CASE LAW AND STATUTORY UPDATE:
RECENT CASES AND SECTION 57.105
Prepared and Presented By:
Joseph A. Corsmeier, Esquire
Joseph A. Corsmeier, P.A.
2454 McMullen Booth Rd, Ste. 431
Clearwater, Florida 33759
Fax: (727) 799-1670
Joseph A. Corsmeier practices in Clearwater with the Law Office of Joseph A.
Corsmeier, P.A. He previously was a partner in the law firm of Tew, Barnes & Atkinson and
served as Staff Counsel for the Tampa office of The Florida Bar from 1990 to 1998 and as an
Assistant State Attorney for the Sixth Judicial Circuit from 1986 to 1990. Mr. Corsmeier’s
practice currently consists of Bar and Professional admission and disciplinary defense, expert
opinion and testimony on ethics and professionalism issues workers’ compensation and labor
CASE LAW AND STATUTORY UPDATE:
RECENT CASES AND SECTION 57.105 ATTORNEY’S FEES
I. Inherent Authority of Court to Sanction Offending Attorneys.
A. Moakley and Diaz and Recent Cases.
1. Moakley v. Smallwood, 826 So.2d 221 (Fla. 2002).
Florida Supreme Court opinion held that courts have inherent
authority to sanction bad faith conduct of attorney pursuant to
the inequitable conduct doctrine by requiring the attorney to
personally pay fees of opposing party, however, the court
must first comply with due process requirements outlined in
the opinion.1 Opinion quashed the trial order imposing
sanctions on the attorney personally.
2. Diaz v. Diaz, 826 So.2d 229 (Fla. 2002).
Florida Supreme Court opinion held that court has inherent
authority to impose sanctions personally upon an attorney for
bad faith conduct under limited circumstances, however, the
court did not make specific factual findings of bad faith
conduct by the attorney and the record did not support such a
finding. Opinion quashed the order imposing sanctions on
the attorney and remanded on other grounds.
3. T/F Systems, Inc. v. Malt, 814 So.2d 511 (Fla. 5th DCA
Opinion reversed a trial court order awarding attorney’s fees
pursuant to the court’s inherent authority and remanded for
evidentiary proceedings consistent with the Moakley
decision. In a footnote, the opinion noted that neither party
raised the applicability of Section 57.105, however, the court
observed that the “inequitable conduct doctrine” used in
analyzing the basis of the inherent authority to impose
Sanctions must be supported by detailed, highly specific factual findings, the attorney’s fees
must be directly related to the fees and costs incurred by the opposing party, and there must be
notice and an opportunity to present witnesses and other evidence.
sanctions may have been rendered obsolete by the 1999
amendment to Section 57.105 which broadened the
application of the statute.
4. North County Company v. Bologna, 816 So.2d 842 (Fla. 4th
Opinion vacated portion of trial court order awarding
attorney’s fees under court’s inherent authority and remanded
for evidentiary hearing in compliance with Moakley.
5. Sumlar v. Sumlar, 827 So.2d 1079 (Fla. 1st DCA 2002).
Opinion reversed award of attorney’s fees in dissolution
matter for evidentiary hearing in compliance with Moakley
and Diaz, as well as a determination of the parties’ needs and
ability to pay if the award is imposed against a party.
6. Department of Revenue v. Barry S. Franklin & Associates,
P.A., (2003 WL 1720100 (Fla. 3d DCA April 2, 2003)).
