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





                                                  SENATE AMENDMENT

    Bill No. CS for SB 874

    Amendment No.    

                            CHAMBER ACTION
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11  Senators Sullivan and Rossin moved the following amendment:

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13         Senate Amendment 

14         On page 12, line 26, through page 14, line 31, delete

15  those lines

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17  and insert:

18         Section 4.  Section 57.105, Florida Statutes, is

19  amended to read:

20         57.105  Attorney's fee; sanctions for raising unfounded

21  claims or defenses; damages for delay of litigation.--

22         (1)  The court shall award a reasonable attorney's fee

23  to be paid to the prevailing party in equal amounts by the

24  losing party and the losing party's attorney in any civil

25  action in which the court finds that the losing party or the

26  losing party's attorney knew, or with diligent inquiry in the

27  time available to present the claim or defense should have

28  known, before presenting the claim or defense:

29         (a)  That the claim or defense was not supported by the

30  material facts necessary to establish the claim or defense; or

31         (b)  That the application of then-existing law to those

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 874

    Amendment No.    





 1  material facts known to the losing party or losing party's

 2  attorney would not support the claim or defense. there was a

 3  complete absence of a justiciable issue of either law or fact

 4  raised by the complaint or defense of the losing party;

 5  provided,

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 7  However, that the losing party's attorney is not personally

 8  responsible if he or she has acted in good faith, based on the

 9  representations of his or her client as to the existence of

10  material facts.  If the court awards fees to a claimant

11  pursuant to this subsection finds that there was a complete

12  absence of a justiciable issue of either law or fact raised by

13  the defense, the court shall also award prejudgment interest.

14         (2)  Subsection (1) shall not apply if the court

15  determines that the claim or defense was presented as a

16  good-faith attempt with a reasonable probability of damaging

17  the then-existing law as it applied to the facts the losing

18  party or losing party's attorney knew at the time the claim or

19  defense was presented.

20         (3)  If any plaintiff or defendant has been sanctioned

21  under subsection (1) in more than 25 percent of the actions

22  that are filed, or in which a defense has been filed, by that

23  party, then in any further litigation in which that plaintiff

24  or defendant is a party, whether or not related to the actions

25  in which the sanctions were imposed, the opposing party is

26  entitled to have the claims or defenses of such plaintiff or

27  defendant stricken unless such plaintiff or defendant first

28  makes a prima facie showing that the claims or defenses are

29  brought in good faith, applying then-existing law or applying

30  a good-faith attempt to change the then-existing law, and

31  supported by the material facts necessary to establish the

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 874

    Amendment No.    





 1  claim or defense.  Furthermore, the court may impose such

 2  additional sanctions or requirements as are just and warranted

 3  under the circumstances of the particular case.

 4         (4)  In any civil proceeding in which the moving party

 5  proves, by a preponderance of the evidence, that any action

 6  taken by the opposing party, including, but not limited to,

 7  the filing of any pleading or part thereof, the assertion of

 8  or response to any discovery demand, the assertion of any

 9  claim or defense, or the response to any request by any other

10  party, was taken primarily for the purpose of unreasonable

11  delay, the court shall award damages to the moving party for

12  the time necessitated by the conduct in question.

13         (5)(2)  If a contract contains a provision allowing

14  attorney's fees to a party when he or she is required to take

15  any action to enforce the contract, the court may also allow

16  reasonable attorney's fees to the other party when that party

17  prevails in any action, whether as plaintiff or defendant,

18  with respect to the contract. The subsection applies to any

19  contract entered into on or after October 1, 1988.  This act

20  shall take effect October 1, 1988, and shall apply to

21  contracts entered into on said date or thereafter.

22         Section 5.  Effective October 1, 1999, subsection (3)

23  of section 57.105, Florida Statutes, as amended by this act,

24  is amended to read:

25         57.105  Attorney's fee; sanctions for raising unfounded

26  claims or defenses; damages for delay of litigation.--

27         (3)  If any plaintiff or defendant has been sanctioned

28  under subsection (1) in more than 10 25 percent of the actions

29  that are filed, or in which a defense has been filed, by that

30  party, then in any further litigation in which that plaintiff

31  or defendant is a party, whether or not related to the actions

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 874

    Amendment No.    





 1  in which the sanctions were imposed, the opposing party is

 2  entitled to have the claims or defenses of such plaintiff or

 3  defendant stricken unless such plaintiff or defendant first

 4  makes a prima facie showing that the claims or defenses are

 5  brought in good faith, applying then-existing law or applying

 6  a good-faith attempt to change the then-existing law, and

 7  supported by the material facts necessary to establish the

 8  claim or defense.  Furthermore, the court may impose such

 9  additional sanctions or requirements as are just and warranted

10  under the circumstances of the particular case.

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12  (Redesignate subsequent sections.)

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