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Saturday, January 13, 2018
Violence, Protective Injunctions, and M-O-N-E-Y, the Florida Supreme Court weighs in .....
THE CAPTAIN REPORTS:
QUERY: Is Florida Statute 784.046, the statute most criminal defense attorneys know as the: ACTION BY VICTIM OF REPEAT VIOLENCE, SEXUAL VIOLENCE, OR DATING VIOLENCE FOR PROTECTIVE INJUNCTION, a civil proceeding or action?
The Florida Supreme Court weighed in on that question this week in the case of Lopez v Hall. In a 4-3 decision the majority answered YES, and with that answer, opened the floodgates for attorney fees to be obtained against a losing party under certain circumstances in these kinds of cases.
Most of us who dwell in the house of GJB and who have never ventured outside those protective walls to say the courthouse over at 73 West Flagler Street, have never even heard of F.S. 57.105. A favorite tool of our civil brethren, it spells out their favorite five letter word - M-O-N-E-Y.
We have all had that male client walk through our office door telling us that they had just been served with a Temporary Injunction and that the allegations were all false. Sometimes we prepare an all out defense, other times, for strategic reasons, we determine, after hearing all of the facts, that it is simply best to agree to the Injunction rather than fight it. So, we advise the client to accept the terms of the RO without admitting to any of the facts.
In Lopez v. Hall, Nicole Lopez filed a Petition for protection against Sean Hall. She swore out her allegations and received a temporary injunction. Hall, through counsel, filed a Motion, pursuant to 57.105, for attorneys fees claiming that Lopez had perjured herself in her petition. Lopez eventually dropped her action. Hall sought fees in the trial court, but the trial court judge denied the request finding that 57.105 did not apply. The First DCA reversed holding that the awarding of 57.105 attorneys fees did apply. And, the Florida Supreme Court agreed.
So, the next time your hero walks through the door, and says "none of it is true", you will now be able to tell him that not only will you be happy to fight for him, but you may also be able to secure him attorneys fees. F.S. 57.105 does state that:
1. It can be filed by motion of any party
2. On any claim or defense at any time during the civil proceeding or action
3. When the court finds that the losing party or the losing party’s attorney "knew or should have known" that a claim or defense was "not supported by the material facts".
Make sure you read the statute carefully as there are certain other requirements in order to be successful and collect fees. There is a notice provision requiring you to serve the motion on your opponent, and give them 21 days to withdraw or correct a baseless claim or defense, before you can go ahead and file your motion with the court and set it for a hearing.
Former Chief Justice Pariente wrote the dissent and she was joined by the only other female on the court (Justice Quince) as well as the current CJ Labarga. They, along with Howard Simon of the ACLU and other women’s groups are all concerned about the fallout of this opinion as it relates to protecting women from violence.
We expect a bill will be filed very soon in Tallahassee in an attempt to eliminate the 57.105 tool from the war chest of men who wish to scare off women from filing these kinds of restraining orders.
Coming on Monday, another post about M-O-N-E-Y as we hear from two of our favs, Judge Soto and Judge Sayfie..
Happy MLK Weekend. Be smart (take MM’s advice and curl up on the sofa with a good book) and stay off the streets lest you find yourself trapped among hundred of two and three wheeled bikers who have made it a yearly MLK weekend tradition of scaring the bejeezers out of the traveling public.
CAPTAIN OUT .......