County Civil Court: ATTORNEY’S FEES – Florida Statutes, section 57.105 – safe harbor provision - trial court did not abuse its discretion in assessing 57.105 fees against plaintiff and plaintiff’s attorney – undisputed evidence showed that subject written real estate contract had been canceled and that any prior oral contract merged into the written contract – plaintiff had no involvement in the sale of property and was not in joint venture with the defendant so as to be entitled to sales commission – plaintiff’s attorney knew or should have known complaint was baseless - safe harbor provision of section 57.105, which became effective after complaint was filed, did not apply - Final Judgment affirmed. Intermab, Inc. v. Don Begg Real Estate, Inc., Appeal No. 05-0046AP-88A (Fla. 6th Cir. App. Ct. Sept. 8, 2006).

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

INTERMAB, INC., d/b/a BYBLOS

BEACH REALTY and BRUCE J. ROBBINS,

Appellants,

vs. Appeal No.05-0046AP-88A

UCN522005AP000046XXXXCV

DON BEGG REAL ESTATE, INC.,

Appellee.

____________________________________/

Appeal from Final Judgment

Pinellas County Court

Judge Kathleen T. Hessinger

Elihu H. Berman, Esquire

Attorney for Appellant

Richard K. Fueyo, Esquire

Attorney for Appellee

ORDER AND OPINION

THIS CAUSE came before the Court on appeal, filed by Intermab, Inc., d/b/a Byblos Beach Realty (Byblos) and Bruce J. Robbins, Esquire (Robbins), from the Final Judgment, entered May 16, 2005, in favor of Don Begg Real Estate, Inc. (Begg). The Final Judgment found the Plaintiff, Byblos, liable for attorney’s fees pursuant to Florida Statutes, section 57.105, and ordered Byblos and his attorney, Robbins, to each pay one-half of $ 13,000.00[1] for the Defendant’s reasonable attorney’s fees. Upon review of the briefs, the record and being otherwise fully advised, the Court affirms the trial court’s ruling as set forth below.

The record shows that Byblos sued Begg, a real estate broker, on July 20, 2000, seeking alleged damages stemming from sale of real property brokered by Begg to Hamid R. Marzpan (Marzpan), a businessman who operated a Dunkin Donuts shop adjacent to the subject real property. The complaint was filed by Robbins. On October 5, 2001, Robbins filed the Second Amended Complaint alleging that Byblos was due a 3.5% commission, or half of the commission received by Begg, as the parties’ had an oral agreement to split the commission or, alternatively, a joint venture concerning the sale of the property requiring partition of the commission. Byblos demanded the principle sum of $ 9,450.00, as his share of the commission.

The record shows that Robbins, between October and December 1998, attempted to facilitate the sale of the property between Marzpan and the property owner, Harvey Ayers. Robbins represented to Begg that he was acting as a Trustee for Ulmerton Land Company, Marzpan’s company, and utilizing the broker services of Mounir El-Beyrouty (Beyrouty), the principal officer of Byblos. El-Beyrouty did not know who Robbins was actually representing, Marzpan, nor did Begg, who previously had negotiations directly with Marzpan which were unsuccessful.

El-Beyrouty and Begg were able to reach an agreement on the sale of the property. Robbins drafted a contract showing himself as the purchaser, with the right to assign his interest to a third party, and Mr. Ayers as the seller. The contract provided that the commission would be shared with El-Beyrouty receiving 3.5 % of the sale price and Begg receiving 3.67 %. However, due to financing issues with the third party, Marzpan, the deal fell through and Robbins terminated the contract. Over a year later, Marzpan purchased the property from Mr. Ayers through Begg, for $ 270,000, $ 33,000 more than the December 1998 contract drafted by Robbins. Robbins brought suit on behalf of Byblos seeking half the commission.

After several months of litigation, counsel for Begg moved to disqualify Robbins as counsel for Byblos because “Robbins is a necessary and indispensable witness.” On February 13, 2002, the trial court granted the motion to disqualify finding that Robbins was a primary figure in the cause of action and subject to extensive testimony and discovery as a witness. Begg filed its first motion for summary judgment, on December 6, 2001, which was denied as there was outstanding discovery. Begg filed its second Motion for Final Summary Judgment, on May 7, 2003, which cited to El-Beyrouty’s deposition testimony confirming that no listing broker would enter into an agreement to share commission with a buyer’s broker who was representing a purchaser previously interested in the same property. On May 9, 2003, Byblos filed its Notice of Voluntary Dismissal.

On June 3, 2003, Begg filed its motion to tax attorney’s fees pursuant to Florida Statutes, section 57.105, which came before the Court on June 17, 2003. The trial court did not enter a specific written order on the motion. However, as set forth in the Order to Show Cause, entered August 28, 2003, the trial court states that it verbally granted the motion to tax attorney’s fees against Byblos at the conclusion of the June 17th hearing, and found that Robbins should show cause as to why fees should not be taxed against him in equal amounts as “the claim when initially presented to the court or at any time during the case was not supported by the material facts necessary to establish the claim or was not supported by the application of the law to the material facts.”

