DAN PRONMAN, GARY PRONMAN AND MARK P. BOCKSTEIN, APPELLANTS,
v.
BRIAN STYLES AND MOVIE STAR MUSCLECARS, INC., A FOREIGN CORPORATION, APPELLEES
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The Fourth District Court of Appeal affirmed a trial court's award of attorney's fees under Fla. Stat. § 57.105 against appellants for asserting a frivolous venue and jurisdiction defense, but reversed the award of costs as not permitted under the statute. The case addressed whether an attorney can be jointly liable for fees under the post-1999 version of § 57.105 without express bad faith findings.
The court affirmed that the motion to dismiss was frivolous and unsupported by facts and law, and that attorney's fees were properly awarded against both the parties and their counsel under the current version of § 57.105 without requiring express bad faith findings. The court reversed the costs award because § 57.105 does not provide a mechanism for recovering costs.
[1] A trial court abuses its discretion in awarding attorney's fees under section 57.105 of the Florida Statutes if the challenged motion or defense was supported by material…
[2] Under section 57.105 of the Florida Statutes, a court shall award attorney's fees if the losing party or their attorney knew or should have known that a claim or defense…
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Join FLexlaw to unlock all legal intelligence“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.”
States the statutory standard under § 57.105(1) for awarding attorney's fees, which the court applied to hold both the parties and their attorney liable.
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Join FLexlaw to unlock all legal intelligenceStyles sued the Pronmans and their corporate entity regarding a contract dispute in Broward County Circuit Court. The Pronmans filed a motion to dismi…
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This is an appeal from a fees and costs judgment awarded mid-litigation in conjunction with a motion filed pursuant to section 57.105 of the Florida Statutes. Appellants, Dan Pronman, Gary Pronman, and their original attorney, Mark Bock-stein (collectively “Appellants”), appeal the trial court’s award of attorney’s fees and costs against them and in favor of Appel-lee, Brian Styles. Appellants raise a number of issues. We affirm the fees award and reverse the costs award.
The case began with a dispute between Styles and a corporate entity controlled by the Pronmans. The dispute resulted in Styles filing a lawsuit against the Pron-mans and their corporate entity in the Broward County Circuit Court. What should have been a routine contract dispute quickly deteriorated into a knockdown, drag-out fight over a challenge to venue and jurisdiction as asserted by the Pronmans in a motion to dismiss. In their motion, the Pronmans represented that they had no ties to Broward County and they and their corporate entity did business only in Canada.
Without burdening this opinion with all of the factual details, Appellants vociferously tried to avoid discovery relating to venue, despite their own admissions to the court that venue and jurisdiction were contested. Specifically, Appellants filed objections and motions for protective orders with the court and refused to answer interrogatories and deposition questions regarding where the Pronmans resided and conducted business. As was ultimately adduced from discovery, the overwhelming evidence established that the Pronmans and their corporate entity conducted their business in Broward County, Florida.
While the trial court was dealing with the then pending venue issue, Styles’ attorney served Appellants with a Motion for Attorney’s Fees and Costs pursuant to section 57.105 of the Florida Statutes, arguing that the venue argument asserted by the Pronmans was without basis in law or fact. The motion also noted that “after objecting to venue in the Motion, [Appellants] then objected to Plaintiffs discovery addressing factual issues concerning venue which would be necessary for affidavits or an evidentiary hearing on venue.” Styles maintained that these discovery objections served “no purpose but to unreasonably delay this proceeding” and thus requested an award of attorney’s fees. After the 21-day safe harbor period expired,1 Styles filed his motion for fees and costs with the court. Appellants ultimately abandoned, what was later determined to be, their meritless jurisdiction/venue defense.
•The trial court conducted a hearing on the fees motion. At the hearing, Styles’ attorney argued that although Appellants knew the jurisdiction/venue defense raised in their motion to dismiss was unfounded, they refused to withdraw the motion for ten months, and during that time obstructed discovery requests that were directed at the very defense Appellants’ asserted. After considering the parties’ arguments, the court awarded Styles his fees and costs after concluding that Appellants’ motion to dismiss and their actions taken in response to discovery had no basis in law or fact. The court held three subsequent evidentia-*537ry hearings concerning the proper amount of fees, after which it awarded Styles $11,942 in equal parts against Appellants. The court reserved jurisdiction to enter costs. This appeal followed.
“The standard of review of a trial court's order awarding section 57.105(1) attorney’s fees is an abuse of discretion. That is, this Court looks to see if the trial court abused its discretion in finding no justiciable issues of fact or law.” Puglisi v. Puglisi, 135 So.3d 1146, 1147 (Fla. 5th DCA 2014) (internal citations omitted).
Appellants first argue that the trial court erred in determining that their motion to dismiss for improper venue and on jurisdictional grounds was without merit.
Section 57.105 of the Florida Statutes provides that a court shall award fees to the prevailing party if it 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.
§ 57.105(1)(a)-(b), Fla. Stat. (2010). Therefore, a court abuses its discretion in awarding fees in conjunction with a losing motion to dismiss under section 57.105 only if the “motion to dismiss was supported by material facts or the application of existing law.” Gahn v. Holiday Prop. Bond, Ltd., 826 So.2d 423, 426 (Fla. 2d DCA 2002).
We conclude, based on the competent and substantial evidence in the record, that the trial court correctly determined that Appellants’ motion to dismiss and the 'arguments in support thereof were unsupported by the facts and the law, and that Appellants knew or should have known that the motion to dismiss had no merit. To add insult to injury, Appellants continually objected to discovery requests, the very subject of which was directed to the issues raised in Appellants’ motion to dismiss.
