Senate Bill sb2552

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    Florida Senate - 2003                                  SB 2552

    By Senator Campbell





    32-741-03

  1                      A bill to be entitled

  2         An act relating to unsupported claims or

  3         defenses at trial; amending s. 57.105, F.S.;

  4         providing certain exceptions to the requirement

  5         that a motion seeking sanctions against another

  6         party for raising an unsupported claim or

  7         defense be served but not immediately filed

  8         with the court; providing an effective date.

  9  

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

11  

12         Section 1.  Section 57.105, Florida Statutes, is

13  amended to read:

14         57.105  Attorney's fee; sanctions for raising

15  unsupported claims or defenses; service of motions; damages

16  for delay of litigation.--

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

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

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

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

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

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

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

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

25  trial:

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

27  to establish the claim or defense; or

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

29  then-existing law to those material facts.

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    Florida Senate - 2003                                  SB 2552
    32-741-03




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

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

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

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

 5  claimant pursuant to this subsection, the court shall also

 6  award prejudgment interest.

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

 8  determines that the claim or defense was initially presented

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

10  modification, or reversal of existing law or the establishment

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

12  reasonable expectation of success.

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

14  which the moving party proves by a preponderance of the

15  evidence that any action taken by the opposing party,

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

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

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

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

20  purpose of unreasonable delay, the court shall award damages

21  to the moving party for its reasonable expenses incurred in

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

23  other loss resulting from the improper delay.

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

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

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

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

28  allegation, or denial is not withdrawn or appropriately

29  corrected. This subsection does not apply if the trial, final

30  hearing, or trial calendar period is scheduled to begin within

31  30 days and does not apply at any time if the moving party

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    Florida Senate - 2003                                  SB 2552
    32-741-03




 1  clearly demonstrates that the waiting period would defeat the

 2  purpose of the notice requirement.

 3         (5)  The provisions of this section are supplemental to

 4  other sanctions or remedies available under law or under court

 5  rules.

 6         (6)  If a contract contains a provision allowing

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

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

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

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

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

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

13         Section 2.  This act shall take effect July 1, 2003.

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16                          SENATE SUMMARY

17    Provides that the waiting period for filing a motion with
      the court seeking sanctions does not apply if the trial,
18    final hearing, or trial calendar period is scheduled to
      begin within 30 days or if the moving party demonstrates
19    that the waiting period defeats the purpose of the
      motion.
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