[CLC-Discussion] 57.105(1) Question - If a motion subject to a 57.105 notice is ruled upon (denied) within the 21 day safe harbor period, does such ruling negate the requirement to withdraw the subject motion under 57.105(4)?

Thu Apr 13 16:16:14 PDT 2017

Did the judge address whether the motion was frivolous? Did he rule in favor of the movant? Is this an issue that would require cert to get to an appellate court, or did it dispose of the case?

I think there is some ambiguity in the statute and I have never seen a case on point if the issue gets heard before the 21 day period.

It seems like you would be out of luck if a court ruled in favor of the movant because the court couldn't reach its decision in favor of the movant if it was not supported by the application of the facts to the then existing law etc.especially if it is a case that would require certiori which can be hard to get (Unless an appellate court reversed)  

That being said there is the Ganz case that says that you should be able to wait until the case is over to deal with 57.105 issues and it doesn't require a request for attorney fees under stockman. So arguably, you might be able to take this up after the issues are disposed of and then appeal. 

-----Original Message-----
From: "RONALD KAUFMAN" <rek at reklawfirm.com>
Sent: Thursday, April 13, 2017 6:46pm
To: "Sean A. Mickley" <smickley at gouldcooksey.com>
Cc: "<clc-discussion at lists.flabarrpptl.org>" <clc-discussion at lists.flabarrpptl.org>
Subject: Re: [CLC-Discussion] 57.105(1) Question - If a motion subject to a 57.105 notice is ruled upon (denied) within the 21 day safe harbor period, does such ruling negate the requirement to withdraw the subject motion under 57.105(4)?

I'll attempt to clarify:  Court ruled on the underlying motion to which the 57.105 notice was directed (the "Motion") within the 21 day safe harbor period (i.e. within 21 days of being served with the notice).  Does the fact that the Motion was ruled upon within the 21 day safe harbor period render the 57.105 motion moot? 

Sincerely,

Ronald E. Kaufman, Esq.
Board Certified Construction Attorney
Certified Circuit Civil Mediator

Law Offices of Ronald E. Kaufman, P.A.
3399 Ponce De Leon Boulevard, suite 202
Coral Gables, FL 33134
Main Telephone: (305) 444-1500
Facsimile: (305) 675-3327
Email: [ rek at reklawfirm.com ]( mailto:rekesq at gmail.com )
Website: [ www.miamiconstructionattorney.info ]( http://www.miamiconstructionattorney.info/ )

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On Thu, Apr 13, 2017 at 6:10 PM, Sean A. Mickley <[ smickley at gouldcooksey.com ]( mailto:smickley at gouldcooksey.com )> wrote:

If I understand the question correctly, you (or someone else) filed a Motion for Sanctions pursuant to 57.105, Fla. stat., but failed to provide the requisite 21 day notice prior to filing; however, the Court denied the 57.105 Motion anyways…

If that is correct, then the Court has already ruled and there withdrawal is a moot point. 

Also, if they filed the 57.105 Motion with the Court prior to the expiration of the 21 safe harbor period, then they did not comply with the statute anyways and they would not be entitled to fees.

From: [ clc-discussion-bounces at lists.flabarrpptl.org ]( mailto:clc-discussion-bounces at lists.flabarrpptl.org ) [mailto:[ clc-discussion-bounces at lists.flabarrpptl.org ]( mailto:clc-discussion-bounces at lists.flabarrpptl.org )] On Behalf Of RONALD KAUFMAN
Sent: Thursday, April 13, 2017 5:52 PM
To: <[ clc-discussion at lists.flabarrpptl.org ]( mailto:clc-discussion at lists.flabarrpptl.org )> <[ clc-discussion at lists.flabarrpptl.org ]( mailto:clc-discussion at lists.flabarrpptl.org )>
Subject: [CLC-Discussion] 57.105(1) Question - If a motion subject to a 57.105 notice is ruled upon (denied) within the 21 day safe harbor period, does such ruling negate the requirement to withdraw the subject motion under 57.105(4)?

Sincerely,

 Ronald E. Kaufman, Esq.
Board Certified Construction Attorney
 Certified Circuit Civil Mediator

Law Offices of Ronald E. Kaufman, P.A.

3399 Ponce De Leon Boulevard, suite 202
 Coral Gables, FL 33134
 Main Telephone: [ (305) 444-1500 ]( tel:(305)%20444-1500 )
 Facsimile: [ (305) 675-3327 ]( tel:(305)%20675-3327 )
 Email: [ rek at reklawfirm.com ]( mailto:rekesq at gmail.com )
 Website: [ www.miamiconstructionattorney.info ]( http://www.miamiconstructionattorney.info/ )

Pursuant to the Fair Debt Collection Practices Act you are hereby advised that portion of our practice involves the collections of debts and any information obtained may be used for that purpose.

NOTICE OF CONFIDENTIALITY:
 The information contained in this mail is intended for the use of the intended recipient only and may be confidential and attorney privileged. If that is not you stop reading, do not distribute or copy this mail, rather advise me of your receipt, in writing.  
CIRCULAR 230 NOTICE:
 Unless expressly stated otherwise, any U.S. federal tax advice contained in this transmittal, is not intended or written to be used, and cannot be used, by any person for the purpose of (i) avoiding penalties under the U.S. Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this e-mail or attachment.
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