TRIAL COURT ABUSED ITS DISCRETION IN DENYING MOTION FOR 57.105 SANCTIONS–THERE IS NO EXCEPTION FOR AN ATTORNEY WHO FEARS DROPPING A CLAIM WHICH THE ATTORNEY COMES TO UNDERSTAND IS NOT LEGALLY SUPPORTED, SIMPLY BECAUSE THE ATTORNEY HAS NOT HAD AN OPPORTUNITY TO CONSULT WITH THE CLIENT.

Rickard v. Nature’s Sleep Factory, 43 Fla. L. Weekly D2438 (Fla. 4th DCA October 31, 2018):

A supplier sued the defendant, Nature’s Sleep Factory, and two other defendants for breach of contract. The defendants filed an answer, affirmative defenses and a counter-claim. At the beginning of the trial, the supplier announced a voluntary dismissal of its claims against the attorney and another defendant.

In light of that dismissal, the defendants served a motion for prevailing party fees and costs. The next business day, the supplier filed a response, and served–without filing–a motion for 57.105 fees, addressing defendants’ failure to timely plead entitlement to fees as required.

Pursuant to section 57.105, the supplier filed a sanctions motion, and a hearing was scheduled. A few days before the hearing and 23 days after the safe harbor period had expired, the defendants withdrew their motion for fees and cost.

The defendants conceded that the attorney’s fees motion was meritless, agreeing they had not been timely pled. The attorney explained that he could not get approval to revoke the motion during the safe harbor period, because his client was out of the country and unreachable.

At the hearing, the trial court observed that the request for fees for 4.65 hours at $450.00 an hour was reasonable, but stated that she hated these motions, and acknowledged that appellate courts look at them strictly. Still, the judge subsequently rendered an order denying the motion for sanctions.

Because the law was clear cut here, and because the 21-day safe harbor period expired (even though defendants withdrew their motion before the sanctions hearing), it was not enough.

Here, the attorney’s unsworn statements about the client’s absence from the country did not constitute evidence (these motions need sworn evidence), and the ability to reach one’s client is not an excuse for the requirement to withdraw a frivolous motion pursuant to section 57.105, because officers of the court have a duty to withdraw admittedly non-meritorious motions with or without a client’s permission.

Because the supplier timely and properly filed a motion in accordance with section 57.105, the trial court lacked the discretion to deny the motion beyond the exceptions noted in 57.105 (3), where the statute clearly states that the court shall award a reasonable fee.