Wednesday, April 22, 2009

Strict Compliance Required for Attorneys Fees Pursuant to 57.105

In Anchor Towing, Inc. v. Fla. Dept. of Transp. (3D08-1720) the Third DCA reversed an award of attorneys fees awarded pursuant to Section 57.105, Florida Statutes. The party failed to send the motion required by statute with the demand letter. The court held:
The letter that Sunshine’s counsel sent to Anchor’s counsel threatening to seek attorney’s fees does not meet the mandatory notice requirements of section 57.105(4). The letter sent to opposing counsel is not the same as the statutorily required motion, which is required to be served on opposing counsel and later filed with the court. Nathan v. Bates, 998 So. 2d 1178, 1179 (Fla. 3d DCA 2008) ("The statute . . . clearly provides for a motion, not a letter."). Filing the motion with the court after the proceedings concluded also does not comply with the statute, as Anchor did not then have the statutorily required twenty-one days in which to withdraw the objected to
claims. O’Daniel v. Bd. Of Comm’rs, 916 So. 2d 40 (Fla. 3d DCA 2006) (striking attorney’s fees under section 57.105(4) where the defendant waited until the case was over to file its fee motion).


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