Florida Senate - 2010 SB 1108
By Senator Constantine
22-00364A-10 20101108__
1 A bill to be entitled
2 An act relating to sanctions for certain court
3 pleadings; amending s. 57.105, F.S.; prohibiting a
4 monetary sanction against a represented party for a
5 claim that is presented as a good faith argument but
6 that is found to not be supported by the application
7 of then-existing law to material facts; prohibiting
8 sanctions against a party or its attorneys by a court
9 on its own initiative if the case has already been
10 settled or voluntarily dismissed by that party;
11 providing an effective date.
12
13 Be It Enacted by the Legislature of the State of Florida:
14
15 Section 1. Section 57.105, Florida Statutes, is amended to
16 read:
17 57.105 Attorney’s fee; sanctions for raising unsupported
18 claims or defenses; exceptions; service of motions; damages for
19 delay of litigation.—
20 (1) Upon the court’s initiative or motion of any party, the
21 court shall award a reasonable attorney’s fee, including
22 prejudgment interest, to be paid to the prevailing party in
23 equal amounts by the losing party and the losing party’s
24 attorney on any claim or defense at any time during a civil
25 proceeding or action in which the court finds that the losing
26 party or the losing party’s attorney knew or should have known
27 that a claim or defense when initially presented to the court or
28 at any time before trial:
29 (a) Was not supported by the material facts necessary to
30 establish the claim or defense; or
31 (b) Would not be supported by the application of then
32 existing law to those material facts.
33
34 However, the losing party’s attorney is not personally
35 responsible if he or she has acted in good faith, based on the
36 representations of his or her client as to the existence of
37 those material facts. If the court awards attorney’s fees to a
38 claimant pursuant to this subsection, the court shall also award
39 prejudgment interest.
40 (2) Paragraph (1)(b) does not apply if the court determines
41 that the claim or defense was initially presented to the court
42 as a good faith argument for the extension, modification, or
43 reversal of existing law or the establishment of new law, as it
44 applied to the material facts, with a reasonable expectation of
45 success.
46 (2)(3) At any time in any civil proceeding or action in
47 which the moving party proves by a preponderance of the evidence
48 that any action taken by the opposing party, including, but not
49 limited to, the filing of any pleading or part thereof, the
50 assertion of or response to any discovery demand, the assertion
51 of any claim or defense, or the response to any request by any
52 other party, was taken primarily for the purpose of unreasonable
53 delay, the court shall award damages to the moving party for its
54 reasonable expenses incurred in obtaining the order, which may
55 include attorney’s fees, and other loss resulting from the
56 improper delay.
57 (3) Notwithstanding subsections (1) and (2), monetary
58 sanctions may not be awarded:
59 (a) Under paragraph (1)(b) if the court determines that the
60 claim or defense was initially presented to the court as a good
61 faith argument for the extension, modification, or reversal of
62 existing law or the establishment of new law, as it applied to
63 the material facts, with a reasonable expectation of success.
64 (b) Under paragraph (1)(a) or paragraph (1)(b) against the
65 losing party’s attorney if he or she has acted in good faith,
66 based on the representations of his or her client as to the
67 existence of those material facts. In cases where a voluntary
68 dismissal is entered after the court has placed a party on
69 notice that it may impose sanctions, the court has discretion to
70 order sanctions notwithstanding the filing of the voluntary
71 dismissal.
72 (c) Under paragraph (1)(b) against a represented party,
73 unless the court determines that the party knew of the lack of
74 legal basis.
75 (d) On the court’s initiative under subsections (1) and (2)
76 unless sanctions are awarded before a voluntary dismissal or
77 settlement of the claims made by or against the party that is,
78 or whose attorneys are, to be sanctioned.
79 (4) A motion by a party seeking sanctions under this
80 section must be served but may not be filed with or presented to
81 the court unless, within 21 days after service of the motion,
82 the challenged paper, claim, defense, contention, allegation, or
83 denial is not withdrawn or appropriately corrected.
84 (5) In administrative proceedings under chapter 120, an
85 administrative law judge shall award a reasonable attorney’s fee
86 and damages to be paid to the prevailing party in equal amounts
87 by the losing party and a losing party’s attorney or qualified
88 representative in the same manner and upon the same basis as
89 provided in subsections (1)-(4). Such award shall be a final
90 order subject to judicial review pursuant to s. 120.68. If the
91 losing party is an agency as defined in s. 120.52(1), the award
92 to the prevailing party shall be against and paid by the agency.
93 A voluntary dismissal by a nonprevailing party does not divest
94 the administrative law judge of jurisdiction to make the award
95 described in this subsection.
96 (6) The provisions of this section are supplemental to
97 other sanctions or remedies available under law or under court
98 rules.
99 (7) If a contract contains a provision allowing attorney’s
100 fees to a party when he or she is required to take any action to
101 enforce the contract, the court may also allow reasonable
102 attorney’s fees to the other party when that party prevails in
103 any action, whether as plaintiff or defendant, with respect to
104 the contract. This subsection applies to any contract entered
105 into on or after October 1, 1988.
106 Section 2. This act shall take effect July 1, 2010.