Following the hearing on the show cause order, the trial court entered, on January 5, 2004, the Order Assessing Attorney’s Fees Against Bruce J. Robbins, which found that Robbins should have known that the material facts necessary to support either a breach of contract claim or joint venture never existed. The trial court found that “Mr. Robbins took an unusual personal interest in this matter, for whatever reason, which apparently clouded his judgment in bringing this lawsuit.” On July 29, 2004, the trial court entered its Order Finding Plaintiff Liable for Defendant’s Attorneys’ Fees Pursuant to Florida Statute 57.105. On March 18, 2005, Begg filed its Motion to Tax Attorneys’ Fees and Costs, to which Byblos filed Plaintiff’s Objection to Award of Attorney’s Fees on the Grounds of Laches. The matter came before the trial court on April 26, 2005, which resulted in the entry of the Final Judgment[2] from which Byblos and Robbins have filed this appeal.

Before this Court, Byblos and Robbins argue that Byblos claim was arguably supported by material facts and then-existing law and that Begg was barred from seeking sanctions pursuant to 57.105 for having failed to serve Byblos with a 21-day “safe harbor” notice as set forth in subsection 4. In reviewing the first issue, an appellate court reviews an order awarding fees pursuant to 57.105 for an abuse of discretion. See Connelly v. Old Bridge Village Co-Op, Inc., 915 So.2d 652, 653 (Fla. 2d DCA 2005). The purpose of 57.105 fees is to discourage baseless claims by imposing sanctions for those responsible for unnecessary litigation costs. See id.; see also Visoly v. Security Pacific Credit Corp., 768 So.2d 482, 492 (Fla. 3d DCA 2000).

Under the facts of this case, the Court cannot conclude that the trial court abused its discretion in awarding 57.105 fees to be paid in equal shares by Byblos and his

attorney, Robbins. It is undisputed that after an agreement had been reached between El-Beyrouty and Begg, Robbins drafted a written contract for the sale of the property which specifically set forth the parties’ agreement regarding the commission. Any oral agreement that the parties may have had merged into the written contract, such that Robbins and Byblos should have know the facts did not support a claim for breach of oral contract. See Banco Inversion, S.A. v. Celtic Finance Corp., S.A., 907 So.2d 704, 718-19 (Fla. 4th DCA 2005). Further, it is clear that there was no meeting of the minds between El-Beyrouty and Begg to form any kind of contract as neither broker knew who the actual potential purchaser was, Ulmerton Land Company/Marzpan, which would have precluded an agreement to split a commission.[3]

It is undisputed that Robbins then canceled the written contract and, afterwards, Robbins and Byblos had no further dealings with the subject property until Robbins became aware that the property had been sold and then demanded a commission on behalf of Byblos. Robbins and Byblos had no involvement in the sale of the property and Marzpan purchased the property for significantly more money then Robbins’ written contract. There was nothing presented to the trial court that Byblos and Begg were engaged in a joint venture. See Atkins v. Topp Telecom, Inc., 873 So.2d 397, 399 (Fla. 4th DCA 2004)(setting forth the essential elements of a joint venture including the duty to share in any losses). Indeed, Beyrouty testified there was no agreement to share losses and that he would have never agreed to share losses with Begg.

The Court finds that there was a specific written contract that was subsequently canceled and that there were no further business dealings between Byblos and Begg. Hence, there was no basis for Robbins to demand the commission based on an alleged oral agreement or joint venture based on the sale of the property several months later.

In addressing the second issue, the Court finds that the “safe harbor” provision set forth in section 57.105(4), which became effective on July 1, 2002, which requires a party to serve a motion at least 21 days before filing the motion if seeking sanctions under this section, was not applicable in this case since the original complaint was filed in July 2000, and the Second Amended Complaint was filed in October 2001. See Gibson v. Autonation, Inc., 2004 WL 3422027 (Fla. 6th Cir. Ct.), aff’d, 871 So.2d 223 (Table) (concluding that the safe harbor rule does not apply to complaint filed before safe harbor statute took effect). In any case, the Court finds that the 21-day notice requirement would not have applied to Robbins since it was the trial court, on its own initiative, that sought to impose 57.105 fees against Mr. Robbins, not the Defendant, Begg. See Morton v. Heathcock, 913 So.2d 662, 669 (Fla. 3d DCA 2005)(finding that 21-day notice requirement imposed by 57.105(4) does not apply to fees imposed on the trial court’s own initiative).

Therefore, it is,

ORDERED AND ADJUDGED that the Final Judgment is affirmed.

It is further

ORDERED AND ADJUDGED that the Appellee’s Motion for Attorneys’ Fees

is granted. The trial court shall determine the amount of reasonable appellate attorney’s fees to be awarded.

DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ______ of August 2006.

________________________________

JOHN A. SCHAEFER

Circuit Judge, Appellate Division

______________________________ ______________________________

LAUREN LAUGHLIN BRANDT C. DOWNEY, III

Circuit Judge, Appellate Division Circuit Judge, Appellate Division

Copies furnished to:

Judge Kathleen T. Hessinger

Elihu H. Berman, Esquire

509 S. Martin Luther King Jr. Avenue

Clearwater, FL 33756

Richard K. Fueyo, Esquire

101 East Kennedy, Suite 2700

Tampa, FL 33601

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[1] The parties stipulated to this amount of fees.

[2] The Final Judgment incorporates that Order Finding Plaintiff Liable for Defendant’s Attorneys’ Fees Pursuant to Florida Statute 57.105, and the Order Assessing Attorney’s Fees Against Bruce J. Robbins.

[3] While the deposition of El-Beyrouty is not in the record, the Appellants do not dispute these facts.