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). 








Representative of the Estate of Fritz Rodriguez



vs.                                                                                    Appeal No. 04-0058AP-88A









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





            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).