Arbitration & Mediation

F.S. 57.105's 21-Day "Safe Habor" Provision Applies for Motions, Not Cases, Filed after July 1, 2002

By Christopher B. Hopkins, Esq.

Another day, another Florida state court opinion shooting down either a 57.105 Motion for Sanctions or invalidating a Proposal for Settlement. For practitioners, defending AGAINST these motions has always been a serious matter, given the consequences. Over the last few years, PURSUING such motions has become so burdensome and unlikely that it is hard to strongly encourage them to a client, since the risk of success seems so daunting. The cost of the motion, affidavits, hearings, and appeals should not be lost on court watchers.

Enter the case of Frank W. Kenniasty et al. v. Bionetics Corporation et al., which has a long procedural history dating back to its inception in 2001. A Motion for Sanctions, under Florida Statute 57.105, was filed in March 2003 without the 21-day warning letter as required under section 57.105(4), Florida Statutes. Was it valid?

The answer is no. The 21-day letter requirement/safe harbor provision in s. 57.105(4) became effective July 1, 2002. The Fifth District (Griffin, Pleus, and Torpy) held that the 7/1/02 date applied to the filing of the Motion for Sanctions, not the filing of the lawsuit. In this case, the suit was filed in 2001 while motion was filed nearly a year later in 2003 -- it was defective since the motion was filed after July 1, 2002 without the 21-day letter.

Full post as published by Florida Arbitration Law on January 24, 2009 (boomark / email).