MARK W. RICKARD, P.A., d/b/a LAW GUARD v. NATURE'S SLEEP FACTORY DIRECT, LLC. , 261 So. 3d 567 ( 2018 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MARK W. RICKARD, P.A. d/b/a LAW GUARD, and WERNER MEDIA
PARTNERS, LLC d/b/a NATURE’S SLEEP,
Appellants,
v.
NATURE’S SLEEP FACTORY DIRECT, LLC, GREEN LIVES HERE,
LLC, and STEVEN D. GORDON,
Appellees.
No. 4D18-374
[October 31, 2018]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carol-Lisa Phillips, Judge; L.T. Case No. CACE13-
011560-25.
Mark W. Rickard of Law Guard, Plantation, for appellants.
Geoffrey D. Ittleman of the Law Offices of Geoffrey D. Ittleman, P.A.,
Fort Lauderdale, for appellees.
FORST, J.
Appellants Mark W. Rickard (d/b/a Law Guard) and Nature’s Sleep
(“NS”) appeal the denial of their section 57.105(1)(b), Florida Statutes
(2017) sanctions motion. That motion was premised on the failure of
Appellees Green Lives Here (“GLH”) and Steven D. Gordon (“Gordon”) to
withdraw their motion for prevailing party attorney’s fees within the
twenty-one-day safe harbor period. Concluding that the trial court acted
in contravention of the statute, we reverse.
Background
NS, a supplier, sued Nature’s Sleep Factory Direct, LLC (“NSFD”), GLH
and Gordon, for breach of contract, misleading and false advertising, and
defamation. The defendants filed an answer, affirmative defenses and a
counterclaim. At the beginning of trial, NS announced a voluntary
dismissal of its claims against Gordon and GLH (“Appellees”). 1
In light of the voluntary dismissal, Appellees filed and served a motion
for prevailing party attorney’s fees, costs and expenses against the
plaintiff, NS. The next business day, NS filed a response to Appellees’
motion and also served, without filing, a motion for sanctions pursuant to
section 57.105(1)(b). The motion addressed Appellees’ failure to timely
plead entitlement to attorney’s fees, as required by Stockman v. Downs,
573 So. 2d 835, 838 (Fla. 1991). Pursuant to section 57.105(4), Appellees
were informed that they had twenty-one days to withdraw their attorney’s
fees motion. After the twenty-one-day safe harbor period expired with no
withdrawal of the fees’ motion, NS filed its sanctions motion, and a hearing
was scheduled. A few days before the hearing, and twenty-three days after
the safe harbor period had expired, Appellees withdrew their motion for
fees and costs.
At the hearing, Appellees’ attorney conceded that the attorney’s fees
motion was meritless because it had not been timely pled. He explained
he could not get approval to revoke the motion during the safe harbor
period because Gordon (the sole officer of GLH) was out of the country at
the time and unreachable.
At the hearing, the trial court stated that NS’s request for fees of 4.65
hours at $450 an hour ($2,092.50) for analyzing Appellees’ motion and
drafting the 57.105 sanctions motion was “very reasonable.” The trial
judge stated that she “hate[s] these motions on a personal level,” but also
acknowledged that “the Appellate Courts look at these very strictly.” The
trial court subsequently rendered an order summarily denying NS’s
motion for sanctions.
Analysis
We review the trial court’s denial of attorney’s fees under
section 57.105(1), Florida Statutes, for an abuse of discretion.
Ferere v. Shure, 65 So. 3d 1141, 1144 (Fla. 4th DCA 2011).
To the extent the trial court’s determination on a motion for
attorney’s fees is based on an issue of law, our standard of
review is de novo. Id.Paul v. Avrahami, 216 So. 3d 647, 649 (Fla. 4th DCA 2017).
1The plaintiff prevailed at trial on its claims against NSFD and on the defendants’
counterclaim.
