| 1 | A bill to be entitled |
| 2 | An act relating to sanctions for certain court pleadings; |
| 3 | amending s. 57.105, F.S.; prohibiting a monetary sanction |
| 4 | against a represented party for a claim that is presented |
| 5 | as a good faith argument but that is found to not be |
| 6 | supported by the application of then-existing law to |
| 7 | material facts; prohibiting sanctions against a party or |
| 8 | its attorneys by a court on its own initiative if the case |
| 9 | has already been settled or voluntarily dismissed by that |
| 10 | party; providing an effective date. |
| 11 |
|
| 12 | Be It Enacted by the Legislature of the State of Florida: |
| 13 |
|
| 14 | Section 1. Section 57.105, Florida Statutes, is amended to |
| 15 | read: |
| 16 | 57.105 Attorney's fee; sanctions for raising unsupported |
| 17 | claims or defenses; exceptions; service of motions; damages for |
| 18 | delay of litigation.- |
| 19 | (1) Upon the court's initiative or motion of any party, |
| 20 | the court shall award a reasonable attorney's fee, including |
| 21 | prejudgment interest, to be paid to the prevailing party in |
| 22 | equal amounts by the losing party and the losing party's |
| 23 | attorney on any claim or defense at any time during a civil |
| 24 | proceeding or action in which the court finds that the losing |
| 25 | party or the losing party's attorney knew or should have known |
| 26 | that a claim or defense when initially presented to the court or |
| 27 | at any time before trial: |
| 28 | (a) Was not supported by the material facts necessary to |
| 29 | establish the claim or defense; or |
| 30 | (b) Would not be supported by the application of then- |
| 31 | existing law to those material facts. |
| 32 |
|
| 33 | However, the losing party's attorney is not personally |
| 34 | responsible if he or she has acted in good faith, based on the |
| 35 | representations of his or her client as to the existence of |
| 36 | those material facts. If the court awards attorney's fees to a |
| 37 | claimant pursuant to this subsection, the court shall also award |
| 38 | prejudgment interest. |
| 39 | (2) Paragraph (1)(b) does not apply if the court |
| 40 | determines that the claim or defense was initially presented to |
| 41 | the court as a good faith argument for the extension, |
| 42 | modification, or reversal of existing law or the establishment |
| 43 | of new law, as it applied to the material facts, with a |
| 44 | reasonable expectation of success. |
| 45 | (2)(3) At any time in any civil proceeding or action in |
| 46 | which the moving party proves by a preponderance of the evidence |
| 47 | that any action taken by the opposing party, including, but not |
| 48 | limited to, the filing of any pleading or part thereof, the |
| 49 | assertion of or response to any discovery demand, the assertion |
| 50 | of any claim or defense, or the response to any request by any |
| 51 | other party, was taken primarily for the purpose of unreasonable |
| 52 | delay, the court shall award damages to the moving party for its |
| 53 | reasonable expenses incurred in obtaining the order, which may |
| 54 | include attorney's fees, and other loss resulting from the |
| 55 | improper delay. |
| 56 | (3) Notwithstanding subsections (1) and (2), monetary |
| 57 | sanctions may not be awarded: |
| 58 | (a) Under paragraph (1)(b) if the court determines that |
| 59 | the claim or defense was initially presented to the court as a |
| 60 | good faith argument for the extension, modification, or reversal |
| 61 | of existing law or the establishment of new law, as it applied |
| 62 | to the material facts, with a reasonable expectation of success. |
| 63 | (b) Under paragraph (1)(a) or paragraph (1)(b) against the |
| 64 | losing party's attorney if he or she has acted in good faith, |
| 65 | based on the representations of his or her client as to the |
| 66 | existence of those material facts. |
| 67 | (c) Under paragraph (1)(b) against a represented party. |
| 68 | (d) On the court's initiative under subsections (1) and |
| 69 | (2) unless sanctions are awarded before a voluntary dismissal or |
| 70 | settlement of the claims made by or against the party that is, |
| 71 | or whose attorneys are, to be sanctioned. |
| 72 | (4) A motion by a party seeking sanctions under this |
| 73 | section must be served but may not be filed with or presented to |
| 74 | the court unless, within 21 days after service of the motion, |
| 75 | the challenged paper, claim, defense, contention, allegation, or |
| 76 | denial is not withdrawn or appropriately corrected. |
| 77 | (5) In administrative proceedings under chapter 120, an |
| 78 | administrative law judge shall award a reasonable attorney's fee |
| 79 | and damages to be paid to the prevailing party in equal amounts |
| 80 | by the losing party and a losing party's attorney or qualified |
| 81 | representative in the same manner and upon the same basis as |
| 82 | provided in subsections (1)-(4). Such award shall be a final |
| 83 | order subject to judicial review pursuant to s. 120.68. If the |
| 84 | losing party is an agency as defined in s. 120.52(1), the award |
| 85 | to the prevailing party shall be against and paid by the agency. |
| 86 | A voluntary dismissal by a nonprevailing party does not divest |
| 87 | the administrative law judge of jurisdiction to make the award |
| 88 | described in this subsection. |
| 89 | (6) The provisions of this section are supplemental to |
| 90 | other sanctions or remedies available under law or under court |
| 91 | rules. |
| 92 | (7) If a contract contains a provision allowing attorney's |
| 93 | fees to a party when he or she is required to take any action to |
| 94 | enforce the contract, the court may also allow reasonable |
| 95 | attorney's fees to the other party when that party prevails in |
| 96 | any action, whether as plaintiff or defendant, with respect to |
| 97 | the contract. This subsection applies to any contract entered |
| 98 | into on or after October 1, 1988. |
| 99 | Section 2. This act shall take effect July 1, 2010. |