ANCHOR TOWING, INC. AND MIGUEL DE GRANDY, P.A., APPELLANTS,
v.
FLORIDA DEPARTMENT OF TRANSPORTATION AND SUNSHINE TOWING, INC., APPELLEES
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Anchor Towing appeals an administrative award of attorney's fees to Sunshine Towing under section 57.105, Florida Statutes. The court reverses, holding that Sunshine failed to comply with the statute's mandatory notice requirements, which require service of a motion (not a letter) at least 21 days before filing to allow the opposing party time to withdraw the challenged claims.
No. Sunshine did not comply with section 57.105(4)'s mandatory notice requirements. A demand letter sent to opposing counsel does not satisfy the statute's requirement for a motion, and filing the motion after proceedings concluded deprived Anchor of the statutorily required 21-day period to withdraw its objections.
[1] A motion for attorney's fees under section 57.105, Florida Statutes, must be strictly construed as it awards fees in derogation of the common law.
[2] A party seeking attorney's fees under section 57.105, Florida Statutes, must serve a motion on opposing counsel.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.”
This excerpt from section 57.105(4) establishes the mandatory procedural requirements for seeking attorney's fees, requiring strict compliance.
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Join FLexlaw to unlock all legal intelligenceAnchor Towing and Sunshine Towing submitted competing bids for a Florida Department of Transportation highway assistance contract in Miami-Dade County…
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Anchor Towing, Inc., seeks to reverse the administrative final order awarding Sunshine Towing, Inc.’s attorney’s fees under section 57.105, Florida Statutes (2005). We find that Sunshine did not comply with the mandatory notice requirements of section 57.105 and, therefore, reverse and remand.
This final chapter of the long and contentious dispute between these two parties arises out of Anchor and Sunshine’s competing bids to be awarded the Florida Department of Transportation’s contract to provide highway assistance service to disabled motorists on certain highways in Miami-Dade County. After two very lengthy administrative hearings and an appeal to this Court, the matter has now come down to this appeal of the administrative law judge’s award of section 57.105 attorney’s fees to Sunshine. The first and dispositive issue before this court is whether Sunshine properly complied with the mandatory notice requirements of that statute. We find it did not.
Section 57.105(4), Florida Statutes (2005), provides: “A motion by a party seeking sanctions under this section *672must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.” The statute must be strictly construed as it awards attorney’s fees in derogation of the common law. Kittel v. Kittel, 210 So.2d 1, 8 n. 7 (Fla.1968). On July 12, 2004, Sunshine’s attorney sent a detailed letter to Anchor’s attorney demanding that Anchor withdraw certain objections it had raised in Anchor’s bid protest and stated that if these objections were not withdrawn Sunshine would ñle a motion for fees under section 57.105. On November 29, 2004, the Department of Transportation entered the Final Order rejecting Anchor’s objections and awarding the contract to Sunshine. Sunshine then filed its Motion for Attorney’s Fees and Costs on December 8, 2004. After an evidentiary hearing the administrative law judge granted Sunshine’s motion for attorney’s fees finding that Sunshine’s July letter was sufficient to meet the mandatory notice requirement of section 57.105(4). 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 2005) (striking attorney’s fees under section 57.105(4) where the defendant waited until the case was over to file its fee motion). Therefore, we reverse with directions that the administrative law judge vacate the order awarding attorney’s fees to Sunshine.
Reversed and remanded with directions.
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Global Xtreme, Inc. v. Advanced Aircraft Ctr., Inc., 122 So. 3d 487 (Fla. 3d DCA 2013)…fense, contention, allegation, or denial is not withdrawn or appropriately corrected.” This Court has repeatedly stated that the statute is in derogation of common law and must be strictly construed. See Anchor Towing, Inc. v. Fla. Dep’t of Transp., 10 So. 3d 670 (Fla. 3d DCA 2009); Nathan v. Bates, 998 So. 2d 1178 (Fla. 3d DCA 2008). In order to comply with section 57.105, a party must first serve a motion seeking fees, “followed by its filing twenty-one days later.” Nathan, 998 So. 2d at 1179. This is com…
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Matte v. Caplan, 140 So. 3d 686 (Fla. 4th DCA 2014)…at this actual notice through a letter did not comport with the statutory requirement that a motion be served twenty-one days prior to it being filed with the court, reversing a section 57.105 award. See Anchor Towing, Inc. v. Fla. Dep’t of Transp., 10 So. 3d 670, 672 (Fla. 3d DCA 2009). In finding section 57.105 should be strictly construed as in derogation of the common law, Montgomery cited cases construing proposals for settlement under Florida Rule of Civil Procedure 1.442, allowing for attorney’s fees,…
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Montgomery v. Larmoyeux, 14 So. 3d 1067 (Fla. 4th DCA 2009)…442 are strictly construed because they are ‘in derogation of the common law rule that each party pay their own fees’ ” (quoting Brower-Eger v. Noon, 994 So. 2d 1239, 1241 (Fla. 4th DCA 2008))); see also Anchor Towing, Inc. v. Fla. Dep’t of Transp., 10 So. 3d 670 (Fla. 3d DCA 2009) (holding that a party failed “to meet the mandatory notice requirement of section 57.105(4)” by sending a letter instead of “the statutorily required motion” to opposing counsel, as statutes “in derogation of the common law” are “…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kittel v. Anne B. Kittel, 210 So. 2d 1 (Fla. 1967)
- Nathan v. Bates, 998 So. 2d 1178 (Fla. 3d DCA 2008)
- O'Daniel v. Bd. of Comm'rs of Monroe Cnty., 916 So. 2d 40 (Fla. 3d DCA 2005)