by Woody Robert Clermont
You are defending a client who is being sued for specific performance of a real estate sales contract gone wrong. The plaintiff alleges that your client agreed to sell real property on terms to which your client never agreed. He is seeking a conveyance of the property, and he has filed a notice of lis pendens in order to cloud the title. The lis pendens has chased away other potential buyers, caused any would-be lenders to refuse to approve any loans for the property’s purchase, and dissuaded potential title insurers from insuring the title. The Case-Shiller Home Price Index has just reported its largest drop in U.S. history due to the housing bubble. Your client is nervous because the property’s value is decreasing daily.
The case goes to trial, and the court finds in your client’s favor, entering final judgment on her behalf. The court awards attorneys’ fees, costs, and additional equitable compensatory relief as part of the judgment, but the plaintiff immediately files an appeal. The appeal appears to be groundless and is merely a stall tactic to prolong the lis pendens, which has not been discharged. After granting numerous extensions of time to file the initial brief, the appellate court finally dismisses the appeal. Even though the reason for the dismissal was merely a technical one (failure to file the initial brief), is there a recourse?
The Prohibition Against Frivolous Actions and Appeals
Florida lawyers have both ethical and statutory duties not to file actions — including appeals — that are not supported by the application of the governing law.1 The ethical duty prohibiting “frivolous” proceedings is imposed by Rule 4-3.1 of the Rules Regulating The Florida Bar.2 Florida Rule of Appellate Procedure 9.410 likewise provides:
After 10 days’ notice, on its own motion, the court may impose sanctions for any violation of these rules, or for the filing of any proceeding, motion, brief, or other paper that is frivolous or in bad faith. Such sanctions may include reprimand, contempt, striking of briefs or pleadings, dismissal of proceedings, costs, attorneys’ fees, or other sanctions.
In Basan v. State, 560 So. 2d 391 (Fla. 1st DCA 1990), the First District imposed sanctions against an attorney who failed to file a record on appeal or an initial brief, and failed to respond to an order to show cause why sanctions should not be imposed against him. However, the district court’s sanctions were limited to a restriction of counsel’s ability to practice before the First District, a reprimand of counsel and referral of the matter to The Florida Bar grievance committee, and dismissal of the appeal.3
The appellant in Basan was a criminal defendant.4 In civil actions, by contrast, the focus shifts from the balance between the rights of criminally accused defendants to access to courts and effective representation, to the effect frivolous litigation has on ultimately prevailing parties by draining their resources. In this context, both defendants who must defend against frivolous actions and plaintiffs who must contend with frivolous defenses have equal access to the remedy of F.S. §57.105 (2009).5
Appellate Attorneys’ Fees Under §57.105(1)
Attorneys’ fees are awarded under §57.105(1) when there is a total or absolute lack of justiciable issues of either law or fact, which is tantamount to a finding that the action (even in part) or defense is virtually frivolous or completely untenable.6 Although a claim may not have been frivolous when initially filed, amendments made to §57.105 in 1999 make clear that failing to discharge a party when it becomes evident that there no longer is a justiciable claim or defense may also subject a litigant to the penalties of §57.105.7 The 1999 amendments also removed the requirement that the party moving for fees must prevail in the entire litigation.8 The effects of this amendment have been regarded as a change that should strike fear into the heart of even the seasoned veteran practitioner.9 Because the statute can now be applied to a discrete part of a civil case before it has been concluded, litigators must “think twice” about strategies and courses of action they choose to pursue on behalf of their clients.10
Due process requires that an opposing party and their counsel be given notice of a party’s desire to seek sanctions under §57.105(1).11 The statute specifically requires that a motion seeking sanctions be served 21 days before it is filed in order to give a pleader a last clear chance to reconsider a claim, defense, or tactic that was asserted without merit or taken primarily for the purpose of unreasonable delay.12 By contrast, there is no requirement that a court conduct an evidentiary hearing to determine if a matter is frivolous; the trial court may determine a matter is frivolous on the record alone.13
Returning to the hypothetical posed at the beginning of this article, §57.105 sanctions would seem appropriate at first glance. The First District addressed a factually similar case in its decision in de Vaux v. Westwood Baptist Church, 953 So. 2d 677 (Fla. 1st DCA 2007), in which it held that an attorney violated Rule 4-3.1 of the Rules Regulating The Florida Bar and was subject to sanctions under §57.105 because the attorney appealed the dismissal of an action for specific performance on a real estate sales contract. The sales contract was clearly unenforceable because it failed to include essential terms for the purchase of real property.14
In de Vaux, the appellate court awarded the sanctions in an opinion disposing of the merits of the case after briefing.15 But in the hypothetical posed above, the appellant only filed a notice of appeal, leaving the appellate court without any information about what legal error occurred in the trial court. Given that a party’s entitlement to appellate attorneys’ fees must be determined by the appellate court in the first instance,16 how would the appellate court be able to assess a record it has never been provided and legal arguments that have never been made?
