122 So. 3d 487
Fla. Dist. Ct. App.2013Background
- Global entered an oral contract with Advanced to repair Global's aircraft; dispute over amount owed led to a mechanic's lien by Advanced under Fla. Stat. ch. 713 and 329.51/713.58; Global sued for writ of replevin and damages on June 29, 2010.
- Advanced sent a July 21, 2010 letter stating Global should withdraw its complaint within 21 days under §57.105(4); the letter did not reference a motion or indicate an enclosure.
- Advanced served a §57.105 motion on August 12, 2010, and filed it on August 16, 2010, asserting it satisfied the twenty-one day notice requirement.
- Global argued it was never served with a §57.105 motion under §57.105(4); the trial court relied on unsworn attorney statements that the motion accompanied the July 21 letter.
- The trial court awarded Advanced $30,141 in attorney’s fees under §§57.105(4) and 713.29; the order was appealed as to both statutes.
- The Florida appellate court reversed, holding no proper §57.105 notice was shown and §713.29 did not apply for a lien not within Part I Construction Liens; remanded to vacate the award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the §57.105(4) notice requirements were satisfied. | Global: no proper notice; no motion served with July 21 letter. | Advanced: July 21 letter and accompanying motion satisfied notice. | §57.105 not satisfied; abuse of discretion to award fees. |
| Whether §713.29 applies to this lien dispute. | Advanced: §713.29 covers liens under this part. | Statute limited to Part I Construction Liens; lien not under Part I. | §713.29 does not apply; reversal on this ground. |
Key Cases Cited
- Anchor Towing, Inc. v. Fla. Dep’t of Transp., 10 So.3d 670 (Fla. 3d DCA 2009) (strict construction of §57.105(4) and requirement of a motion, not a letter)
- Nathan v. Bates, 998 So.2d 1178 (Fla. 3d DCA 2008) (safe harbor notice regime for §57.105(4))
- Bionetics Corp. v. Kenniasty, 69 So.3d 943 (Fla.2011) (describes safe harbor 21-day notice requirement)
- Davidson v. Ramirez, 970 So.2d 855 (Fla. 3d DCA 2007) (illustrates last chance to withdraw frivolous claim under §57.105)
- Daughtrey v. Daughtrey, 944 So.2d 1145 (Fla. 2d DCA 2006) (record evidence required; unsworn counsel representations insufficient)
- Mashan Contractors, Inc. v. Bailey, 922 So.2d 330 (Fla. 3d DCA 2006) (interprets §713.29 as applying to construction liens under Part I)
- State v. Bauman, 425 So.2d 82 (Fla. 4th DCA 1982) (evidentiary weight of attorney representations)