Opinion reversed award of attorney’s fees under the inherent
authority of the court because the findings of fact in the trial
court’s order did not comply with the requirements of Diaz
II. Attorney’s Fees under Section 57.105 Florida Statutes.
A. 1999 Amendment to Section 57.105.
1. Sanctions, including attorney’s fees, may be imposed in equal
amounts against an attorney and the party for raising
unsupported claims and defenses.
a. the claim may be initiated by the court or raised by
motion of any party;
b. sanctions may be imposed if the court finds that the
losing party or the losing party’s attorney knew or
should have known that the claim or defense was not
supported by the material facts necessary to establish
the claim or defense or would not be supported by the
application of then-existing law and the material facts;
c. the losing party’s attorney is not personally responsible
if he or she has acted in good faith, based on the
representations of the client as to the existence of
d. sanctions do not apply if the attorney initially
presented a claim or defense as a good faith argument
for extension, modification, or reversal of existing law
or establishment of new law with a reasonable
expectation of success;
e. party moving for sanctions must serve the motion 21
days prior to filing and allow opposing party an
opportunity to withdraw or correct the claim or
f. sanctions are supplemental to any other remedies or
sanctions available by law or court rules;
g. court can award attorney’s fees to whichever party
prevails in contract action.
B. Recent cases addressing Section 57.105, as amended (1999).
1. O’Grady v. Potash, 824 So.2d 904 (Fla. 3d DCA 2002).
Indemnification of fees by thirty-party defendant does not
affect entitlement to attorney fees under Section 57.105, as
2. Gahn v. Holiday Property Bond, Ltd. and HPB, 826 So.2d
423 (Fla. 2d DCA 2002).
Trial court order denying motion for attorney fees reversed
and remanded with instructions to trial court to hold
evidentiary hearing to determine when defense counsel knew
about defendant’s business activities and business
relationships in Florida when he filed the motion to dismiss
complaint and quash service of process due to lack of
personal jurisdiction as well as the appropriate amount of fees
incurred by the plaintiff in defending the complaint against
the motion to dismiss and quash service. No discussion of
attorney/client confidentiality issues with regard to
determining what defense counsel knew or learned about
defendant’s business activities and business relationships.
The standard for appellate review of a trial court order
denying motion for attorney fees under Section 57.105, as
amended, is abuse of discretion.
3. Bridgestone/Firestone, Inc. v. Herron, 828 So.2d 414 (Fla. 1st
Trial court order denying motion to dismiss for lack of
personal jurisdiction and awarding attorney’s fees under
Section 57.105 affirmed and motion for appellate attorney’s
fees granted. Evidence sufficient to show that motion to
dismiss was plainly without merit and could not be sustained
under any interpretation of the law. Section 57.105, as
amended, authorizes an award of attorney’s fees “at any time”
during a civil proceeding or action, therefore, in interlocutory
appeal, appellate fees may be assessed. (See at id: Forum v.
Boca Burger, Inc., 788 So.2d 1055 (Fla. 4th DCA 2001),
review granted, 817 So.2d 844 (Fla. 2002.
4. Goldfisher v. Ivax Corporation, 827 So.2d 1110 (Fla. 3d DCA
Stockholder brought suit against corporation which resulted
in the removal of a “poison pill” clause from corporation’s
stockholder documents and appealed trial court’s denial of
fees because request for fees had not been pled in complaint.
Appellate opinion affirmed trial court order denying fees and
also denied corporation’s request for appellate fees under
Section 57.105 because neither the lawsuit nor the appeal
were “totally without merit.”
5. Andzulis v. Montgomery Road Acquisitions, Inc., 831 So.2d
237 (Fla 5th DCA 2002).
Trial court ordered attorney’s fees to be paid by the plaintiffs
under Section 57.105. The order did not require one-half of
the fees to be paid by plaintiff’s counsel even though the
order found “a complete absence of a justiciable issue of
either law or fact raised (in) the complaint” and the complaint
was “devoid of merit.” Appellate opinion reversed the order
and held that the trial court was required to assess one-half of
the fee award against the attorney for lack of a justiciable
issue. Opinion further held that burden is on attorney who
made the claim or defense to show good faith and not on the
moving party to show bad faith or absence of good faith in
order to avoid breaching “the rather impermeable wall of
6. Cowgill v. Bank of America, 831 So.2d 241 (Fla. 2d DCA
Trial court entered summary judgment against the plaintiffs
on the ground that the claim was barred by the statute of
limitations and awarded fees to defendants under Section
57.105. Plaintiffs appealed and appellate opinion affirmed
summary judgment and reversed the award of attorney’s fees
because the claim was arguably supported by material facts
and then-existing law.
