Senate Bill 0944
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 1999 SB 944
By Senator Campbell
33-775A-99
1 A bill to be entitled
2 An act relating to civil actions; amending s.
3 57.105, F.S.; revising conditions for award of
4 attorney's fees for presenting unsupported
5 claims or defenses; authorizing damage awards
6 against a party for unreasonable delay of
7 litigation; authorizing the court to impose
8 additional sanctions; amending s. 768.79, F.S.;
9 providing that before awarding costs and fees
10 the court must determine whether the offer was
11 reasonable under the circumstances known at the
12 time the offer was made; providing an effective
13 date.
14
15 Be It Enacted by the Legislature of the State of Florida:
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17 Section 1. Section 57.105, Florida Statutes, is
18 amended to read:
19 57.105 Attorney's fee; sanctions for raising unfounded
20 claims or defenses; damages for delay of litigation.--
21 (1) Upon the court's initiative or motion of any
22 party, the court shall award a reasonable attorney's fee to be
23 paid to the prevailing party in equal amounts by the losing
24 party and the losing party's attorney on any claim or defense
25 at any time during a in any civil proceeding or action in
26 which the court finds that the losing party or the losing
27 party's attorney knew or should have known that a claim or
28 defense when initially presented to the court or at any time
29 before the trial:
30 (a) Was not supported by the material facts necessary
31 to establish the claim or defense; or
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Florida Senate - 1999 SB 944
33-775A-99
1 (b) Would not be supported by the application of
2 then-existing law to those material facts. 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, However, that the losing party's attorney is not
6 personally responsible if he or she has acted in good faith,
7 based on the representations of his or her client as to the
8 existence of those material facts. If the court awards
9 attorney's fees to a claimant under this subsection finds that
10 there was a complete absence of a justiciable issue of either
11 law or fact raised by the defense, the court shall also award
12 prejudgment interest.
13 (2) Subsection (1) does not apply if the court finds
14 that the claim or defense was initially presented to the court
15 as a good-faith attempt, having a reasonable probability of
16 success, to change then-existing law as it applied to the
17 material facts.
18 (3) At any time in a civil proceeding or action in
19 which the moving party proves by a preponderance of the
20 evidence that any action taken by the opposing party,
21 including, but not limited to, the filing of any pleading or
22 part thereof, the assertion of or response to any discovery
23 demand, the assertion of any claim or defense, or the response
24 to any request by any other party, was taken primarily for the
25 purpose of unreasonable delay, the court shall award damages
26 to the moving party for the time necessitated by the conduct
27 in question.
28 (4) The court also may impose additional sanctions or
29 other remedies that are just and warranted under the
30 circumstances of the particular case, including, but not
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Florida Senate - 1999 SB 944
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1 limited to, contempt of court, award of taxable costs,
2 striking of a claim or defense, or dismissal of the pleading.
3 (5)(2) If a contract contains a provision allowing
4 attorney's fees to a party when he or she is required to take
5 any action to enforce the contract, the court may also allow
6 reasonable attorney's fees to the other party when that party
7 prevails in any action, whether as plaintiff or defendant,
8 with respect to the contract. This subsection applies to any
9 contract entered into on or after act shall take effect
10 October 1, 1988, and shall apply to contracts entered into on
11 said date or thereafter.
12 Section 2. Subsection (7) of section 768.79, Florida
13 Statutes, is amended to read:
14 768.79 Offer of judgment and demand for judgment.--
15 (7)(a) If a party is entitled to costs and fees
16 pursuant to the provisions of this section, the court may, in
17 its discretion, determine that an offer was not made in good
18 faith. In such case, the court may disallow an award of costs
19 and attorney's fees.
20 (b) When determining the entitlement to and
21 reasonableness of an award of attorney's fees pursuant to this
22 section, the court shall consider, along with all other
23 relevant criteria, the following additional factors:
24 1. The then apparent merit or lack of merit in the
25 claim.
26 2. The number and nature of offers made by the
27 parties.
28 3. The closeness of questions of fact and law at
29 issue.
30 4. Whether the proposal was reasonably rejected.
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Florida Senate - 1999 SB 944
33-775A-99
1 5.4. Whether the person making the offer had
2 unreasonably refused to furnish information necessary to
3 evaluate the reasonableness of such offer.
4 6.5. Whether the suit was in the nature of a test case
5 presenting questions of far-reaching importance affecting
6 nonparties.
7 7.6. The amount of the additional delay cost and
8 expense that the person making the offer reasonably would be
9 expected to incur if the litigation should be prolonged.
10 Section 3. This act shall take effect October 1, 1999.
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13 SENATE SUMMARY
14 Revises conditions for the award of attorney's fees when
unsupported claims or defenses are presented. Authorizes
15 damages for unreasonable delay of litigation. Requires
the court to determine whether a proposal was reasonably
16 rejected when awarding costs and fees.
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