County
Civil Court: ATTORNEY’S FEES – Section 57.105(4) – voluntary
dismissal – trial court erred in not awarding costs to defendant pursuant to
Small Claims Rule 7.110(d) following plaintiff’s voluntary dismissal –
defendant was not entitled to 57.105 fees as the defendant failed to comply
with 57.05(4) requiring a party serve a motion seeking sanctions under this
section. Judgment reversed, in
part. Sawyer
v. Largo Medical Center, Inc., Appeal No. 04-0058AP-88A (Fla. 6th
Cir. App. Ct. June 27, 2005).
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
FOR PINELLAS COUNTY, FLORIDA
APPELLATE
DIVISION
DOMINIQUE RODRIGUEZ SAWYER, as Personal
Representative of the Estate of Fritz Rodriguez
Appellant,
vs. Appeal No. 04-0058AP-88A
UCN522004AP000058XXXXCV
LARGO MEDICAL CENTER, INC.,
d/b/a LARGO MEDICAL CENTER,
Appellee.
_________________________________________/
Appeal from Denial of Attorney’s Fees
Pinellas County Court
Judge William B. Blackwood
Florence R. King, Esquire
Attorney for Appellant
Mark E. Pollack, Esquire
Attorney for Appellee
ORDER
AND OPINION
THIS CAUSE came before the Court on appeal,
filed by Dominique Rodriguez Sawyer, as Personal Representative of the Estate
of Fritz Rodriguez (Rodriguez), from the Order Denying Defendant’s Motion for
an Award of Attorney’s Fees and Expenses, entered August 4, 2004. Upon review of the briefs, the record and
being otherwise fully advised, the Court affirms, in part, the trial court’s
ruling as set forth below.
The
record shows that, on October 8, 2003, the Appellee, Largo Medical Center,
Inc., d/b/a Largo Medical Center (Largo Medical), filed a Statement of Claim in
Small Claims Court against Rodiguez seeking payment for hospital services and
supplies rendered to Fritz Rodriguez. On
November 4, 2003, the pre-trial conference was continued pending
settlement. Largo Medical filed its
Notice of Voluntary Dismissal with Prejudice on April 21, 2004. Rodriquez then filed, on May 13, 2004, a
Motion for Reasonable Attorney’s Fees and Expenses pursuant to Florida
Statutes, § 57.105. After a noticed
hearing on the matter, the trial court denied the motion as Rodriguez had not
complied with the motion requirement of § 57.105(4).
On
appeal, Rodriguez argues that it was error for the trial court to deny
attorney’s fees and expenses based on his failure to comply with § 57.105(4). In addressing this issue, the Court initially
finds that the trial court erred in not awarding Rodriguez his expenses, as the
Florida Small Claims Rules, Rule 7.110(d), provides that “[c]osts in any action
dismissed under this rule shall be assessed and judgment for costs entered in
that action.”
In
addressing the issue of attorney’s fees, the Court finds that § 57.105(4)
states:
A motion by a party seeking sanctions under this
section must be served but may not be filed with or presented to the court
unless, within 21 days after service of the motion, the challenged paper,
claim, defense, contention, allegation, or denial is not withdrawn or
appropriately corrected.
As explained in Maxwell Building
Corporation v. Euro Concepts, LLC, 874 So.2d 709, 711 (Fla. 4th DCA 2004),
the function of § 57.105(4) “is to give a pleader a last clear chance to
withdraw a frivolous claim or defense within the scope of subsection (1) or to
reconsider a tactic primarily taken for the purpose of unreasonable delay under
subsection (3).”[1] In Maxwell, the Fourth District Court
of Appeal held that the plaintiffs did not need to file a separate motion for §
57.105 fees as the plaintiffs had requested § 57.105 fees in their answer to
the defendants’ counterclaims and in their motion for summary judgment. The Fourth District reversed the denial of
attorney’s fees finding that the defendants had more then 21 days to withdraw
its meritless claims but failed to do so.
Conversely,
in this case there is nothing in the record to show that Rodrigues filed a pleading
or motion requesting attorney’s fees pursuant to § 57.105. While Rodrigues filed Defendant’s Motion for
Order Compelling Discovery on January 13, 2004, this motion does not request §
57.105 attorney’s fees, or any kind of fees for that matter. Therefore, the
Court finds that the trial court’s denial of attorney’s fees for Rodrigues’
failure to follow § 57.105(4) must be affirmed.
In reaching
this conclusion, the Court finds that the procedural requirements of subsection
(4), which became effective July 1, 2002, altered the well-settled law that a
defendant is deemed a prevailing party for purposes of attorney’s fees
following a plaintiff’s voluntary dismissal and can recover fees under § 57.105
if a motion requesting such fees is filed within thirty days of dismissal of
the action. See e.g. Ajax
Paving Industries, Inc. v. Hardaway Company, 824 So.2d 1026, 1029 (Fla. 2d
DCA 2002)(citations omitted). As the
underlying action was proceeding in Small Claims Court, Rodrigues would not
have been required to file an answer to the complaint or defensive pleading in
order to preserve his claim for attorney’s fees under the previous version of §
57.105. See id; see also Green
v. Sun Harbor Homeowners’ Association, 730 So.2d 1261, 1262 (Fla.
1998)(finding that a defendant is not prevented from moving for attorney’s fees
within thirty days following a plaintiff’s voluntary dismissal filed before the
defendant is required to file an answer), aff’g,
Bruce v. Barcomb, 675 So.2d 219 (Fla. 2d DCA 1996). However, as set forth above, subsection (4) now
places the burden on a responding party to timely assess a claim against him
and to file the appropriate motion in order to preserve a claim for § 57.105
fees, as well as to avoid frivolous or dilatory litigation.
Therefore,
it is,
ORDERED AND ADJUDGED that the Order Denying
Defendant’s Motion for an Award of Attorney’s Fees and Expenses is affirmed as
to attorney’s fees. The trial court’s
denial of costs/expenses is reversed and this cause is remanded for the trial
court to award such reasonable costs/expenses.
Rodrigues’ request for appellate attorney’s fees is denied.
DONE AND ORDERED in Chambers, at Clearwater, Pinellas
County, Florida this ________ day of June 2005.
________________________________
JOHN
A. SCHAEFER
Circuit Judge, Appellate Division
_______________________________ ______________________________
LAUREN
LAUGHLIN JAMES
CASE
Circuit Judge, Appellate Division Circuit
Judge, Appellate Division
Copies furnished to:
Judge Henry Andringa
Florence R. King, Esquire
5004 24th Avenue South
Gulfport, FL 33707
Mark E. Pollack, Esquire
800 Douglas Road, North Tower, Suite 450
Coral Gables, FL 33134
[1] The Court notes that Maxwell is currently the only written District appellate opinion that addresses the statutory requirements of subsection (4).