RICHARD BURGOS AND DURAN SCHMIDT, APPELLANTS,
v.
JOSE A. BURGOS, APPELLEE
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Appellants Richard Burgos and Duran Schmidt appealed a trial court's award of attorney's fees under section 57.105, Florida Statutes. The appellate court reversed, holding that the appellee failed to comply with the statutory 21-day notice requirement before filing a motion for sanctions.
The trial court erred in granting attorney's fees because appellee failed to comply with section 57.105(4), which requires that a sanctions motion be served but may not be filed unless the challenged paper is not withdrawn or appropriately corrected within 21 days after service of the motion.
[1] A motion seeking sanctions under section 57.105(4), Florida Statutes, must be served but may not be filed with the court until at least 21 days after service, during whic…
[2] Statutes authorizing awards of attorney's fees are in derogation of common law and must be strictly construed.
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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21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.”
Establishes the mandatory statutory requirement for section 57.105(4) that was not followed by appellee
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Join FLexlaw to unlock all legal intelligenceAppellants filed a defamation complaint against appellee Jose A. Burgos on May 25, 2005. Appellee filed a motion to dismiss on June 7, 2005 and answer…
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HAZOURI, J.
Appellants, Richard Burgos and Duran Schmidt, appeal from the trial court’s order granting attorney’s fees to appellee, Jose A. Burgos, pursuant to section 57.105, Florida Statutes (2005). We reverse.
Appellants filed a complaint for defamation against appellee on May 25, 2005. Appellee filed a motion to dismiss on June 7, 2005. Appellee filed his Answer and Affirmative Defenses on June 14, 2005. In the Answer, after denying the allegations, appellee requested the court to set the case for trial and “award attorney’s fees pursuant to F.S. 57.105.” Appellee asserted truth as his affirmative defense.
On January 20, 2006, appellants filed their Notice of Voluntary Dismissal which had been faxed and mailed to appellee’s attorney on January 12, 2006.
On January 23, 2006, appellee filed his Motion for Attorney’s Fees alleging that “this matter clearly had no justiciable issues” and requested fees under section 57.105, Florida Statutes. The trial court granted the appellee’s request for attorney’s fees, awarding fees in the amount of $1,280.
Section 57.105(4), Florida Statutes (2005), 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.”
In Vanderpol v. Frengut, 932 So. 2d 1251 (Fla. 4th DCA 2006) (quoting Maxwell Building Corp. v. Euro Concepts, LLC, 874 So. 2d 709, 711 (Fla. 4th DCA 2004)), this court stated:
The primary purpose of section 57.105(4) is not to spring a procedural trap on the unwary so that valid claims are lost. Rather, its function is to give a pleader a last clear chance to withdraw a frivolous claim or defense within the scope of subsection (1) or to reconsider a tactic taken primarily for the purpose of unreasonable delay under subsection (3). Having the parties police themselves, instead of requiring judicial intervention on section 57.105 issues, promotes judicial economy and minimizes litigation costs.
Vanderpol, 932 So. 2d at 1253.
The appellee failed to comply with the requirements of section 57.105(4). Therefore, the trial court erred in granting attorney’s fees under section 57.105. We reverse with directions that the trial court vacate the order awarding attorney’s fees.
Reversed with Directions.
GUNTHER and POLEN, JJ., concur.
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Davidson v. Abel Ramirez, 970 So. 2d 855 (Fla. 3d DCA 2007)…warded attorney’s fees to the defendant, and the plaintiff has appealed. 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, with…
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Montgomery v. Larmoyeux, 14 So. 3d 1067 (Fla. 4th DCA 2009)…5(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 days after the filing of a motion of voluntary dismissal upon…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Maxwell Bldg. Corp. v. Euro Concepts, LLC, 874 So. 2d 709 (Fla. 4th DCA 2004)
- Vanderpol v. Frengut, 932 So. 2d 1251 (Fla. 4th DCA 2006)