05-0583 O

State: Florida

Court: Florida Third District Court

Docket No: 05-0583 O

Case Date: 12/07/2005

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2005

JOHN M. O'DANIEL and THERESA HILLS, Appellants,

** ** ** CASE NO. 3D05-583

vs. ** BOARD OF COMMISSIONERS OF MONROE COUNTY, ** Appellee. **

LOWER TRIBUNAL NO. CA-P-02-141

Opinion filed December 7, 2005. An Appeal from the Circuit Court for Monroe County, Luis M. Garcia, Judge. James S. Mattson, for appellants. Morgan & Hendrick and Derek V. Howard, for appellee.

Before GERSTEN and GREEN, JJ., and SCHWARTZ, Senior Judge. PER CURIAM. This is an appeal from an order denying the appellant's motion for attorney's fees pursuant to section 57.105, Florida Statutes (2003). We affirm.

Appellants

brought

an

action

against

Monroe

County

to

establish their rights to a 1983 building permit, and to require the County to allow the appellants to complete the construction of a structure. was Following in a trial on the merits, final

judgment

entered

appellants'

favor.

Thereafter,

appellants moved for attorney's fees pursuant to section 57.105. Monroe County moved to strike the motion for fees on procedural grounds. The trial court granted the County's motion to strike

and this appeal followed. Section 57.105 provides, in pertinent part, that: (1) Upon the court's initiative or motion of any party, the court shall award a reasonable attorney's fee to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) Was not supported by the material facts necessary to establish the claim or defense; or (b) Would not be supported by the application of thenexisting law to those material facts. However, the losing party's attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts. If the court awards attorney's fees to a claimant pursuant to this subsection, the court shall also award prejudgment interest. * * *

2

(4) 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.

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