Florida 57.105 — getting attorneys fees damages from the other side
Lots of family members involved in a trust or will contest complain that what the other side is doing is baseless. A weird Florida statute gives you the chance to recover some of your attorneys fees as damages. To see how you may be able to get damages (in the form of attorneys fees) against your opponent (or their lawyer), read about Florida 57.105.
Florida Statute 57.105– background
So, we know that Florida law is generally made up of two things: statutes and caselaw.
The legislature creates the laws which the governor signs.
Our judges tell us what those statutes mean and how they operate.
So, why would you refer to this law as “weird?”. Well, first of all, Florida 57.105 is one of those statutes that seems to create more litigation than it was intended to diminish. Second, it is often mis-understood and incorrectly applied. By the lawyers ! In fact, ask an experienced will or trust litigation lawyer. They will tell you that there are a lot of probate lawyers who say they go to court, but actually don’t try cases. And they often don’t completely understand this statute and when it is appropriate.
57.105 in easy-2-read, plain-English
- 57.105 is a Florida statute
- It provides that sanctions may be awarded against a party in a lawsuit for having a baseless, or frivolous position
- A baseless or frivolous position is one that is not supported by the law or the facts of your case
- Sanctions may also be awarded against your opponent’s attorneys
- These sanctions are considered monetary damages in the form of an award of attorneys fees
- A Florida judge has the absolute right to sanction a party or their attorney under this law, in the judge’s sound discretion
- This judicial discretion will NOT be overturned on appeal unless one can demonstrate a clear abuse of that discretion
- Any order awarding damages or attorneys fees under this law must make specific findings of fact
- If there is competent substantial evidence to support the award of damages or fees, it will be upheld on appeal
- There are prerequisites to seeking fees under this law– so called “hoops” to jump through first
- This includes providing notice to the other side to withdraw their baseless position
- This law may apply to lawsuits, complaints, answers, affirmative defenses and motions
- Here is a recent appellate opinion on this topic: 57.105 CASE