October 17, 2019
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       Florida Senate - 2010                             CS for SB 1108
       
       
       
       By the Committee on Judiciary; and Senator Constantine
       
       
       
       
       590-03776-10                                          20101108c1
    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.
   68         (c)Under paragraph (1)(b) against a represented party.
   69         (d)On the court’s initiative under subsections (1) and (2)
   70  unless sanctions are awarded before a voluntary dismissal or
   71  settlement of the claims made by or against the party that is,
   72  or whose attorneys are, to be sanctioned.
   73         (4) A motion by a party seeking sanctions under this
   74  section must be served but may not be filed with or presented to
   75  the court unless, within 21 days after service of the motion,
   76  the challenged paper, claim, defense, contention, allegation, or
   77  denial is not withdrawn or appropriately corrected.
   78         (5) In administrative proceedings under chapter 120, an
   79  administrative law judge shall award a reasonable attorney’s fee
   80  and damages to be paid to the prevailing party in equal amounts
   81  by the losing party and a losing party’s attorney or qualified
   82  representative in the same manner and upon the same basis as
   83  provided in subsections (1)-(4). Such award shall be a final
   84  order subject to judicial review pursuant to s. 120.68. If the
   85  losing party is an agency as defined in s. 120.52(1), the award
   86  to the prevailing party shall be against and paid by the agency.
   87  A voluntary dismissal by a nonprevailing party does not divest
   88  the administrative law judge of jurisdiction to make the award
   89  described in this subsection.
   90         (6) The provisions of this section are supplemental to
   91  other sanctions or remedies available under law or under court
   92  rules.
   93         (7) If a contract contains a provision allowing attorney’s
   94  fees to a party when he or she is required to take any action to
   95  enforce the contract, the court may also allow reasonable
   96  attorney’s fees to the other party when that party prevails in
   97  any action, whether as plaintiff or defendant, with respect to
   98  the contract. This subsection applies to any contract entered
   99  into on or after October 1, 1988.
  100         Section 2. This act shall take effect July 1, 2010.

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