rehearing and clarification, not on the merits, but on our order granting the motion by appel-lees, Steve and Cheryl Floyd, for attorneys’ fees pursuant to section 57.105, Florida Statutes (2008). We grant rehearing and deny the motion based on the Floyds’ failure to comply with the procedural requirements of the statute.
The Floyds were sued on May 16, 2007, for them alleged involvement in a mortgage fraud scheme. On August 30, 2007, the Floyds’ attorney sent a letter to Nathan’s counsel threatening to seek attorneys’ fees pursuant to section 57.105. Evidently, no motion for fees was ever filed before the trial court except in a motion to strike in which they had sought attorneys’ fees and costs for bringing sham claims. The trial court never awarded any fees.
The Floyds served a motion for attorneys’ fees pursuant to section 57.105, on May 16, 2008. They filed it with our Court on May 19, 2008. Section 57.105(4), Florida Statutes (2008) provides as follows:
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.
Statutes authorizing award of attorney’s fees in derogation of common law must be strictly construed. Kittel v. Kittel, 210 So. 2d 1, 3 n. 7 (Fla.1968). The Floyds did not comply with the statute when they only waited three days after service before filing the motion. “The purpose of subsection (4) is to give a pleader a last clear chance to withdraw a frivolous claim.” Davidson v. Ramirez, 970 So. 2d 855, 856 (Fla. 3d DCA2007).
The Floyds argue that the letter of August 30, 2007, placed Nathan on notice of them intent to seek fees. The statute, however, clearly provides for a motion, not a letter. The clear language of the statute refers to the service of a motion, followed by its filing twenty-one days later. It is not for us to substitute different language.
We therefore grant rehearing and vacate our prior order awarding attorneys’ fees pursuant to section 57.105. Our ruling makes the motion for clarification moot.
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Global Xtreme, Inc. v. Advanced Aircraft Ctr., Inc., 122 So. 3d 487 (Fla. 3d DCA 2013)…hdrawn or appropriately corrected.” This Court has repeatedly stated that the statute is in derogation of common law and must be strictly construed. See Anchor Towing, Inc. v. Fla. Dep’t of Transp., 10 So. 3d 670 (Fla. 3d DCA 2009); Nathan v. Bates, 998 So. 2d 1178 (Fla. 3d DCA 2008). In order to comply with section 57.105, a party must first serve a motion seeking fees, “followed by its filing twenty-one days later.” Nathan, 998 So. 2d at 1179. This is commonly known as the safe harbor provision, see Bioneti…
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Montgomery v. Larmoyeux, 14 So. 3d 1067 (Fla. 4th DCA 2009)…led “to meet the mandatory notice requirement of section 57.105(4)” by sending a letter instead of “the statutorily required motion” to opposing counsel, as statutes “in derogation of the common law” are “strictly construed” (citing Nathan v. Bates, 998 So. 2d 1178, 1179 (Fla. 3d DCA 2008))); Burgos v. Burgos, 948 So. 2d 918, 919 (Fla. 4th DCA 2007) (holding that, [*1073] because a party “failed to comply with the requirements of section 57.105(4)” by filing with the trial court a section 57.105 motion three d…
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Anchor Towing, Inc. v. Fla. Dep't OF Transp. & Sunshine Towing, Inc., 10 So. 3d 670 (Fla. 3d DCA 2009)…meet the mandatory notice requirements of section 57.105(4). The letter sent to opposing counsel is not the same as the statutorily required motion, which is required to be served on opposing counsel and later filed with the court. Nathan v. Bates, 998 So. 2d 1178, 1179 (Fla. 3d DCA 2008) (“The statute ... clearly provides for a motion, not a letter.”). Filing the motion with the court after the proceedings concluded also does not comply with the statute, as Anchor did not then have the statutorily required t…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kittel v. Anne B. Kittel, 210 So. 2d 1 (Fla. 1967)
- Davidson v. Abel Ramirez, 970 So. 2d 855 (Fla. 3d DCA 2007)