House Bill hb0487

    Florida House of Representatives - 2002                 HB 487

        By Representative Seiler






  1                      A bill to be entitled

  2         An act relating to attorney's fees; amending s.

  3         57.105, F.S.; providing for serving of motions

  4         seeking sanctions allowed for unsupported

  5         claims or defenses or delay of litigation;

  6         providing an effective date.

  7

  8  Be It Enacted by the Legislature of the State of Florida:

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10         Section 1.  Section 57.105, Florida Statutes, is

11  amended to read:

12         57.105  Attorney's fee; sanctions for raising

13  unsupported claims or defenses; service of motions; damages

14  for delay of litigation.--

15         (1)  Upon the court's initiative or motion of any

16  party, the court shall award a reasonable attorney's fee to be

17  paid to the prevailing party in equal amounts by the losing

18  party and the losing party's attorney on any claim or defense

19  at any time during a civil proceeding or action in which the

20  court finds that the losing party or the losing party's

21  attorney knew or should have known that a claim or defense

22  when initially presented to the court or at any time before

23  trial:

24         (a)  Was not supported by the material facts necessary

25  to establish the claim or defense; or

26         (b)  Would not be supported by the application of

27  then-existing law to those material facts.

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29  However, the losing party's attorney is not personally

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

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

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    Florida House of Representatives - 2002                 HB 487

    794-111-02






  1  those material facts. If the court awards attorney's fees to a

  2  claimant pursuant to this subsection, the court shall also

  3  award prejudgment interest.

  4         (2)  Paragraph (1)(b) does not apply if the court

  5  determines that the claim or defense was initially presented

  6  to the court as a good faith argument for the extension,

  7  modification, or reversal of existing law or the establishment

  8  of new law, as it applied to the material facts, with a

  9  reasonable expectation of success.

10         (3)  At any time in any civil proceeding or action in

11  which the moving party proves by a preponderance of the

12  evidence that any action taken by the opposing party,

13  including, but not limited to, the filing of any pleading or

14  part thereof, the assertion of or response to any discovery

15  demand, the assertion of any claim or defense, or the response

16  to any request by any other party, was taken primarily for the

17  purpose of unreasonable delay, the court shall award damages

18  to the moving party for its reasonable expenses incurred in

19  obtaining the order, which may include attorney's fees, and

20  other loss resulting from the improper delay.

21         (4)  A motion by a party seeking sanctions under this

22  section must be served but may not be filed with or presented

23  to the court unless, within 21 days after service of the

24  motion, the challenged paper, claim, defense, contention,

25  allegation, or denial is not withdrawn or appropriately

26  corrected.

27         (5)(4)  The provisions of this section are supplemental

28  to other sanctions or remedies available under law or under

29  court rules.

30         (6)(5)  If a contract contains a provision allowing

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

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    Florida House of Representatives - 2002                 HB 487

    794-111-02






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

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

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

  4  with respect to the contract. This subsection applies to any

  5  contract entered into on or after October 1, 1988.

  6         Section 2.  This act shall take effect July 1, 2002.

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  9                          SENATE SUMMARY

10    Provides conditions for serving a motion seeking
      sanctions specified under s. 57.105, F.S., for filing
11    unsupported claims or defenses or for delay of
      litigation.
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CODING: Words stricken are deletions; words underlined are additions.