[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)?

Fri Apr 14 04:53:44 PDT 2017

Mr. Kaufman.  See attached decision.  I believe it is squarely directed 
to your  question.

Regards,

G. Elliott
Gregory T. Elliott
ELLIOTT - BERGER, P. A.
10225 Ulmerton Road, Suite 4A
Largo, Florida 33771
(727) 360-2600 (Phone)
(727) 360-6588 (Fax)

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------ Original Message ------
From: "dagee at reidagee.com" <dagee at reidagee.com>
To: "RONALD KAUFMAN" <rek at reklawfirm.com>
Cc: "<clc-discussion at lists.flabarrpptl.org>" 
<clc-discussion at lists.flabarrpptl.org>
Sent: 4/13/2017 7:16:14 PM
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)?

>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: mailto:rekesq at gmail.com
>Website: 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.
>
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>
>On Thu, Apr 13, 2017 at 6:10 PM, Sean A. Mickley 
><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] On Behalf Of 
>>RONALD KAUFMAN
>>Sent: Thursday, April 13, 2017 5:52 PM
>>To: <clc-discussion at lists.flabarrpptl.org> 
>><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
>>Facsimile: (305) 675-3327
>>Email: mailto:rekesq at gmail.com
>>Website: 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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