Wednesday, June 1, 2011

3d DCA Watch -- 57.105 Day!

I'm pretty sure every lawyer loves to threaten another lawyer with section 57.105 sanctions, especially by email or letter.

Nothing is more momentarily satisfying yet ultimately devoid of any real significance whatsoever.

But when you go ahead and serve the motion, then your lasting feelings of superiority and Domineering Overlord Type-A Top Dogness kick in, at least for a day or two until you get a nasty response and a countermotion for fees and sanctions.

Which brings us to today's 3d DCA Watch and a fundamental rule of 57.105, the 21 day safe harbor period.

Who could possibly be unaware of this rule?
On appeal, the City argues that the trial court erred in granting the motion for attorney’s fees and costs because the claimant failed to follow the twenty-one day “safe harbor” provision of subsection 57.105(4). See generally Nathan v. Bates, 998 So. 2d 1178 (Fla. 3d DCA 2008); Burgos v. Burgos, 948 So. 2d 918 (Fla. 4th DCA 2007); O’Daniel v. Bd. of Comm’rs, 916 So. 2d 40 (Fla. 3d DCA 2005). The City points to the undisputed fact that the claimant failed to serve his motion for fees on the City twenty-one days prior to filing the motion with the clerk and presenting it to the trial court. The City also argues that the claimant failed to adhere to the requirements of subsection 57.105(4) by filing its motion on September 11, 2009, one month after the trial court entered the order granting the claimant’s motion for summary judgment. See O’Daniel, 916 So. 2d at 41 (holding that motion for attorney’s fees was untimely under subsection 57.105(4) where motion was served and filed following the conclusion of the trial).

Based on the authority of Davidson v. Ramirez, 970 So. 2d 855 (Fla. 3d DCA 2007), we agree with the City that the trial court erred in granting the claimant’s motion for attorney’s fees and costs.
Come on, the 21 day period wasn't observed, seriously?

Yes, Virginia, this is why we have appellate courts.


Anonymous said...

That IS a no-brainer. Surprised the lower court granted the sanction motion.

Edmond Dantes said...

Devoid of significance it is not - I keep a list of every shithead attorney who ever sent me a bullshit notice - I have yet to receive a valid one.

One day they will be remembered for it.

Anonymous said...

The more interesting case was the court's opinion on the Malibu Hotel's building advertising. This from the DBR:

Miami-Dade County has the authority to regulate building-sized billboards like the ones draping the sides of the City Inn hotel next to I-95, the 3rd District Court of Appeal ruled Wednesday.

The court instructed Circuit Judge Maxine Cohen Lando to issue an injunction favoring the county on its bid to strip the eye-catching advertising. The hotel operated by Malibu Lodging Investments flies the beer and travel ad banners without a permit.

Lando ruled the county had no standing to sue and ordinances protecting aesthetics were unconstitutional.

But Judge Angel A. CortiƱas asserted the county “is granted broad home rule and police powers.” Chief Judge Juan Ramirez Jr. and Linda Ann Wells concurred.

The panel rejected Lando’s conclusion that the county ordinances are unconstitutional simply because there is no option for a variance.

Hotel attorney John C. Dellagloria of Miami did not return calls for comment by deadline.

County attorneys R.A. Cuevas Jr. and Tom Robertson also did not respond to calls.


South Florida Lawyers said...

Best part of that decision was determination that City Inn is a "hotel."

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