Under the law, dismissals have not served as an absolute barrier to seeking an award of attorneys’ fees under §57.105.17 The inquiry turns not on the mere entry of a dismissal, but whether an existing claim or defense was unsupportable under the law.18 As such, it may be possible to file a motion for attorneys’ fees with the appellate court under Fla. R. App. P. 9.400(b). The preparations for such a motion would need to be made quickly given the 21-day notice requirement of §57.105(4) and the need to file the motion before the appellate court actually dismissed the case.
As for presenting the merits of such a motion, the party seeking fees may have two options. First, the party could attach to the motion an appendix of trial court documents that demonstrate the case’s lack of merit.19 Another option may be to request the appellate court simply authorize an award of attorneys’ fees under §57.105(1), but remand to the trial court the determination of entitlement as well as the amount.20
At least one district court of appeal has awarded §57.105 fees against an appellant when the appeal was dismissed. In Maradriaga v. 7-Eleven, 35 So. 3d 109 (Fla. 1st DCA 2010), the First District imposed §57.105 fees after issuing an order to show cause on the matter. It appears, however, that the First District took this action of its own accord and without a motion by the opposing party.21 Moreover, in another case, the First District has warned that the application of §57.105(1) to the dismissal of an appeal must meet a high standard. “If an order dismissing a claim or striking a defense routinely leads to a motion for attorney’s fees,” the court cautioned in Bridgestone/Firestone, Inc. v. Herron, 828 So. 2d 414, 419 (Fla. 1st DCA 2002), “the point of the statute would be subverted and, in the end, it might even have the reverse effect of making civil litigation more expensive.” For this reason, the court stated, §57.105 must be employed carefully to ensure that it serves the purpose for which it was intended.22
Other Damages Under §57.105(3)
There is one provision of §57.105 that is yet unmined but that could be of particular interest in the hypothetical presented. Section 57.105(3) provides that a court “shall award damages” to a party who proves that the other side filed a pleading or asserted a claim “primarily for the purpose of reasonable delay,” and states that the damages “may include attorney’s fees, and other loss resulting from the improper delay.” Although courts have previously considered the resource-draining effects of seemingly unending stall-tactic litigation,23 to date, no court has specifically addressed this provision in the context provided by the hypothetical — that is, a delay which causes economic damages in addition to the fees and costs of the litigation. Yet this provision is apparently the client’s only hope of regaining the losses she incurred while the plaintiff’s frivolous appeal prevented her from selling her property in a declining real estate market.
Convincing an appellate court to consider this claim may be difficult. Not only is there no current authority on this subject, it may be impossible for an appellate court not normally tasked with fact-finding to assess 1) whether the appeal was filed “primarily for the purpose of unreasonable delay”24 or 2) the amount of damages actually caused by the frivolous appeal. As discussed above, the motion for appellate attorneys’ fees would either need to provide proof supporting these matters or ask the appellate court to remand these specific issues to the trial court. Even then, the standard for such an award would presumably be quite high.
Section 57.105 may be of great value to attorneys who find themselves faced with a frivolous appeal intended only to delay the inevitable while causing additional damage to their client. The statute, and particularly its provisions permitting a party to recover damages for an unreasonable delay, gives courts the power to adequately punish a litigant who abuses the system to the continued detriment of the other side.25 The power that comes with the use of that authority, however, poses a concern to bench and bar and must be used with restraint by the courts to avoid a harmful effect.
“Appellate courts, too, must manage heavy caseloads.”26 Even though district courts of appeal should exercise great restraint in imposing appellate sanctions, appellate counsel should be well aware of their obligation to avoid the waste of judicial resources in their pursuit of baseless advocacy for the client.27 There is no doubt that practitioners face daily challenges in zealously representing their clients and knowing “when to say when.” Practitioners (and their clients) should not be punished for advocacy that is zealous, but legitimate — only for advocacy that lacks any merit.
1 See R. Regulating Fla. Bar 4-3.1; Restatement (Third) of Law Governing Lawyers §110 (2000).
2 Specifically the rule provides: “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.”
3 Basan, 560 So. 2d at 391.
5 “The purpose of [§57.105] is to discourage baseless claims, stonewall defenses, and sham appeals in civil litigation by placing a price tag through attorneys’ fees awards on losing parties who engage in such activities.” United Cos. Fin. Corp. v. Hughes, 460 So. 2d 585, 587 (Fla. 2d D.C.A. 1984).
6 Muckenfuss v. Deltona Corp., 508 So. 2d 340, 341 (Fla. 1987).
7 See Weatherby Assocs. v. Ballack, 783 So. 2d 1138, 1142 (Fla. 4th D.C.A. 2001). In fact, the 1999 change applies to any single defense or claim rather than the entirety of an action, and, thus, does not require that the entire action be frivolous. See Ch. 99-225, §4, Laws of Fla.
8 See Ch. 99-225, §4, Laws of Fla.
9 John P. Fenner, New §57.105 Lawyer Sanctions, Our Ethics, and the Florida Constitution, 77 Fla. B.J. 26, 28 (May 2003) (“In almost all cases, a prudent fear of sanctions will improve the practice of law, by making us more careful.”).
