Arbitration & Mediation

Fourth DCA Holds Prematurely Filed 57.105 Motion is Not Valid Under F.S. 57.105(4)

By Christopher B. Hopkins, Esq.

The Fourth District ruled that a Motion for Sanctions under Florida Statute 57.105 must be served on the opposing side 21 days before filing, pursuant to the "safe harbor" provision, and the fact that the motion was not heard until months after will not satisfy the strictly construed statutory requirement.

The dispute in Mary M. Montgomery and Bill T. Smith, Jr. as Personal Representatives of Robert M. Montgomery, Jr., Beasley Hauser et al. v. Christopher Larmoyeux, Jr., Eric Hewko et al. arises from an ongoing dispute between two West Palm Beach lawyers dating back nearly a decade. The parties had battled it out in arbitration, various trial courts, and all levels of Florida appellate courts.

The conclusion by the Panel (Hazouri, Farmer, and Taylor) may seem rudimentary but there is some practical guidance in the opinion for Florida lawyers.

In this case, the plaintiff brought claims of conspiracy and fraud (among other claims) but never sought to unearth any evidence of those torts and ultimately dismissed the case. The defendants separately served and filed 57.105 motions however one defendant filed the motion only a few days after serving it. Under Florida Statute 57.105(4), the motion "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 claim... is not withdrawn or appropriately corrected."

On appeal, that defendant admitted the technical timing violation but argued that the motion was not heard for weeks and the plaintiff still had time to withdraw or correct the claims and thus still essentially had the benefit of the safe harbor provision.

The Fourth DCA held -- not surprisingly -- that 57.105 must be strictly construed and a prematurely filed motion was invalid. Notably, the court relied on the recent Third DCA case, Anchor Towing v. Dept. of Transportion, which held that serving a warning letter, without a copy of the motion, did not satisfy that same statutory provision.

Finally, the Fourth brings up an interesting practical point on 57.105 motions. If a plaintiff brings a complaint, the defendant attacks a count with a 57.105 motion, and the plaintiff later amends the complaint but still keeps the subject count, the defendant does not need to re-serve a new 57.105 motion.

Full post as published by Florida Arbitration Law on September 15, 2009 (boomark / email).