Why Most Attorneys Are Doing it Wrong & Why that Matters

Ah the dreaded 57.105; the moment you receive one, your heart sinks in your chest. However, should you find yourself in the precarious position of receiving a 57.105, take comfort in a few simple facts.

First, a 57.105 (or “Motion for Sanctions”) can only be granted in limited situations. The The statute provides that a Motion for sanctions should be granted where a motion or pleading: (a) was not supported by 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. When considering what that means in reality it is pretty hard to establish. The claim has to be completely unsupported by the record facts and/or completely unsupported by the law. The statute even provides that sanctions cannot be award where either counsel is relying in good faith on representations from her client (regarding the material facts) or counsel is making a good faith claim for extension, modification, or reversal of existing law or the establishment of new law. So, rest easy that you have to really drop the ball for this Section to apply (although the way some attorney’s serve these, you’d be hard pressed to believe it).

Second, a 57.105 Motion will be completely insufficient if the party who is seeking attorney’s fees under that section has failed to comply with the “safe harbor provision” contained in subsection (4) of the statute. If you did not receive a “Motion for Sanctions” twenty-one (21) days before the motion was filed with the Court: the Court cannot grant the Motion.

Third, and somewhat related to the notice: the statute is strictly construed because it is in derogation of common law. See Global Xtreme, Inc. v. Advanced Aircraft Center, Inc., 122 So. 3d 487, 490 (Fla. 3d DCA 2013). Accordingly, safe harbor notice that must be sent has to comply with certain requirements. For instance: a safe harbor “letter” advising you that opposing counsel will file a 57.105 motion for sanctions is completely insufficient. See Anchor Towing, Inc. v. Fla. Dept. of Transp., 10 So. 3d 670, 672 (Fla. 3d DCA 2009) (reversing an award of sanctions where the “safe harbor notice” was a letter, even though the letter complied with all the statutory requirements). In addition to the requirement of service of an actual motion, not just a letter – the motion must be served in accordance with Rule 2.516 of the Rules of Judicial Administration.

See Matt v. Caplan, 140 So. 3d 686 (Fla. 4th DCA 2014). This means that it must: (1) be emailed; (2) if an attachment, it must be in pdf form; (3) the subject line must being “SERVICE OF COURT DOCUMENT” in all capital letters and thereafter state the case number, and style; (4) the body of the email must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of each document served with that e-mail, and the name and telephone number of the person required to serve the document; (5) a signature in one of these forms “/s/”, “/s” or “s/”; (6) meet the size limitations specified in the Florida Supreme Court Standards for Electronic Access to the Court. Id. Failure to meet these requirements renders the notice deficient and precludes an award of fees under the Statute. Id. In my experience, it is rare to find an attorney that has complied with these strict requirements in serving their “safe harbor notice” – yet we still shutter at the receipt of a 57.105 notice.

The long and short is: next time you receive a safe harbor notice, take note of whether Section 57.105, Florida Statutes has been strictly complied with by the opposing party. If the answer is no, the chance of an award of fees is almost nil. However, don’t feel too safe: A court has the inherent power to award attorney’s fees as a sanction under Fla. Stat. 57.105(1) without notice where the pleading meets the requirements of (1)(a) or (1)(b). See HFC Collection Center, Inc. v. Alexander, 190 So. 3d 1114, 1120-21 (Fla. 5th DCA 2016) (remanding to the trial court to determine whether imposition of fees was appropriate, notwithstanding deficient safe harbor notice, under the authority of 57.105(1)).

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