Posted by Nydia Streets of Streets Law in Florida Family Law Procedure

What is a 57.105 motion in a Florida family law case? This is a motion which asks the court for sanctions against a party and/or the party’s attorney for raising unsupported claims in a proceeding. 57.105 refers to the Florida Statute section which authorizes this fee. That section of the statute requires that specific steps be taken before this motion can be filed. This was an issue in the case Fantauzzi v. Fleck, 2D23-1390 (Fla. 2d DCA April 3, 2024).

The underlying case to this appeal was not a family law case, but the issue of attorney’s fees as a sanction is something that arises in family law cases commonly. A petitioner originally representing himself filed a lawsuit against an attorney. The attorney filed motions for sanctions against the petitioner, and the trial court eventually entered a judgment against the petitioner and awarding fees to the defending attorney. The petitioner appealed that final judgment, and the attorney again sought fees under 57.105. After this, another attorney entered a notice of appearance on the petitioner’s behalf. Eventually, that attorney withdrew prior to the court holding a hearing on the motion for sanctions against the petitioner.

The motion for sanctions went forward, and because the petitioner’s attorney withdrew beforehand, he did not attend the hearing. Later, he received a final judgment which awarded sanctions against the petitioner and the petitioner’s former attorney. Because more than 30 days had passed since the entry of the judgment, the petitioner’s former attorney filed a motion to set aside the judgment under Fla. R. Civ. P. 1.540, arguing the judgment was void against him because his due process rights had been violated - he was never informed the sanctions sought were against him and he did not receive the safe harbor letter under Fla. Stat. 57.105. The trial court denied the motion and he appealed.

The appellate court reversed, holding “Neither the motion for appellate attorney's fees filed in the prior appeal when Day was pro se nor the notices for the fee hearing thereafter filed in the trial court gave any indication that Fleck was seeking an award of fees against Fantauzzi. And as previously discussed, the order entered in the prior appeal granting Fleck's motion for fees contained no finding that Fleck was entitled to recover fees against Fantauzzi. The absence of such a finding is not surprising considering that Fantauzzi was not involved in the case until weeks after Fleck's only motion for fees had been filed. Further, nothing in our record shows that Fleck complied with the safe harbor provision mandated by section 57.105(4) prior to asking the trial court to award fees against Fantauzzi. Presumably, Fantauzzi would have been on notice that Fleck was seeking fees against him had Fleck established his compliance with that provision.”

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