Burgos v. Burgos, 948 So. 2d 918 (Fla. 4th DCA 2007). · Go Syfert
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Burgos v. Burgos, 948 So. 2d 918 (Fla. 4th DCA 2007). Cases Citing This Book View Copy Cite
6 citation events (6 in the last 25 years) across 1 distinct court.
Strongest positive: Lago v. Kame By Design, LLC (fladistctapp, 2013-08-07)
Top citers, strongest first. 3 distinct citers.
discussed Cited as authority (rule) Lago v. Kame By Design, LLC
Fla. Dist. Ct. App. · 2013 · confidence medium
See § 57.105(4), Fla. Stat. (2012) (“A motion by a party seeking sanctions under this section 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21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately correct ed.”); Burgos v. Burgos, 948 So.2d 918, 919 (Fla. 4th DCA 2007) (a party’s failure to comply with the requirements of the 21-day “safe harbor” provision of section 57.105(4) requires reversal of an order granting a motion for sanctions under section 57.105).
discussed Cited as authority (rule) Montgomery v. Larmoyeux
Fla. Dist. Ct. App. · 2009 · confidence medium
Larkin v. Buranosky, 973 So.2d 1286, 1287 (Fla. 4th DCA 2008) (stating that “ ‘[a]ny statute that deviates from the common law approach must be strictly construed’” (quoting Hilyer Sod, Inc. v. Willis Shaw Exp., Inc., 817 So.2d 1050, 1054 (Fla. 1st DCA 2002))); see, e.g., Cano v. Hyundai Motor Am., Inc., 8 So.3d 408 (Fla. 4th DCA 2009) (holding that “[s]ection 768.79 and rule 1.442 are strictly construed because they are ‘in derogation of the common law rule that each party pay their own fees’ ” (quoting Brower-Eger v. Noon, 994 So.2d 1239, 1241 (Fla. 4th DCA 2008))); see also …
discussed Cited "see, e.g." Nedd v. Gary
Fla. Dist. Ct. App. · 2010 · signal: see also · confidence medium
See § 57.105(4), Fla. Stat. *1030 (2007); see also Burgos v. Burgos, 948 So.2d 918, 919 (Fla. 4th DCA 2007) (holding that attorney’s fees were not recoverable under section 57.105 because attorney filed motion for fees three days after the voluntary dismissal on which the motion was based, thereby violating subsection 57.105(4)).
Richard BURGOS and Duran Schmidt, Appellants,
v.
Jose A. BURGOS, Appellee.
4D06-1065.
District Court of Appeal of Florida, Fourth District.
Feb 14, 2007.
948 So. 2d 918
Hazouri.
Cited by 5 opinions  |  Published

Kenneth Eric Trent of Kenneth Eric Trent, P.A., Fort Lauderdale, for appellants.

No appearance for appellee.

HAZOURI, J.

Appellants, Richard Burgos and Duran Schmidt, appeal from the trial court's order granting attorney's fees to appellee, Jose A. Burgos, pursuant to section 57.105, Florida Statutes (2005). We reverse.

Appellants filed a complaint for defamation against appellee on May 25, 2005. Appellee filed a motion to dismiss on June 7, 2005. Appellee filed his Answer and Affirmative Defenses on June 14, 2005. In the Answer, after denying the allegations, appellee requested the court to set the case for trial and "award attorney's fees pursuant to F.S. 57.105." Appellee asserted truth as his affirmative defense.

On January 20, 2006, appellants filed their Notice of Voluntary Dismissal which had been faxed and mailed to appellee's attorney on January 12, 2006.

On January 23, 2006, appellee filed his Motion for Attorney's Fees alleging that "this matter clearly had no justiciable issues" and requested fees under section 57.105, Florida Statutes. The trial court granted the appellee's request for attorney's fees, awarding fees in the amount of $1,280.

Section 57.105(4), Florida Statutes (2005), provides: "A motion by a party seeking sanctions under this section 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 paper, claim, defense, contention,[*919] allegation, or denial is not withdrawn or appropriately corrected."

In Vanderpol v. Frengut, 932 So.2d 1251 (Fla. 4th DCA 2006) (quoting Maxwell Building Corp. v. Euro Concepts, LLC, 874 So.2d 709, 711 (Fla. 4th DCA 2004)), this court stated:

The primary purpose of section 57.105(4) is not to spring a procedural trap on the unwary so that valid claims are lost. Rather, its function is to give a pleader a last clear chance to withdraw a frivolous claim or defense within the scope of subsection (1) or to reconsider a tactic taken primarily for the purpose of unreasonable delay under subsection (3). Having the parties police themselves, instead of requiring judicial intervention on section 57.105 issues, promotes judicial economy and minimizes litigation costs.

Vanderpol, 932 So.2d at 1253.

The appellee failed to comply with the requirements of section 57.105(4). Therefore, the trial court erred in granting attorney's fees under section 57.105. We reverse with directions that the trial court vacate the order awarding attorney's fees.

Reversed with Directions.

GUNTHER and POLEN, JJ., concur.