[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 06:46:55 PDT 2017

If the motion was ruled upon in a final manner, it seems it can no longer be withdrawn.  (I guess a question of whether a 10 day period for rehearing effects that concept.).

It may matter who brought the matter for hearing.  If the party submitting the 57.105 set the hearing, then it did not comply with the 21 day period and should not be able to seek redress.  If the Court set the hearing, the moving party did not get the 21 days and should not be penalized.  However, if the moving party set the hearing, then it seems that right to withdraw the motion was waived or repudiated.  The moving party elected not to use its statutory right, so I would say it could not complain that it had 21 days, or otherwise attempt to later withdraw the motion, in an effort to avoid fees.

Paul

Paul S. Martin, Esq.
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-----Original Message-----
From: RONALD KAUFMAN <rek at reklawfirm.com>
To: Sean A. Mickley <smickley at gouldcooksey.com>
Cc: <clc-discussion at lists.flabarrpptl.org> <clc-discussion at lists.flabarrpptl.org>
Sent: Thu, Apr 13, 2017 6:47 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)?

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.

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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: rek at reklawfirm.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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