7. Read v. Taylor, 832 So.2d 219 (Fla. 4th DCA 2002).
Trial court awarded attorney’s fees under Section 57.105, as
amended. Appellate opinion reversed the order of the trial
court stating that the statute still is intended to address the
issue of frivolous pleadings and that “it appears from the
record...that these claims were not so completely lacking in
merit as to warrant an award of fees under Section 57.105.”
8. Mullins v. Kennelly, 2003 WL 21471719 (5th DCA
June 27, 2003).
Trial court assessed attorney’s fees sanctions ½ against
plaintiff and ½ against plaintiff’s attorney after
personal injury suit was dismissed for lack of
prosecution. Plaintiff’s attorney appealed and argued,
inter alia, that if attorney’s fees were to be assessed,
the sanction should be solely against the plaintiff, his
client. The 5th DCA reversed the award of fees, stating
that Section 57.105 cannot be applied to conduct prior
to the effective date of the statute and that a dismissal
for lack of prosecution is not an adjudication on the
merits, therefore, 57.105 sanctions cannot be imposed.
In dicta, the opinion expressed concern that the
attorney may have had a conflict of interest under Bar
Rule 4-1.7 in arguing that, if fees were assessed, the
sanction should be imposed solely against his client.
9. Inquiry Concerning a Judge re: Charles W. Cope (Fla.
May 29, 2003).
The Supreme Court of Florida approved a public
reprimand for the Circuit Judge but denied the judge’s
request for attorney’s fees to be imposed as a sanction
against the Judicial Qualifications Commission (JQC)
under Section 57.105. The judge argued that the
sanctions should be imposed because certain charges
were unfounded. The opinion noted that Section
57.105 applies only to civil proceedings and it had
never applied 57.105 to JQC proceedings or any other
administrative proceedings. Further, even if the statute
applied, the judge would not be entitled to fees
because, although the JQC did not prevail on some of
the claims under the heightened clear and convincing
standard, the charges were not such that the JQC
prosecutor knew or should have known lacked merit.
10. Barna v. Barna, 2003 WL 21537438
(Fla. 4th DCA July 9, 2003).
Attorney represented husband in dissolution matter.
After dissolution was granted, the attorney filed
“Motion For a Declaratory Judgment, Temporary
Injunctive Relief, Permanent Injunctive Relief,
Recusal and Certiorari Because the Post dissolution
Permanent Spousal Support Provisions of Florida
Statutes Chapter 61 Violate the Florida Constitution.”
The trial court denied the motion and later granted the
former wife’s motion for fees under Section 57.105.
In awarding fees, the trial court rejected the attorney’s
argument that his actions did not require the former
wife’s participation and found that the motion was
irrelevant, frivolous, and brought only to advance the
cause of an unrelated client, the Alliance For Freedom
From Alimony, Inc. The trial court further made the
award without regard to the cost burden to the former
wife. The 4th DCA upheld the award of fees under
11. Kerzner v. Lerman, 2003 WL 21697432 (Fla. 4th DCA
July 23, 2003).
Complaint was stricken as a sham pleading and
moved for attorney’s fees as sanction under Section
The motion sought attorney’s fees from the plaintiff
but did not mention or seek fees from plaintiff’s
attorney. The plaintiff appealed, claiming, in part, that
the trial court erred in not assessing ½ of fees against
his lawyer. The 4th DCA affirmed the award, stating
that the statute allows the party to seek fees only
against the other party and that the defendant waived
her ability to seek a joint fee award against plaintiff
The opinion also observed that there is an ethical
concern and that the statute “appears to set up and
conflict” between the attorney and client when fees
sought. The client may be unaware that the statute
allows the court to require that ½ of the fee award be
assessed against the attorney
and there is certainly no incentive for the
attorney to advise the client if the opposing party did
not request that fees to be assessed against both in the