Arbitration & Mediation

Fourth District Explains Procedure to Collect Against Law Firm Under Fla. Stat. 57.105

By Christopher B. Hopkins, Esq.

Need a quick outline on what steps need to be taken to collect on a Florida Statute 57.105 "frivolous" claim motion? The Fourth DCA has a short explanation in Law Offices of Ainslee R. Ferdie, Ferdie and Lones, Chartered, et al. v. Lawrence and Lori Isaacson; Promises 10, 11 & 12 d/b/a Your Salon et al.

In this case, there was a contract dispute between a hair salon and manager. In a termination letter, the owners wrote that depositing the last checks would release all claims. The checks were cashed but suit was filed. The owners won summary judgment relying upon accord and satisfaction. They also filed a Motion for Sanctions Under F.S. 57.105.

The way it was handled below was bungled so we'll simply focus on what the Fourth District wanted to happen:

1. Timely serve/file motion and prevail;
2. Trial court shall make (a) an express finding that the claim was frivolous AND (b) an express finding that the attorney was not acting in good faith;
3. Trial court's findings must be supported by competent substantive evidence and, therefore, there has to be a full evidentiary hearing on both issues (resulting in those express findings);
4. Florida Statute 57.105 does not have a mechanism to force the attorney to pay costs -- only fees. That does not stop a party from seeking fees as the prevailing party, just not out of opposing counsel.

Full post as published by Florida Arbitration Law on May 21, 2009 (boomark / email).