MISAEL JIMENEZ AND JUDITH RIVERA, AS CO-PERSONAL REPRESENTATIVES OF THE ESTATE OF GLADYS DE PAOLO
v.
ARMANDO AVILES, STEPHEN P. HEUSTON AND HEUSTON LEGAL, PLLC.
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Appellants, as personal representatives of an estate, challenged a trial court's order striking their three motions for attorney's fees under Florida Statutes section 57.105. The court reversed, holding that the trial court erred in applying the safe-harbor provision because it failed to consider whether specific claims and allegations were withdrawn, not just specific filings.
The court reversed, holding that the trial court erred in its application of section 57.105(4). The safe-harbor provision requires withdrawal or correction not only of specific papers but also of any claim, defense, contention, allegation, or denial challenged in the motion.
[1] A party seeking attorney's fees under section 57.105, Florida Statutes, must comply with the safe-harbor provision, which requires that the challenged paper, claim, defen…
[2] The safe-harbor provision of section 57.105(4), Florida Statutes, applies not only to specific filings but also to specific claims, contentions, allegations, or denials.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
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21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.”
This quote establishes the statutory safe-harbor provision that requires withdrawal or correction of not only specific papers but also claims, allegations, and other substantive matters.
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Join FLexlaw to unlock all legal intelligenceIn a probate proceeding, Appellants filed three motions for attorney's fees pursuant to section 57.105, Florida Statutes. The trial court struck all t…
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PER CURIAM.
Appellants appeal1 the trial court’s order striking their three motions for attorney’s fees filed pursuant to section 57.105, Florida Statutes (2019), in the probate proceeding below, arguing that the trial court erred when it determined that section 57.105(4)’s safe-harbor provision applied. We have jurisdiction2 and reverse.
On appeal, Appellants argue the trial court erred, inter alia, because (1) at least one document was not timely withdrawn, and (2) Appellees would repeatedly withdraw an offending document and then later refile the same claims and allegations. We agree.
First, although Appellees timely withdrew their “Amended Notice of Joinder” within the safe-harbor period as to the third motion, they failed to do so as to the second motion.
Second, and more importantly, Appellants did not merely challenge
Appellees’ specific filings in their motions. They also challenged specific claims and allegations made by Appellees. 1 We previously converted Appellants’ petition for writ of certiorari to an appeal. See Fla. R. App. P. 9.040(c) (“If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought . . . .”). 2 See Fla. R. App. P. 9.170(b)(24); see also In re Guardianship of Bloom, 227 So. 3d 165, 169 (Fla. 2d DCA 2017). 2 Section 57.105(4) provides:
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.
While section 57.105(4) certainly contemplates a challenge to a specific “paper,” it also allows a party to challenge any “claim, defense, contention, allegation, or denial.” Therefore, we conclude that the trial court erred when it only considered whether Appellees’ specific “filings” were timely withdrawn. As such, we reverse the order on appeal and remand for reconsideration of the motions.
REVERSED and REMANDED with INSTRUCTIONS.
WALLIS, EISNAUGLE and TRAVER, JJ., concur. 3
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Authorities Cited
- In re Guardianship OF Leon Bloom v. Bloom, 227 So. 3d 165 (Fla. 2d DCA 2017)