10 Allison S. Miller-Bernstein, A Survey of Section 57.105, Florida Statutes: Effective Use of This Powerful Statute and How to Avoid Its Consequences, 25 No. 3 Trial Advoc. Q. 10, 12 (Fla. Defense Lawyers Ass’n, Summer 2006).
11 Alvarez, Armas & Borron, P.A. v. Heitman, 770 So. 2d 208, 210 (Fla. 3d D.C.A. 2000).
12 See Fla. Stat. §57.105(4); see also Walker v. Cash Register Auto Ins. of Leon County, Inc., 946 So. 2d 66, 70 (Fla. 1st D.C.A. 2006).
13 See O’Brien v. Brickell Townhouse, Inc., 457 So. 2d 1123, 1123-24 (Fla. 3d D.C.A. 1984) (affirming trial court’s award of attorneys’ fees for frivolous appeal of summary judgment where matter had been previously unsuccessfully litigated in federal court); Strothman v. Henderson Mental Health Ctr., Inc., 425 So. 2d 1185, 1185-86 (Fla. 4th D.C.A. 1983) (reversing award of attorneys’ fees based solely on failure to state cause of action in complaint or amended complaint; court must have substantial competent evidence from a hearing or in the record that the losing party’s position was virtually frivolous).
14 de Vaux, 953 So. 2d at 682-85.
16 See Bird Lakes Dev. Corp. v. Meruelo, 626 So. 2d 239 (Fla. 3d D.C.A. 1993).
17 See Hustad v. Architectural Studio, Inc., 958 So. 2d 569, 571 (Fla. 4th D.C.A. 2007).
19 See Fla. R. App. P. 9.400(a).
20 See, e.g., Bogos v. Bogos, 952 So. 2d 528, 528 (Fla. 2d D.C.A. 2006) (discussing appellate court’s prior decision to remand the issues of both entitlement and amount of appellate attorneys’ fees to the trial court for determination).
21 Maradriaga, 35 So. 3d 109, 110.
22 Bridgestone/Firestone, 828 So. 2d at 419.
23 See, e.g., Visoly v. Sec. Pac. Credit Corp., 768 So. 2d 482, 485-92 (Fla. 3d D.C.A. 2000) (affirming trial court’s award of attorneys’ fees and imposing appellate attorneys’ fees as sanctions under §57.105 after nine years of litigation, three motions to recuse in the trial court, two petitions for writ of prohibition filed in the district court, and six appeals, all of which the district court characterized as “blatant delay tactics” and a barrage of attempts to “delay foreclosure” of a mortgage).
24 See Cheetham v. Brickman, 861 So. 2d 82, 83 (Fla. 3d D.C.A. 2003) (finding under §57.105(3) that defendant’s mere failure “to turn over the sale proceeds” after litigation commenced did not constitute proof by a preponderance of the evidence that he took any action for the primary purpose of unreasonable delay); cf. Rosenberg v. Gaballa, 1 So. 3d 1149, 1150 (Fla. 4th D.C.A. 2009) (affirming trial court’s award of attorneys’ fees under the inequitable conduct doctrine, but discussing in passing that defense counsel’s “inaction may have resulted in unreasonable delay” within the meaning of §57.103(3)).
25 See Comment to R. Regulating Fla. Bar 4-3.2, which states: “Dilatory practices bring the administration of justice into disrepute.” The remainder of the comment makes clear that delay should not be indulged merely for the convenience of the advocates or for the purpose of frustrating an opposing party’s attempt to obtain “rightful redress or repose.” Id.
26 Boca Burger, Inc. v. Forum, 912 So. 2d 561, 571 (Fla. 2005).
27 “Too many members of the Bar practice with complete ignorance of or disdain for the basic principle that a lawyer’s duty to his calling and to the administration of justice far outweighs — and must outweigh — even his obligation to his client, and, surely what we suspect really motivates many such inappropriate actions, his interest in his personal aggrandizement.” Rapid Credit Corp. v. Sunset Park Centre, Ltd., 566 So. 2d 810, 812 n.1 (Fla. 3d D.C.A. 1990) (Schwartz, C.J., specially concurring).
Woody Robert Clermont is an assistant general counsel in the Appellate Division of the Office of the General Counsel for the 11th Judicial Circuit of Florida. Mr. Clermont is a 2002 graduate of the University of Miami School of Law, who prior to working in the Florida state court system, served for five years working with the Office of the State Attorney for the 11th Judicial Circuit as an assistant state attorney, prosecuting narcotics trafficking, sexual battery, and robbery cases, as well as homicides. He spent his first year as an attorney litigating personal injury and workers’ compensation cases with the Law Offices of William F. Souza.
This column is submitted on behalf of the Appellate Practice Section, Raoul G. Cantero III, chair, and Tracy R. Gunn, Heather M. Lammers, and Kristin A. Norse, editors.