CITY OF NORTH MIAMI BEACH V. BERRIO

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State: Florida

Court: Florida Third District Court

Docket No: 10-2135

Case Date: 06/01/2011

Preview:Third District Court of Appeal
State of Florida, January Term, A.D., 2011
Opinion filed June 1, 2011. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D10-2135 Lower Tribunal No. 09-28923 ________________

City of North Miami Beach,
Appellant, vs.

Juan D. Berrio,
Appellee.

An appeal from the Circuit Court for Miami-Dade County, Lester Langer, Judge. Darcee S. Siegel, City Attorney, and Maria J. Santovenia, Assistant City Attorney, for appellant. Berrio & Berrio and Juan D. Berrio, for appellee.

Before SUAREZ, LAGOA, and EMAS, JJ. LAGOA, J. The City of North Miami Beach (the "City") appeals from a final order awarding Juan D. Berrio his attorney's fees pursuant to section 57.105, Florida

Statutes (2009). Because the motion for attorney's fees should have been denied for noncompliance with the twenty-one day "safe harbor" provision of subsection 57.105(4), Florida Statutes, we reverse. On March 25, 2009, Officer Hernandez of the City of North Miami Beach conducted a traffic stop of Michael Hurtado ("claimant") for dark window tints. Hernandez searched the vehicle, a 2005 Infiniti Q 56 SUV, and discovered marijuana within a closed zip-lock bag inside a plastic grocery bag. Hernandez arrested the claimant and charged him with possessing a third degree felony amount of marijuana pursuant to section 893.13, Florida Statutes. The vehicle was impounded. After receiving a notice of seizure of personal property, the claimant retained attorney Berrio. On April 9, 2009, the City filed a verified complaint for final order of forfeiture pursuant to sections 932.701 and 932.704, Florida Statutes (2007). Subsequently, on August 11, 2009, the trial court entered an order

granting the claimant's motion for summary judgment and ordered the immediate return of the vehicle to the claimant. The City did not return the vehicle, and on September 11, 2009, the claimant filed a motion for damages, attorney's fees, and costs pursuant to subsection 932.704(10) and section 57.105. Approximately one week after receiving the motion, the City returned the vehicle.

2

After a hearing, the trial court concluded that fees under section 57.105 were appropriate, and subsequently entered an order awarding fees to Berrio in the amount of $13,500, and to an expert witness in the amount of $1,215.1 The City appeals. Section 57.105 provides, in relevant part: (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. .... (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.

The trial court denied the motion for fees under section 932.704, and Berrio did not appeal that denial. 3

1

On appeal, the City argues that the trial court erred in granting the motion for attorney's fees and costs because the claimant failed to follow the twenty-one day "safe harbor" provision of subsection 57.105(4). See generally Nathan v. Bates, 998 So. 2d 1178 (Fla. 3d DCA 2008); Burgos v. Burgos, 948 So. 2d 918 (Fla. 4th DCA 2007); O'Daniel v. Bd. of Comm'rs, 916 So. 2d 40 (Fla. 3d DCA 2005). The City points to the undisputed fact that the claimant failed to serve his motion for fees on the City twenty-one days prior to filing the motion with the clerk and presenting it to the trial court. The City also argues that the claimant failed to adhere to the requirements of subsection 57.105(4) by filing its motion on September 11, 2009, one month after the trial court entered the order granting the claimant's motion for summary judgment. See O'Daniel, 916 So. 2d at 41

(holding that motion for attorney's fees was untimely under subsection 57.105(4) where motion was served and filed following the conclusion of the trial). Based on the authority of Davidson v. Ramirez, 970 So. 2d 855 (Fla. 3d DCA 2007), we agree with the City that the trial court erred in granting the claimant's motion for attorney's fees and costs. In that case, this Court reversed an award of attorney's fees where the party filing the motion for fees failed to comply with the notice provision set forth in subsection 57.105(4), but the trial court awarded fees on its own initiative under subsection 57.105(1). This Court found that "[i]n essence the court adopted the defendant's motion as the court's own motion and awarded attorney's fees" and reversed, concluding that: 4

[T]his procedure is contrary to the intent of the statute. The legislative intent is to require the twenty-one-day notice whenever a subsection 57.105(5)2 motion is filed by a party. It would frustrate the legislative intent to avoid the twenty-one-day notice by allowing the court to adopt the party-filed motion as the court's own. Since this was a party-filed motion, the subsection 57.105(4) notice period had to be observed. 970 So. 2d at 856. Berrio argues that this case can be distinguished from Davidson because the trial court did not merely adopt the motion for fees, but rather, awarded fees pursuant to its own initiative as provided in subsection 57.105(1). See

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