Lago v. Kame By Design, LLC
120 So. 3d 73
| Fla. Dist. Ct. App. | 2013Background
- Defendants Zaida, Julio, and Juan Carlos Lago (and their counsel) filed a motion for attorney’s fees; appellee sought sanctions under Fla. Stat. § 57.105 for that fee motion.
- Appellee filed two section 57.105 motions: the first argued no contractual or statutory basis for fees; the second repeated that and added that the Lagos waived fee entitlement by not pleading for fees (citing Stockman v. Downs).
- The trial court granted sanctions based on appellee’s second motion and entered a final judgment awarding fees and costs against appellants.
- The second motion did not comply with the 21‑day “safe harbor” of § 57.105(4) (motion served but not filed until the challenged paper is not withdrawn/corrected within 21 days).
- The appellate court reversed as to all appellants, holding a subsequent/amended sanctions motion that raises new grounds must itself comply with the 21‑day safe harbor; remanded for consideration only of the first motion (which did comply).
- The opinion noted that the Lagos had withdrawn their fee motion at a hearing (treated as the losing party for purposes of sanctions) and that if fees are awarded the trial court must state the factual basis in its order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a subsequent/amended § 57.105 motion raising new grounds must satisfy the 21‑day safe harbor | Appellee: New grounds may be raised in a later motion without repeating safe harbor | Lagos: Subsequent motion must give 21‑day opportunity to withdraw/correct new grounds | Court: Subsequent/amended motions that add new grounds must independently comply with § 57.105(4)’s 21‑day safe harbor |
| Whether the trial court properly granted sanctions based on the noncompliant second motion | Appellee: Sanctions appropriate; Lagos had no basis for fees and waived fee claim | Lagos: Second motion noncompliant with safe harbor; sanction order thus improper | Court: Granting sanctions on the second motion was error; reversal required; court may consider only first motion on remand |
Key Cases Cited
- Stockman v. Downs, 573 So.2d 835 (Fla. 1991) (failure to plead entitlement to fees can constitute waiver)
- Burgos v. Burgos, 948 So.2d 918 (Fla. 4th DCA 2007) (failure to comply with § 57.105(4) safe harbor requires reversal of sanctions order)
- Ferere v. Shure, 65 So.3d 1141 (Fla. 4th DCA 2011) (standard of review for § 57.105 awards; de novo for legal issues)
- Regions Bank v. Gad, 102 So.3d 666 (Fla. 1st DCA 2012) (trial court awarding § 57.105 fees should recite facts supporting the award)
- Rehman v. ECC Int'l Corp., 698 So.2d 921 (Fla. 5th DCA 1997) (voluntary withdrawal of a motion is tantamount to voluntary dismissal)
- Pino v. Bank of New York, 121 So.3d 23 (Fla. 2013) (if plaintiff fails to withdraw within safe harbor, court retains jurisdiction to award fees after dismissal)