JOHN M. O'DANIEL AND THERESA HILLS, APPELLANTS,
v.
BOARD OF COMMISSIONERS OF MONROE COUNTY, APPELLEE
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Appellants who prevailed in a trial against Monroe County over building permit rights sought attorney's fees under section 57.105, Florida Statutes. The trial court struck the motion for fees on procedural grounds, and the appellate court affirmed, holding that the motion was untimely because it was filed after trial rather than within the statutory 21-day window required by the statute.
The motion for attorney's fees was untimely and properly stricken. Section 57.105(4) requires that a motion for sanctions be served within 21 days after service of the challenged paper, claim, defense, or contention, giving the opposing party an opportunity to retract or amend. Because the motion was filed after trial concluded, the appellee never had an opportunity to retract or correct its defenses.
[1] A motion for attorney's fees under section 57.105, Florida Statutes, must be served but may not be filed unless the challenged paper, claim, defense, contention, allegati…
[2] A party must be afforded an opportunity to retract or amend defenses before a motion for attorney's fees under section 57.105, Florida Statutes, can be properly filed.
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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21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.”
This statutory language establishes the procedural requirement that triggered the court's ruling that appellants' motion was untimely.
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Join FLexlaw to unlock all legal intelligenceAppellants brought an action against Monroe County to establish their rights to a 1983 building permit and require the County to allow them to complet…
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PER CURIAM.
This is an appeal from an order denying the appellant’s motion for attorney’s fees pursuant to section 57.105, Florida Statutes (2003). We affirm.
Appellants brought an action against Monroe County to establish their rights to a 1983 building permit, and to require the County to allow the appellants to complete the construction of a structure. Following a trial on the merits, final judgment was entered in appellants’ favor. Thereafter, appellants moved for attorney’s fees pursuant to section 57.105.. Monroe County moved to strike the motion for fees on procedural grounds. The trial court granted the County’s motion to strike and this appeal followed.
Section 57.105 provides, in pertinent part, that:
(1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee 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 proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or (b) Would not be supported by the application of then-existing law to those material facts.
However, the losing party’s attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts. If the court awards attorney’s fees to a claimant pursuant to this subsection, the court shall also award prejudgment interest.
* * *
(4) 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.
§ 57.105(1), (4), Fla. Stat. (2003)(emphasis added). Subsection four of the statute illustrates the legislature’s intent to give a party an opportunity to retract a frivolous “paper, claim, defense, contention, allegation, or denial” before the opposing party can file a motion for section 57.105 fees.
Here, the motion for fees was served and filed following the conclusion of the trial on the merits. Thus, the appellee was never given an opportunity to retract or amend its defenses. Therefore, the motion for attorney’s fees was untimely and properly stricken.
Accordingly, we affirm the order of the trial court. See Chase v. Cowart, 102 So. 2d 147, 150 (Fla.1958)(result in trial court must be affirmed if right, even if right for wrong reason).
Affirmed.
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Davidson v. Abel Ramirez, 970 So. 2d 855 (Fla. 3d DCA 2007)…ppealed. We conclude that the trial court’s ruling was in error. The purpose of subsection (4) is to give a pleader a last clear chance to withdraw a frivolous claim. Burgos v. Burgos, 948 So. 2d 918 (Fla. 4th DCA 2007); O’Daniel v. Bd. of Comm’rs, 916 So. 2d 40 (Fla. 3d DCA 2005). Subsection 57.105(4) states: 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, c…
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Anchor Towing, Inc. v. Fla. Dep't OF Transp. & Sunshine Towing, Inc., 10 So. 3d 670 (Fla. 3d DCA 2009)…”). 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 twenty-one days in which to withdraw the objected to claims. O’Daniel v. Bd. of Comm’rs, 916 So. 2d 40 (Fla. 3d DCA 2005) (striking attorney’s fees under section 57.105(4) where the defendant waited until the case was over to file its fee motion). Therefore, we reverse with directions that the administrative law judge vacate the order awarding attorn…
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City OF N. Miami Beach v. Berrio, 64 So. 3d 713 (Fla. 3d DCA 2011)…se the claimant failed to follow the twenty-one day “safe harbor” provision of subsection 57.105(4). See generally Nathan v. Bates, 998 So. 2d 1178 (Fla. 3d DCA 2008); Burgos v. Burgos, 948 So. 2d 918 (Fla. 4th DCA 2007); O’Daniel v. Bd. of Comm’rs, 916 So. 2d 40 (Fla. 3d DCA 2005). The City points to the undisputed fact that the claimant failed to serve his motion for fees on the City twenty-one days prior to filing the motion with the clerk and presenting it to the trial court. The City also argues that th…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Chase v. Faris Cowart, 102 So. 2d 147 (Fla. 1958)