57.105 Attorneys Fees Claim Fails in Florida for Lack of 4 Words– Florida 4th DCA: 21 day safe harbor letter deficient
On June 7, 2017, Florida’s 4th District Court of Appeal in West Palm Beach overturned a Broward County ruling awarding attorneys fees as sanctions under Florida law 57.105. Why? The statutory notice requirement was improper. Estimable v. Prophete ___ So. 3d ___ (Fla., 4th DCA, June 7, 2017.)
Section 57.015 is one of those obscure, almost secret, Florida laws understood by virtually only experienced trial lawyers. It is often mis-understood, although often cited, by non-litigation attorneys.
57.105 permits a party to attempt to “get” attorneys fees from the other side when the other side raises a claim or defense without basis in law or fact. (In Florida litigation, everyone pays their own attorneys unless a contract or statute permits you to “get” fees from the other side. The most notable exception in Florida to the “American Rule” is probate and trust litigation. The Florida Probate Code and Florida Trust Code have significant laws which permit attorneys fees to be paid by others, beneficiaries, an estate or trust. Note that “attorneys fees” is not the same as “costs” or “legal costs.”)
The purpose of the sanctions/attorneys fee law is to deter or diminish frivolous litigation. Ironically, 57.015 has been the subject of numerous appeals.
But in Florida, you have to follow the law or the contract language permitting you to obtain attorneys fees to a “t.” All such statutes are “strictly construed.” Translation: if you don’t follow every step or requirement of the law, you are out of luck. That’s what happened here in this Palm Beach appeal.
To seek fees under 57.105, you must give notice, and, if unheeded, you then file a motion for attorneys fees.
PROPER notice of your claim for attorneys fees must be provided BEFORE you file your 57.105 motion in a Florida court. This notice is referred to by trust litigators or probate litigators as a “21 day letter”. The 4th DCA refers to it as a “safe harbor letter.”
Here are some “best practices” or “takeaways” regarding 57.105 and this recent Florida Appeals Court case:
- The safe harbor letter MUST comply with the statute.
- And the motion for fees, which is really a motion for sanctions under 57.105, must also strictly comply with the statute.
- You should read, and understand, Florida Rule of Judicial Administration 2.516, particularly 2.516(b)(1)(E).
- In this Broward County lawsuit, the safe harbor letter was not in compliance with the law. Since the Broward County court said it was; and the appeals court disagreed; the 4th DCA overturned the Broward County Court.
- In part, the 21 day letter was missing four important words.
- To find out exactly what was wrong with the safe harbor letter, you can read this Florida appeals court opinion on 57.105 for free by clicking this link: https://edca.4dca.org/DCADocs/2016/0725/160725_DC13_06072017_084301_i.pdf