Attorney Fees in Protective Order Hearings
Under 2019 CS/HB 7125, which takes effect on October 1, 2019, the Court is not permitted to award attorney fees under Section 57.105, F.S., in injunction proceedings for domestic violence, repeat violence, dating violence, sexual violence, and stalking, unless the court finds by clear and convincing evidence that, with regard to a material matter, that either the:
- Petitioner knowingly made a false statement or allegation in the petition; or
- Petitioner knowingly made a false statement or allegation in an asserted defense.
To prevail on this claim, it must also be shown that:
- the petition was not supported by the material facts necessary to establish the claim or defense; or
- the petition was not supported by the application of then-existing law to those material facts.
Furthermore, the party seeking attorney fees under s. 57.105, F.S. must first serve its motion on the party that it believes has made an unsupported claim as required by Section 57.105(4), F.S.
Then the party seeking attorney fees must wait 21 days before filing the motion for sanctions with the court, during which time the other party may withdraw the allegedly unsupported claim, thus avoiding a possible sanction.
Attorneys for Protective Order Hearings in Florida
The attorneys at Sammis Law Firm represent Respondents in Protective Order Hearings when the Petitioner makes false or exaggerated claims.
We represent clients in these types of hearings throughout Hillsborough County, FL, and the surrounding counties including Hernando County, Pasco County, Pinellas County, Manatee County, and Polk County, FL.
We represent Respondents in all kinds of injunction proceedings including:
- domestic violence hearings for protection;
- repeat violence hearings for protection;
- dating violence hearings for protection;
- sexual violence hearings for protection; and
- stalking violence hearings for protection.
If you need an attorney for a protective order hearing in Tampa, FL, then contact us to discuss the case.
Call 813-250-0500.
When are Attorney Fees Awarded under Section 57.105?
The Motion for Attorney Fees in a Civil Action under Section 57.105, Florida Statutes, allows for an award of attorney fees to the prevailing party in a civil action or proceeding if another party makes a claim or defense that is unsupported by the facts or the law:
- Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, 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:
- 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 to those material facts.
- A person seeking attorney fees under s. 57.105, F.S. must first serve its motion on the party that it believes has made an unsupported claim as required by Section 57.105(4), F.S.
- The person must then wait 21 days before filing the motion for sanctions with the court, during which time the other party may withdraw the allegedly unsupported claim, thus avoiding a possible sanction.
Prior to this legislative change in 2019 CS/HB 7125, Florida law prohibited attorney fee awards stemming from domestic violence injunction proceedings; however, there is was no such explicit prohibition for repeat violence, sexual violence, dating violence, or stalking injunction proceedings.
The Florida Supreme Court in Lopez v. Hall, 233 So. 3d 451, 453–54 (Fla. 2018), recently held that the trial court can award attorney fees to the respondent in protective order cases under Section 57.105 for dating, repeat, and sexual violence injunction proceedings, because awarding attorney fees in those cases were not explicitly prohibited by statute.
Section 57.105(4) provides:
“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 statutory language unambiguously states that it applies to “any claim or defense at any time” during any “civil proceeding or action” where a party or its attorney “knew or should have known” that they pursued baseless claims or defenses.
The statute’s plain language makes clear that it supplies a way to sanction a party and its attorney in civil actions for baseless claims or defenses and that it applies to civil proceedings or actions, without exception.
Although the Florida Supreme Court in Lopez v. Hall noted that section 784.046 included no mention of attorney’s fees and costs, the court also noted that it did not purport to prohibit an award pursuant to section 57.105.
For this reason, the court concluded that because section 57.105’s language plainly states that its provisions apply to civil proceedings or actions, and a proceeding under section 784.046 is a civil proceeding, section 57.105 may be applied to section 784.046 actions where all other requirements of section 57.105 are met.
In many of these cases, practical problems may occur in certain circumstances when parties attempt to apply section 57.105 to actions under section 784.046.
For example, Section 57.105 provides a notice requirement, which gives parties and their attorneys a 21–day time period after receipt of service of a section 57.105 motion to withdraw or correct a baseless claim or defense before the motion can be filed with the court. Additionally, the court can raise the issue on its own motion.
If you are the respondent, and false allegations are made against you, then you should consider whether you are entitled to attorney fees when you prevail on the merits of the case.
A claim for fees under §57.105(1) must be brought in the original action. It cannot be brought in an independent claim. You must show that you complied with the statutory prerequisites such that the claim could be considered by the court. See §57.105(4), Fla. Stat.
Under §57.105(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.
Sample Motion for Attorney Fees in Injunction for Protection Cases
Motion for Attorney Fees under Section 57.105, Florida Statutes
This motion provides notice to the Petitioner, _______, that the Respondent, _________, through counsel, intends to seek reasonable attorney’s fee and costs incurred to defend this action because the petitioner and its attorney knew or should have known that a claim or defense when initially presented to the court or at any time before hearing:
- 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 to those material facts.
Respondent also shows that:
- Petitioner knowingly made a false statement or allegation in the petition; or
- Petitioner knowingly made a false statement or allegation in an asserted defense.
Therefore, the Petitioner is hereby put on notice that Respondent intends to seek attorney fees and costs for its efforts in defending this action unless within 21 days of service of this motion, Petitioner withdraws or voluntarily dismisses the action filed on ______.
Pursuant to Florida Statute Section 57.105(4) this motion is being filed by the party seeking sanctions under this section. This motion is served but not filed 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.
Be advised that this notice is supplemental to other sanctions or remedies available under law or under court rules.
Furthermore, pursuant to F.S. 57.105(4), the respondent intends to show that the action taken by _________, including the filing of the _________, was taken primarily for the purpose of unreasonable delay.
As such, the respondent will request the court to shall award damages for its reasonable expenses incurred, which may include attorney’s fees, and other loss resulting from the improper delay.
In support of this motion, Respondent shows the following:
- Petitioner knowingly made a false statement or allegation in the petition [or an asserted defense].
- Petitioner alleged the following statement or allegation: ____________.
- Petitioner knew the statement or allegation was false because ___________.
- Furthermore, petitioner either knew or should have known that the statement or allegation 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 to those material facts.
This article was last updated on Friday, February 12, 2021.