2
Section 57.105(1) provides for attorney’s fees as sanctions for being
forced to participate in frivolous litigation. In determining whether to
award such fees, “[t]he [trial] court determines if the party or its counsel
knew or should have known that the claim or defense asserted was not
supported by the facts or an application of existing law.” Blue Infiniti, LLC
v. Wilson, 170 So. 3d 136, 140 (Fla. 4th DCA 2015) (alterations in original)
(quoting Asinmaz v. Semrau, 42 So. 3d 955, 957 (Fla. 4th DCA 2010)).
Motions for attorney’s fees count as “claims.” See Albritton v. Ferrera, 913
So. 2d 5, 9 (Fla. 1st DCA 2005).
Typically, a party seeking attorney’s fees must specifically allege and
request the award in the pleadings. Walker v. Cash Register Auto Ins. of
Leon Cty., Inc., 946 So. 2d 66, 72 (Fla. 1st DCA 2006) (citing Stockman,
573 So. 2d at 835). NS so advised Appellee’s counsel when it notified him
that his failure to request fees in his clients’ pleadings rendered the post-
dismissal motion for fees meritless. Thus, Appellees’ counsel had no
excuse for failing to withdraw the motion. See Paul, 216 So. 3d at 651.
However, Appellees’ counsel failed to withdraw the meritless motion until
well after the safe harbor period had passed, arguing that his “hands were
tied” until he could consult with his client.
That Appellees withdrew their motion before the sanctions hearing
(though after the twenty-one-day safe harbor period) did not “divest [the]
trial court of jurisdiction to award sanctions under section 57.105.” Heldt-
Pope v. Thibault, 198 So. 3d 650, 652 (Fla. 2d DCA 2015). And Appellees’
attorney’s unsworn statements about Gordon’s absence from the country
did not constitute evidence. See Brown v. Sch. Bd. of Palm Beach County,
855 So. 2d 1267, 1269-70 (Fla. 4th DCA 2003) (reversing after a sanctions
hearing was dominated by counsels’ unsworn statements).
Moreover, the inability to reach one’s client does not excuse an attorney
from the requirement to withdraw a frivolous motion under section 57.105.
As an officer of the court, Appellees’ attorney had a duty to withdraw his
admittedly nonmeritorious motion with or without his clients’ permission.
See R. Regulating Fla. Bar 4-3.1; see also De Vaux v. Westwood Baptist
Church, 953 So. 2d 677, 684 (Fla. 1st DCA 2007). Furthermore, the
attorney, not the client, is the party responsible for the fees awarded under
section 57.105(1)(b). See § 57.105(3)(c) (“[M]onetary sanctions may not be
awarded . . . [u]nder paragraph 1(b) against a represented party.”).
Appellees did not dispute that their “attorney knew or should have
known that [the] claim [for prevailing party attorney’s fees] when initially
presented to the court or at any time before trial . . . [w]ould not be
supported by the application of then-existing law to those material facts.”
3
§ 57.105(1)(b). Accordingly, as NS timely and properly filed a motion in
accordance with section 57.105(4), the trial court lacked discretion to deny
this motion beyond the exceptions noted in section 57.105(3) (none of
which are applicable here, other than 57.105(3)(c), as discussed above).
The statute clearly states that in this situation, “the court shall award a
reasonable attorney’s fee . . . .” § 57.105(1) (emphasis added); see also
Paul, 216 So. 3d at 650; Martin Cty. Conservation All. v. Martin Cty., 73 So.
3d 856, 859 (Fla. 1st DCA 2011).
Conclusion
The trial court’s failure to grant NS’s motion for attorney’s fees was in
derogation of an express requirement of the statute. There is no exception
for attorneys who feel restrained from dropping a claim which the attorney
has come to understand is not legally supported because the attorney has
not had an opportunity to consult with his client.
Because the trial court found that NS’s request for fees was reasonable,
we simply remand for entry of an award of $2,092.50 to NS.
Reversed and Remanded.
WARNER and MAY, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
4