Appellants next argue that the trial court erred when it found the Pronmans’ original counsel, Mark Bockstein, jointly liable for the fee award without making an express finding that there, was no justicia-ble issue and that the attorney was not acting in good faith based upon the representations of his client. Styles concedes that there were no such express findings, but points out that the court did find that the venue defense was not supported by material facts and that Mr. Bockstein “knew or should have known this to be the case at the time the defense was raised.”
Appellants are correct that there is a large body of case law requiring a court to make specific bad faith findings before it holds an attorney liable for fees under section 57.105. For example, in Ferdie v. Isaacson, 8 So.3d 1246 (Fla. 4th DCA 2009), we explained:
When a trial court imposes liability against counsel for a fee award entered under section 57.105, it “must make [1] an express finding that the claim was frivolous and, ... [2] an express finding that the attorney was not acting in good faith based upon the representations of his client.”
Id. at 1250 (quoting Perlman v. Ameriquest Mortg. Co., 987 So.2d 1292, 1292 (Fla. 4th DCA 2008)).
■ While Perlman and its progeny were good law under a pre-19992 version of the *538statute, we are compelled to recede from our holding in these cases because the statute was amended in 1999 to state:
Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest,. 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.
§ 57.105(1)(a)-(2), Fla. Stat. (2010) (emphasis added).3
Here, the trial court’s order found that “the Defendants’ motion to dismiss objection to this Court’s jurisdiction and venue was not supported by the facts, and the Defendants and their counsel, Mark P. Bockstein, knew or should have known this to be the case at the time the defense was raised.” Thus, the trial court’s order complies with the plain direction provided in the current version of section 57.105. See Badgley v. Suntrust Mortg., Inc., 134 So.3d 559, 561 (Fla. 5th DCA 2014) (affirming trial court’s award of 57.105 fees against a plaintiff and her attorney based on the court’s findings that the plaintiff and her attorney knew or should have known the claim was not supported by the material facts or application of the then-existing law).
Finally, Appellants argue that the award of Styles’ costs was error. Styles concedes error as section 57.105 does not provide a mechanism for recovering costs. Santini v. Cleveland Clinic Fla., 65 So.3d 22, 37 (Fla. 4th DCA 2011) (section 57.105 does not allow for the recovery of costs). Accordingly, we reverse and instruct the trial court to strike the provision in the fee judgment reserving jurisdiction to award costs. We affirm in all other respects.
Affirmed in Part; Reversed in Part and Remanded.
WARNER, STEVENSON, GROSS, TAYLOR, MAY, CIKLIN, GERBER, LEVINE, CONNER, FORST and KLINGENSMITH, JJ., concur.
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Grand Reserve AT Tampa Condo. Ass'n, Inc. v. HSBC Bank USA, 189 So. 3d 187 (Fla. 2d DCA 2016)…one. • Upon concession of error by Appellee,- we reverse the imposition of: costs the circuit court awarded .under section 57.105, Florida Statutes (2014), as this statute “does not provide a mechanism for recovering , costs.” See Pronman v. Styles, 163 So. 3d 535, 538 (Fla. 4th DCA 2015) (citing Santini v. Cleveland Clinic Fla., 65 So. 3d 22, 37 (Fla. 4th DCA 2011)). We remand this case for the court to strike the provision of costs from its order. Affirmed in part, reversed in part, and remanded with inst…
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Dario Ayala v. Interavia Spares & Servs., Inc., 350 So. 3d 388 (Fla. 4th DCA 2022)…have known that a claim or defense … (a) [w]as not supported by the material facts necessary to establish the claim or defense; or (b) [w]ould not be supported by the application of then-existing law to those material facts.” See Pronman v. Styles, 163 So. 3d 535, 537– 38 (Fla. 4th DCA 2015) (affirming trial court’s order awarding fees under section 57.105 because it contained the finding that defendant’s counsel knew or should have known claims were not supported by the record facts). Appellee requested th…
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MD Now Med. Ctrs., Inc. v. Auto-Owners Ins. Co. (15th Cir. Ct. App. Div. 2017)…versible error as section 57.105 only provides for the award of attorney’s fees as sanctions and “makes no mention of costs.” Ferdie v. Isaacson, 8 So. 3d 1246, 1251 (Fla. 4th DCA 2009); see § 57.105, Fla. Stat. (2017). See also Pronman v. Styles, 163 So. 3d 535, 538 (Fla. 4th DCA 2015) (costs are not awardable under section 57.105). Accordingly, we REVERSE the trial court’s award of attorney’s fees, interest, and costs in favor of Defendant. CHEESMAN and COATES, JJ., concur. HAFELE, J., concurs in result…
Authorities Cited
- Roberta Santini, M.D. v. Cleveland Clinic Fla., 65 So. 3d 22 (Fla. 4th DCA 2011)
- Gahn v. Holiday Prop. Bond, Ltd., 826 So. 2d 423 (Fla. 2d DCA 2002)
- Ainslee R. Ferdie, Law Offs. of Ainslee R. Ferdie, & Ferdie & Lones, Chartered v. Isaacson, 8 So. 3d 1246 (Fla. 4th DCA 2009)
- Puglisi v. Puglisi, 135 So. 3d 1146 (Fla. 5th DCA 2014)
- Perlman v. Ameriquest Mortg. Co., 987 So. 2d 1292 (Fla. 4th DCA 2008)
- Clark v. State, 134 So. 3d 559 (Fla. 5th DCA 2014)
- Badgley v. Suntrust Mortg., Inc., 134 So. 3d 559 (Fla. 5th DCA 2014)