HB 813

1	A bill to be entitled
2	An act relating to award of attorney's fees; reenacting
3	and amending s. 57.105, F.S.; relating to attorney's fees
4	and sanctions for raising unsupported claims or defenses;
5	providing an entitlement to fees and requiring compliance
6	with filing provisions; amending s. 768.79, F.S.;
7	requiring joint offers in specified circumstances;
8	requiring party to clarify uncertainties in offer's terms
9	or conditions; allowing offers to be made at any time by
10	any party; providing exceptions; providing that a party
11	will be bound by its offer if accepted; prohibiting the
12	evaluation of zero or nominal offers; providing
13	legislative intent; providing applicability; providing an
14	effective date.
15
16	WHEREAS, the legislative power of the state is vested
17	solely in the Legislature of the State of Florida, and the
18	Legislature is the only branch of government constitutionally
19	authorized to confer substantive rights, and
20	WHEREAS, shifting fees to the losing party is in derogation
21	of the common law American rule that each party in a lawsuit pay
22	its own attorney's fees, and
23	WHEREAS, the award of attorney's fees is a substantive
24	right that may only be conferred by the Legislature, and
25	WHEREAS, a substantive right created by the Legislature may
26	not be abolished by the courts, and
27	WHEREAS, the Legislature enacted chapter 99-225, Laws of
28	Florida, which amended both section 57.105, Florida Statutes,
29	and section 768.79, Florida Statutes, and
30	WHEREAS, the Legislature provided the standard for the
31	award of attorney's fees under section 57.105, Florida Statutes,
32	which provides that attorney's fees shall be awarded to the
33	prevailing party in a civil proceeding or action in which the
34	court finds that the losing party or the losing party's attorney
35	knew or should have known that a claim or defense when initially
36	presented to the court or at any time before trial was not
37	supported by the material facts necessary to establish the claim
38	or defense, or would not be supported by the application of
39	then-existing law to those material facts, and
40	WHEREAS, the standard for the award of attorney's fees
41	under section 57.105, Florida Statutes, is not whether the claim
42	or defense was "frivolous," and
43	WHEREAS, the application of a standard other than the
44	standard adopted by the Legislature for the award of a
45	substantive right violates the separation of powers clause in
46	section 3, Article II of the State Constitution, NOW, THEREFORE,
47
48	Be It Enacted by the Legislature of the State of Florida:
49
50	Section 1.  Section 57.105, Florida Statutes, is reenacted,
51	and subsection (4) of that section is amended, to read:
52	57.105  Attorney's fee; sanctions for raising unsupported
53	claims or defenses; service of motions; damages for delay of
54	litigation.--
55	(1)  Upon the court's initiative or motion of any party,
56	the court shall award a reasonable attorney's fee to be paid to
57	the prevailing party in equal amounts by the losing party and
58	the losing party's attorney on any claim or defense at any time
59	during a civil proceeding or action in which the court finds
60	that the losing party or the losing party's attorney knew or
61	should have known that a claim or defense when initially
62	presented to the court or at any time before trial:
63	(a)  Was not supported by the material facts necessary to
64	establish the claim or defense; or
65	(b)  Would not be supported by the application of then-
66	existing law to those material facts.
67
68	However, the losing party's attorney is not personally
69	responsible if he or she has acted in good faith, based on the
70	representations of his or her client as to the existence of
71	those material facts. If the court awards attorney's fees to a
72	claimant pursuant to this subsection, the court shall also award
73	prejudgment interest.
74	(2)  Paragraph (1)(b) does not apply if the court
75	determines that the claim or defense was initially presented to
76	the court as a good faith argument for the extension,
77	modification, or reversal of existing law or the establishment
78	of new law, as it applied to the material facts, with a
79	reasonable expectation of success.
80	(3)  At any time in any civil proceeding or action in which
81	the moving party proves by a preponderance of the evidence that
82	any action taken by the opposing party, including, but not
83	limited to, the filing of any pleading or part thereof, the
84	assertion of or response to any discovery demand, the assertion
85	of any claim or defense, or the response to any request by any
86	other party, was taken primarily for the purpose of unreasonable
87	delay, the court shall award damages to the moving party for its
88	reasonable expenses incurred in obtaining the order, which may
89	include attorney's fees, and other loss resulting from the
90	improper delay.
