ZAIDA LAGO, JULIO LAGO, JUAN CARLOS LAGO AND ALBERTO N. MORIS, P.A., APPELLANTS,
v.
KAME BY DESIGN, LLC, APPELLEE

Fla. 4th DCA | 2013-08-07
No. 4D12-3838
TAYLOR, LEVINE and FORST, JJ., concur.
120 So. 3d 73 Florida District Court of Appeal, Fourth District (2013) Positive Treatment
Cited by 36 cases

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.

Holding

A subsequent motion for sanctions raising new arguments must independently comply with the 21-day safe harbor provision.

Headnotes

[1] A subsequent or amended motion for sanctions under section 57.105, Florida Statutes, that raises a new argument not present in the original motion must independently comp…

[2] Failure to comply with the twenty-one-day "safe harbor" provision of section 57.105(4), Florida Statutes, requires reversal of an order granting a motion for sanctions.

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
Facts & Procedural History

Appellants sought attorney's fees, and appellee moved for sanctions under section 57.105, alleging the fee motion was frivolous. The trial court grant…

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.

Topics
Waiver Of Attorney'S Fees Abuse Of Discretion (Standard Of Review) Abuse Of Discretion Standard Of Review

Explore caselaw by topic → Browse Waiver Of Attorney'S Fees cases and more on FLexlaw

Opinion of the Court
PER CURIAM.

PER CURIAM.

The defendants below, Zaida Lago, Julio Lago, and Juan Carlos Lago, and their counsel, Alberto N. Moris, P.A., (collectively “appellants”) seek review of a final judgment awarding fees and costs against them pursuant to section 57.105(1), Florida Statutes. The final judgment imposed sanctions against appellants for filing a motion for attorney’s fees that the trial court found was not supported by the material facts or the application of then-existing law to those material facts. We reverse the final judgment as to all appellants and remand for further proceedings.

Generally, the standard of review of a trial court’s order awarding section 57.105(1) attorney’s fees is abuse of discretion. Ferere v. Shure, 65 So.3d 1141, 1144 (Fla. 4th DCA 2011). However, to the extent a trial court’s order on fees is based on an issue of law, this court applies de novo review. Id.

Here, appellee’s first motion for section 57.105sanctions alleged that the Lagos’s fee motion was frivolous because there was no contractual or statutory basis for the Lagos to recover an award of attorney’s fees. Appellee’s second motion for section 57.105sanctions included the same arguments as the first motion, but also raised the additional argument that under Stockman v. Downs, 573 So.2d 835 (Fla.1991), the Lagos had waived any right to recover attorney’s fees by failing to request attorney’s fees in a pleading.

The trial court entered an order granting appellee’s second motion for section 57.105 sanctions and imposing sanctions against appellants. However, because appellee’s second motion for section 57.105sanctions did not comply with the twenty-one-day “safe harbor” provision of section 57.105(4), the trial court erred in granting that motion. We must therefore reverse. See § 57.105(4), Fla. Stat. (2012) (“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 correct*75ed.”); Burgos v. Burgos, 948 So.2d 918, 919 (Fla. 4th DCA 2007) (a party’s failure to comply with the requirements of the 21-day “safe harbor” provision of section 57.105(4) requires reversal of an order granting a motion for sanctions under section 57.105).

We hold that if a party files a subsequent or amended motion for sanctions under section 57.105 and raises an argument that was not raised in the original motion for section 57.105 sanctions, the subsequent motion must independently comply with the twenty-one-day “safe harbor” provision of section 57.105(4). To hold otherwise would allow a party to raise a new ground for sanctions in a subsequent motion under section 57.105 without giving the other side the opportunity to withdraw the offending claim or defense within twenty-one days after receiving notice of the new ground for sanctions.

Nonetheless, on remand, the trial court may consider appellee’s first motion for section 57.105 sanctions.1 That motion did comply with section 57.105(4)’s safe harbor provision, but the trial court never ruled on it. The trial court may consider only the grounds alleged in appellee’s first motion for section 57.105 sanctions. Furthermore, if the trial court concludes that an award of fees under section 57.105 is an appropriate sanction, “it should recite in its order the facts upon which it bases that conclusion. Regions Bank v. Gad, 102 So.3d 666, 667 (Fla. 1st DCA 2012).

For the foregoing reasons, we reverse and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

TAYLOR, LEVINE and FORST, JJ., concur.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By (23 total)

  • Blue Infiniti, LLC v. Wilson, 170 So. 3d 136 (Fla. 4th DCA 2015)
    …of review of a trial court’s order awarding section 57.105(1) attorney’s fees is abuse of discretion. However, to the extent a trial court’s order on fees is based on an issue of law, this court applies de novo review.” Lago v. Kame By Design, LLC, 120 So. 3d 73, 74 (Fla. 4th DCA 2013) (citing Ferere v. Shure, 65 So. 3d 1141, 1144 (Fla. 4th DCA 2011)) (internal citation omitted). [*140] The trial court’s order imposed attorney’s fees against both Blue Infiniti and its attorney in equal amounts. Section 57.1…
  • Fla. Cmty. Bank, N.A. v. RED Rd. Residential, LLC, 197 So. 3d 1112 (Fla. 3d DCA 2016)
    …her a prevailing party is entitled to attorney’s fees based on an interpretation of the fee provision in the subject mortgage and the corresponding application of section 57.105(7)), we review the final judgment de novo. Lago v. Kame By Design, LLC, 120 So. 3d 73, 74 (Fla. 4th DCA 2013). III. Analysis As is typical in most mortgages, the fee provision in the subject mortgage plainly entitles the Bank, as mortgagee, to the recovery of its attorney’s fees if the borrower defaults on the note secured by the m…
  • Matte v. Caplan, 140 So. 3d 686 (Fla. 4th DCA 2014)
    …e 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(4), Fla. Stat. (2013); see, e.g., Lago v. Kame By Design, LLC, 120 So. 3d 73, 75 (Fla. 4th DCA 2013) (referring to this subsection as the “safe harbor” provision). With the advent of electronic filing and the use of e-mail for service, the Rules of Civil Procedure and Judicial Administration have been amended to provide the…

Previewing 3 of 23 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw