[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)?

[RONALD KAUFMAN]

The Judge, in ruling on the Motion, did not find the Motion frivolous or
award attorney fees (and the opposition noted that a 57.105 notice was
served in connection with the Motion in its response filed in opposition to
the Motion and the 57.105 notice was mentioned during oral argument at
hearing).  Current status is that the opposition filed its 57.105 motion
(post order denying the Motion).

My initial thought was since Judge did not award fees (own initiative) or
even deem motion frivolous (for future ruling pursuant to the 57.105
notice/motion which the Court was on notice of) at hearing on the Motion
that the 57.105 motion is moot.

That said and for argument's sake, would setting a frivolous motion subject
to a 57.105 notice for hearing and having the motion ruled upon within the
21 day safe harbor period be a viable way to avoid the ramifications
thereof?  Or does having a frivolous motion heard within the safe harbor
period result in a waiver of the safe harbor period?

Thank you all!




Sincerely,

Ronald E. Kaufman, Esq.

*Board Certified Construction AttorneyCertified 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 <rekesq at gmail.com>
Website: www.miamiconstructionattorney.info



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On Thu, Apr 13, 2017 at 7:16 PM, dagee at reidagee.com <dagee at reidagee.com>
wrote:

> 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 AttorneyCertified 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 <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.
>
> 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: rek at reklawfirm.com <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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