91	(4)  A party is entitled to an award of sanctions under
92	this section only if a motion is by a party seeking sanctions
93	under this section must be served. Such motion shall but may not
94	be filed with or presented to the court unless, within 21 days
95	after service of the motion, the challenged paper, claim,
96	defense, contention, allegation, or denial is not withdrawn or
97	appropriately corrected. Any motion filed with the court that
98	does not comply with this subsection is null and void.
99	(5)  In administrative proceedings under chapter 120, an
100	administrative law judge shall award a reasonable attorney's fee
101	and damages to be paid to the prevailing party in equal amounts
102	by the losing party and a losing party's attorney or qualified
103	representative in the same manner and upon the same basis as
104	provided in subsections (1)-(4). Such award shall be a final
105	order subject to judicial review pursuant to s. 120.68. If the
106	losing party is an agency as defined in s. 120.52(1), the award
107	to the prevailing party shall be against and paid by the agency.
108	A voluntary dismissal by a nonprevailing party does not divest
109	the administrative law judge of jurisdiction to make the award
110	described in this subsection.
111	(6)  The provisions of this section are supplemental to
112	other sanctions or remedies available under law or under court
113	rules.
114	(7)  If a contract contains a provision allowing attorney's
115	fees to a party when he or she is required to take any action to
116	enforce the contract, the court may also allow reasonable
117	attorney's fees to the other party when that party prevails in
118	any action, whether as plaintiff or defendant, with respect to
119	the contract. This subsection applies to any contract entered
120	into on or after October 1, 1988.
121	Section 2.  Subsection (2) and paragraph (a) of subsection
122	(7) of section 768.79, Florida Statutes, are amended to read:
123	768.79  Offer of judgment and demand for judgment.--
124	(2)  The making of an offer of settlement which is not
125	accepted does not preclude the making of a subsequent offer. An
126	offer must:
127	(a)  Be in writing and state that it is being made pursuant
128	to this section.
129	(b)1.  Name the party making it and the party to whom it is
130	being made.
131	2.  When the sole allegation against a defendant is based
132	upon vicarious, constructive, derivative, or technical liability
133	and that defendant is sued in the same case as defendants
134	alleged to be actively negligent, whether by operation of law or
135	by contract, an offer of settlement made:
136	a.  To such allegedly actively negligent defendants shall
137	be made jointly in one offer with a single sum applicable to all
138	of them. The single sum shall be considered the total amount for
139	purposes of paragraph (d).
140	b.  By such allegedly actively negligent defendants shall
141	be for a single sum offered jointly by them. The single sum
142	shall be considered the total amount for purposes of paragraph
143	(d).
144	(c)  State with particularity the amount offered to settle
145	a claim for punitive damages, if any.
146	(d)  State its total amount.
147	(e)  The party to whom an offer is made has the burden of
148	clarifying any uncertainties in an offer's terms or conditions.
149	(f)  Except as otherwise provided in paragraph (b), an
150	offer may be made at any time for any amount by any party.
151	(g)  A party shall be bound by its offer if such offer is
152	accepted.
153
154	The offer shall be construed as including all damages which may
155	be awarded in a final judgment.
156	(7)(a)  If a party is entitled to costs and fees pursuant
157	to the provisions of this section, the court may, in its
158	discretion, determine that an offer was not made in good faith.
159	In such case, the court may disallow an award of costs and
160	attorney's fees. For purposes of this section, an offer is not
161	made in good faith if it is zero or merely nominal.
162	Section 3.  It is the intent of this act and the
163	Legislature to accord the utmost comity and respect to the
164	constitutional prerogatives of Florida's judiciary, and nothing
165	in this act should be construed as an effort to impinge upon
166	those prerogatives. To that end, should any court of competent
167	jurisdiction enter a final judgment concluding or declaring that
168	a provision of this act improperly encroaches upon the authority
169	of the Florida Supreme Court to determine the rules of practice
170	and procedure in Florida courts, the Legislature hereby declares
171	its intent that such provision be construed as a request for
172	rule change pursuant to section 2, Article V of the State
173	Constitution and not as a mandatory legislative directive.
174	Section 4.  This act shall take effect July 1, 2007, and
175	the amendments to section 768.79, Florida Statutes, made by this
176	act shall apply only to offers made on or after that date.

CODING: Words stricken are deletions; words underlined are additions.