JOSEPH A. FERRARA, PETITIONER,
v.
COMMUNITY DEVELOPERS, LTD., RENTAL SERVICE COMPANY, AND LAMONICA V. GRAY, RESPONDENTS
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Ferrara, an attorney, sought to quash a trial court's award of attorney's fees under section 57.105, Florida Statutes, arguing the moving party failed to comply with the statute's 'safe harbor' provision requiring twenty-one days' notice. The appellate court denied the petition because Ferrara failed to raise this argument in the trial court, thus waiving it on appeal.
The court denied Ferrara's petition for writ of certiorari, holding that the circuit court did not depart from the essential requirements of law because Ferrara waived his safe harbor argument by failing to raise it in the trial court and failing to respond to the motion for attorney's fees.
[1] A party waives the argument that a motion for attorney's fees failed to comply with the statutory "safe harbor" provision if the argument is not raised in the trial court…
[2] Failure to respond to a motion for attorney's fees and failure to attend the hearing on the motion preclude appellate review of arguments against the imposition of fees.
Previewing 2 of 3 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“The scope of our review on second-tier certiorari is limited to whether the circuit court afforded procedural due process and applied the correct law, or in other words, whether the lower court departed from the essential requirements of the law.”
Establishes the standard of review for second-tier certiorari proceedings.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceFerrara represented a defendant in a suit for wrongful cashing of a check. The trial court found that after learning the defendant's version of the fa…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Waiver Of Arguments On Appeal cases and more on FLexlaw
ROTHENBERG, Judge.
Joseph Ferrara (Ferrara) has filed a petition for writ of certiorari seeking to quash a per curiam affirmance by the Circuit Court of the Eleventh Judicial Circuit of Florida, acting in its appellate capacity, which affirmed a county court’s entry of attorney’s fees pursuant to section 57.105, Florida Statutes (2004).
Ferrara is an attorney who represented a defendant against a suit seeking damages for her wrongful cashing of a check. The trial court required both Ferrara and his client to pay fifty percent of the attorney’s fees incurred by the plaintiff, Community Developers, based upon its finding that Ferrara, after learning that the defendant’s version of the facts was false, allowed the defendant to testify falsely, and argued the false version of the facts to the court.
The scope of our review on second-tier certiorari is limited to whether the circuit court afforded procedural due process and applied the correct law, or in other words, whether the lower court departed from the essential requirements of the law. Miami-Dade County v. Omnipoint Holdings, Inc., 863 So. 2d 195, 199 (Fla.2003); Clear Channel Communications, Inc. v. City of North Bay Village, 911 So. 2d 188 (Fla. 3d DCA 2005).
Ferrara argues that the circuit court departed from the essential requirements of the law by affirming the imposition of section 57.105 attorney’s fees as they were entered in violation of section 57.105(4), the “safe harbor” provision of the statute. This provision requires that a party moving for attorney’s fees under section 57.105 must serve the nonmoving party with the motion twenty-one days before filing the motion with the court. However, Ferrara failed to make this argument in the trial court. In fact, Ferrara failed to respond to the motion for section 57.105 fees, and failed to attend the hearing on attorney’s fees.
Ferrara’s failure to argue to the trial court that Community Developers did not comply with 57.105(4), and his failure to respond to the motion for attorney’s fees, precluded the Eleventh Judicial Circuit Court, sitting in its appellate capacity, from considering his argument on appeal. See Department of Revenue v. Yambert, 888 So. 2d 881, 884 n. 3 (Fla. 5th DCA 2004)(finding that the argument that the moving party failed to comply with the safe harbor provision of section 57.105 was waived for the purposes of appellate review because it was not raised to the trial court); Homestead Ins. Co. v. Poole, Masters & Goldstein C.P.A., 604 So. 2d 825 (Fla. 4th DCA 1991)(finding that various arguments made on appeal against section 57.105 attorney’s fees were not properly preserved because the party against whom the fees were assessed never responded to the motion for fees). Therefore, we conclude that the circuit court did not depart from the essential requirements of the law in affirming the trial court’s imposition of attorney’s fees. Thus, we deny the petition for writ of certiorari.
Petition denied.
GREEN, J.
(concurring).
I concur in the result only based upon Miami-Dade County v. Omnipoint Holdings, Inc., 863 So. 2d 195 (Fla.2003); Clear Channel Communications, Inc. v. City of North Bay Village, 911 So. 2d 188 (Fla. 3d DCA 2005).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Coral Imaging Servs. v. GEICO Indem. Ins. Co., 955 So. 2d 11 (Fla. 3d DCA 2006)…ions for a writ of certiorari to quash a decision of the Circuit Court Appellate Division interpreting section 627.736(5)(b), Florida Statutes (1999). As the decision departs from the essential requirements of law, Ferrara v. Cmty. Developers, Ltd., 917 So. 2d 907 (Fla. 3d DCA 2006); Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523 (Fla.1995), we grant certiorari and quash the decision below. We remand with directions to reinstate the summary judgment entered by the trial court. Judge Emas’s eloquently writte…
-
Atl. Shores Resort, LLC v. 507 S. St. Corp. & City of Key W., 937 So. 2d 1239 (Fla. 3d DCA 2006)…from the essential requirements of the law. Miami-Dade County v. Omnipoint Holdings, Inc., 863 So. 2d 195, 199 (Fla.2003); Peachtree Cas. Ins. Co. v. Prof l Massage Servs., Inc., 923 So. 2d 548, 550 (Fla. 1st DCA 2006); Ferrara v. Cmty. Dev., Ltd., 917 So. 2d 907, 908 (Fla. 3d DCA 2005). The Developer claims the Circuit Court departed from the essential requirements of the law by considering issues barred by res judicata and/or collateral estoppel and by refusing to defer to HARC’s interpretation of its own…
-
Granada Ins. Co. v. Mark A. Cereceda, D.C., P.A., 997 So. 2d 1243 (Fla. 3d DCA 2008)…on where there was an “undisputed showing” that the variance approved by city commission was “totally unsupported by the legal ‘hardship’ required by the governing City of Miami ordinance to justify that relief ”); Ferrara v. Cmty. Developers, Ltd., 917 So. 2d 907 (Fla. 3d DCA 2005) (reviewing [*1249] circuit court appellate division’s per curiam affirmance of county court’s decision to award attorney fees to Community Developers, Ltd., and denying petition for writ of certiorari); State v. Bock, 659 So. 2d 1…
Authorities Cited
- Miami-Dade Cnty. v. Omnipoint Holdings, Inc., 863 So. 2d 195 (Fla. 2003)
- Dep't OF Revenue v. Yambert, 883 So. 2d 881 (Fla. 5th DCA 2004)
- Homestead Ins. Co. v. Poole, Masters & Goldstein, C.P.A., P.A., 604 So. 2d 825 (Fla. 4th DCA 1991)
- Clear Channel Commc'ns, Inc. v. City OF N. BAY Vill., 911 So. 2d 188 (Fla. 3d DCA 2005)
- Foster v. State, 911 So. 2d 188 (Fla. 5th DCA 2005)