When you see something that is not right, not fair, find a way to get in the way and cause trouble. Congressman John Lewis
JUSTICE BUILDING BLOG
WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM. Winner of the prestigious Cushing Left Anterior Descending Artery Award.
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 .......
Captain4Justice@gmail.com
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12 comments:
Eh. Much ado about nothing. As anyone who practices in civil court knows, judges rarely grant motions for sanctions pursuant to 57.105.
Regardless, there are three key aspects of the statute that attorneys should be aware of. First, 57.105 applies to both sides and may be filed for all sorts of claims (including motions). Second, the 21 day safe harbor period obviates a lot of the concerns you raised (ie. a party can avoid sanctions by withdrawing any specious claims during that period and the court won't be able to impose any sanctions). Third, when ordered, the sanctions are paid in equal part by the offending party AND THEIR ATTORNEY. Yes, that's correct. If you, as an attorney, file a bad faith claim, you can be held accountable.
In my opinion, the statute is a great safeguard against the types of specious claims we've all seen in criminal, family, civil, juvenile, etc. and there SHOULD be penalties for acting in bad faith.
BTDT
PS----an incorrect statement alone does not a bad claim make.
So, I get a speeding ticket and the cops doesn't show up, so I win.
Does this mean I should have put the police on notice by 57.105 and then, I get attorney's fees?
Finally, those bozo ticket lawyers (they folks who have no idea if you have a defense) will get more than $49.00 per case!!!!
BTDT:
How can you possibly explain how the majority manages to ignore the fact that FS 784.046 is found within Title 46 - CRIMES, and Chapter 784 ASSAULT; BATTERY; CULPABLE NEGLIGENCE - and they find that this is a CIVIL matter. How ridiculous can you get. Talk about the plain meaning. 57.105 should never apply to this statute.
Sorry. Let me be clear. I wasn't talking about whether the court ruled properly; I was just commenting on the concern re 57.105's. I should have been more clear about that.
BTDT
I like atty fees in this matter because so many frivolous matters are filed. It may have a chilling action, but I would prefer to believe judges will exercise their discretion carefully. (Yes, I'm hopeful judges will do it right).
And don't forget to serve the "safe harbor" letter 57.105 requires, and make sure you do it correctly or you won't get anything.
Yes, Rumpole knows atty fees. Weird, but true.
The Justice Building misses Judge Hanzman.
He is the smartest, most effective and kindest Judge to all that the building has seen in 30 years.
Please Sir. Come back to your Calling.
More digital courtrooms coming soon to the REGJB. Oh, where have all the court reporter's gone. Any comments on this from the justice building regulars? Good luck getting some of those old plea colloquies.
Judge Hanzman. Please come back. Thank you.
Rump: There is no such thing as a "'safe harbor' letter." You serve the motion (not a letter) without filing it. Then, after the safe harbor period expires, you file the motion with an updated cert of service.
1038...........most people in civil typically send safe harbor letters when they serve 57.105's because so many attorneys are unfamiliar with the rule.
BTDT
A 57.105(4) motion is essentially a Motion for Judgement on the Pleadings or Summary Judgement. The safe harbor letter is just the cover letter transmitting the motion and saying I am going to file it 21 days. An improvidently filed 57.105 can have consequences for the filer under 57.105(2). 57.105(1) gives court discretion to grant fees on its own volition without a motion under 57.105(4). Moakley v. Smallwood, 826 So. 2d 221 (Fla. 2002) is very similar to 57.105 and provides for the court with discretion to grant fees if it finds there was bad faith at any level of the case such as harassing, oppressive or dilatory motion or discovery tactics whether the complaint or answer is frivolous. Moakley can serve as a vehicle when a reasonable settlement offer is unwisely rejected and expensive litigation continues if the court finds the unnecessary litigation expenses did not serve any beneficial purpose such as improve the parameter of the settlement. I believe Moakley can serve as a vehicle to seek fees in a criminal case in which the evidence is weak or in dispute such that the State cannot satisfiy its burden of proof. In the criminal arena I beleive self defense immunity cases are candidates for Moakely motions. Moakely also serves as a basis to seek fees for a meritless 57.105 or one filed in bad faith. 57.015 can also serve a a vehilce to request fees for having to litigate a questionable 57.105 motion.
1038 is correct. An attorney does not send a "57.105 letter," unless the attorney wants to waste time. Any such letter does not start the 21 day safe harbor running; only the SERVICE of the motion does that; the motion is not FILED until the 21 days has elapsed.
I have defended several women who were falsely accused of DV; they were in criminal court, so no 57.105 motion was possible. But that experience (as well as defending men who were falsely accused, usually to get sole custody of the house) demonstrated to me the correctness of the Supreme Court majority's ruling. I understand J Pariente's concerns, but if the petitioner is telling the truth, there is little danger of facing a 57.105 motion, let alone losing such a motion.
Finally, while the statute says that the client and attorney are jointly liable, the client is immune if represented, under a 2010 amendment to the statute. (Provided that he/she correctly relayed the facts to his/her attorney.)
As to those commentators who relied on judges rarely granting 57.105 motions, that is bad lawyering. One should always take them seriously, and both pursue and defend them zealously.
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