Most Florida attorneys are aware of Florida Statute § 57.105 and the initial procedure through which one party may seek to have a non-meritorious claim, defense, or action withdrawn or dismissed by the opposing party. The statute provides:
(1) 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.
However, the statute also contains a ‘good-faith’ exception regarding otherwise such non-meritorious claims or defenses, where the statute provides:
(3) Notwithstanding subsections (1) … monetary sanctions may not be awarded:
(a) Under paragraph (1)(b) if the court determines that the claim or defense was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success.
Typically, the procedure through which one party may seek to impose sanctions upon the opposing party if such claim or defense is not withdrawn or dismissed would be to send a letter or other written communication, along with a draft motion, to the opposing party and/or their attorney (if represented), identifying the claim or defense the moving party asserts is not supported by material facts or application of then-existing law to such facts. The statute then provides the opposing party with a 21-day window of time within which to withdraw or dismiss the claim or defense, as follows:
(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21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.
The decision to serve the sanction motions is not one that should be taken lightly, as would be the decision to actually file and then pursue attorney’s fees as sanctions, as same will need to be made with consultation and approval of the client based upon each case’s facts and circumstances. The service of this letter and motion alone does not always mean the opponent’s claim or defense lacks factual or legal merit. However, if the opponent decides not to withdraw or dismiss the claim or defense within the 21-day ‘safe-harbor’ window, the moving party may decide to file the sanctions motion of record as the procedural threshold necessary should they later seek sanctions.
So, what happens if the opponent later withdraws the claim/defense or dismisses the action? In the situation where the opponent dismissed their case without prejudice, the Florida Supreme Court held the lower court retains jurisdiction to hear the sanctions motion. See Pino v. Bank of New York, 121 So.3d 23 (Fla. 2013). Assuming your client wants you to move forward wit seeking sanctions, what are the next steps beyond simply filing the motion?
Naturally, the moving party will need to request a hearing on the sanctions motion. At that hearing, the moving party bears the burden of establishing entitlement to their attorney’s fees as sanctions. The finding of entitlement to such fees must be based upon “substantial competent evidence presented at the hearing … or otherwise before the court and in the record.” Mason v. Highlands County Board of County Comm’rs., 817 So.2d 922, 923 (Fla. 2d DCA 2002). If the moving party sustains their initial evidentiary burden, then if the opposing party seeks to avoid sanctions through the ‘good faith’ exception, the opposing party then must meet the same ‘substantial competent evidence’ standard regarding their argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success. See MC Liberty Express, Inc. v. All Points Servs., 252 So.3d 397 (Fla. 3d DCA 2018).
If the moving party ultimately sustains their burden and demonstates the opposing party pursued such a non-meritorious claim or defense, Florida Statute §57.105 then “mandates the court to award fees to the prevailing party.” DeVaux v. Westwood Baptist Church, 953 So.2d 677, 684 (Fla. 1st DCA 2007). Thereafter, the moving party will need to proffer evidence, such as an affidavit by the moving party’s attorney with their supporting time keeping records. The amount of fees that can be awarded is usually only those fees incurred from the date of filing of the sanctions motion through the date the non-meritorious claim or defense was withdrawn or the action dismissed. See Injury Centers of South Tampa, Inc. v. Geico Indemn. Co., 25 Fla. L. Weekly Supp.487a (Dade County Aug. 14, 2017). Finally, unless the parties first resolve the amount of the attorney’s fees between themselves, a second hearing on the amount of fees then will typically be required, at which the parties may also proffer evidence from an expert attorney that supports a reasonableness determination.
Florida Statute § 57.105 provides a compelling procedure through which a party may challenge what it perceives to be a non-meritorious claim or defense, with the opposing party having to decide whether to continue pursuit of such claim or defense, or risk imposition of future attorney’s fees, should a court later decide that claim or defense lacked factual or legal merit.