Wednesday, August 13, 2014

3d DCA Watch -- Get Your 57.105 On!


I'm not a big fan of 57.105 motions -- you've already won, the case is dead, and now you want that extra pound of flesh?

Let it go.

And there can certainly be times when something is so frivolous that a motion for fees is appropriate -- but simply winning the case should not qualify.

That's pretty much the situation here:
The fact that the trial court determined, via summary judgment, that Phillips was entitled to qualified immunity, does not necessarily mean that Garcia’s malicious prosecution claim lacked factual support—and was therefore sanctionable—under section 57.105. . . .The record supports the trial court’s conclusion that Phillips did not establish that Garcia’s malicious prosecution claim was meritless; Phillips simply proved that, in this instance, she was able to avoid Garcia’s claim by successfully advancing her immunity defense.
Time to move for rehearing?


7 comments:

  1. What is good? Japanese finger-foods, Champagne & bubble-bath, followed by a good massage and sex. I'm a lover not a fighter!

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  2. This was one of those classy "I'm going to 57.105 you for 57.105'ing me!" cases. [eyeroll].

    I don't see the use of the motion as getting an extra pound of flesh when you win. You're getting your client's fees paid in having to defend against a lawsuit or a motion unsupported by facts and/or application of the law to the facts. I don't think you're properly serving your client's interest by not serving a 57.105 under the appropriate circumstances.

    Obviously there are political concerns when serving one of those, the most common of which is when a large firm 57.105's another large firm, but that another discussion.

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  3. They are rarely granted.

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  4. why would there be rehearing on a abuse of discretion standard of reiew case. Four judges said no. Isn't that reasonable enough?

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  5. I like that scene.

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