Third District Court of Appeal
State of Florida
Opinion filed November 30, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-1283
Lower Tribunal No. 12-9367
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Jarrette Bay Investments Corporation, et al.,
Appellants,
vs.
BankUnited, N.A. and Orlando Benitez, Jr.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Eric William
Hendon, Judge.
Julio C. Marrero & Associates, P.A., and Julio C. Marrero, for appellants.
Shutts & Bowen LLP, and Stephen T. Maher, Harold E. Patricoff, Douglas
M. Kramer and Jose A. Ceide, for appellee BankUnited, N.A.
Before ROTHENBERG, LOGUE and SCALES, JJ.
On Appellee’s Motion for Appellate Attorney’s Fees
SCALES, J.
Appellee, defendant below, BankUnited, N.A., seeks to recover appellate
attorney’s fees as a sanction against appellants, plaintiffs below, Jarrette Bay
Investments Corp. and Julio Marrero. We deny BankUnited’s motion because
neither BankUnited’s motion, nor the record, reveals compliance with the
requirements of rule 9.410(b) of the Florida Rules of Appellate Procedure.
I. Procedural History
The relevant facts and procedural history are not in dispute. After Plaintiffs
served their multi-count complaint on BankUnited, BankUnited served Plaintiffs,
pursuant to section 57.105(4) of the Florida Statutes, with a motion asserting that
Plaintiffs’ claims against BankUnited were frivolous. As required by the statute,
BankUnited’s motion was not filed, but the motion notified plaintiffs that
BankUnited would file the motion and seek attorney’s fees against Plaintiffs unless
Plaintiffs withdrew their claims within the statute’s twenty-one day “safe harbor”
period. Rather than withdrawing their claims, Plaintiffs filed an amended
complaint against BankUnited. After answering Plaintiffs’ amended complaint,
BankUnited filed a motion for judgment on the pleadings, asserting that Plaintiffs
had failed to maintain a cognizable claim against BankUnited.
Ultimately, the trial court entered a final judgment on the pleadings in favor
of BankUnited (the judgment on appeal that we have affirmed in case number
3D15-1283). BankUnited then filed its previously served 57.105 motion. During
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the pendency of Plaintiffs’ appeal, the trial court entered an order granting
BankUnited entitlement to fees pursuant to section 57.105. In that order, the trial
court determined that “Plaintiffs and their attorney knew or should have known
that their claims against BANKUNITED, at the time of filing and throughout the
proceedings in this cause, were not supported by the material facts necessary to
establish the claims and would not be supported by the application of then-existing
law [sic] those material facts.”
During the pendency of this appeal, BankUnited filed a motion with this
Court, “pursuant to Rules 9.300 and 9.400(b), Florida Rules of Appellate
Procedure” and “Sections 57.105 and 59.46, Florida Statutes.” BankUnited’s
motion seeks appellate level fees for what BankUnited characterizes as an appeal
taken from a frivolous trial court action.
II. Analysis
BankUnited argues that, because the trial court determined that BankUnited
was entitled to fees as a sanction pursuant to section 57.105, this Court must also
award BankUnited entitlement to appellate fees, pursuant to sections 57.105 and
59.46. Section 59.46 reads, in relevant part, as follows:
Attorney’s fees. – In the absence of an expressed contrary intent, any
provision of a statute . . . providing for the payment of attorney’s fees
to the prevailing party shall be construed to include the payment of
attorney’s fees to the prevailing party on appeal.
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Essentially, BankUnited suggests that section 57.105 is a prevailing party
fee statute as contemplated in section 59.46, and therefore, BankUnited is entitled
to appellate fees simply because BankUnited prevailed on the appeal. In support,
BankUnited cites two cases in which appellate courts awarded fees as a sanction
pursuant to section 57.105: Freedom Commerce Centre Venture v. Ranson, 823
So. 2d 817 (Fla. 1st DCA 2002) and Eastern Industries, Inc. v. Florida
Unemployment Appeals Commission, 960 So. 2d 900 (Fla. 1st DCA 2007).
We note, though, that both of these cases pre-date the Florida Supreme
Court’s 2010 amendment of rule 9.410, which added the rule’s subsection (b)
expressly “. . . to make rule 9.410 consistent with section 57.105, Florida Statutes
(2009).” Comm. Notes, Fla. R. App. P. 9.410. Prior to this amendment, the rule
provided a procedure for the appellate court only, on its own motion, to impose
sanctions. Fla. R. App. P. 9.410 (2009). The Court’s 2010 amendment, however,
specifically implemented section 57.105’s “safe harbor” provision, and established
the detailed procedural mechanism for parties seeking to impose sanctions against
opposing parties in appellate proceedings pursuant to section 57.105. See, e.g.,
Reznek v. Chase Home Fin., LLC, 152 So. 3d 793 (Fla. 3d DCA 2014).
BankUnited identifies section 57.105 as the exclusive, substantive basis for
entitlement to appellate fees; yet, in its motion, rather than citing to rule 9.410(b),
BankUnited cites to rule 9.300 (the general appellate rule related to motions) and
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rule 9.400(b) (the general rule regarding motions for appellate attorney’s fees) as
the procedural basis for its fee entitlement.
According to the plain language of rule 9.410(b), parties seeking appellate
fees as a sanction pursuant to section 57.105 are required to proceed pursuant to
rule 9.410(b), not rule 9.400(b). Indeed, the prefatory clause of rule 9.400(b) – the
procedural rule governing fees with a basis other than section 57.105 – expressly
makes the rule inapplicable to motions proceeding under rule 9.410(b).
Among other things, rule 9.410(b) requires that, prior to filing the motion,
an appellate movant seeking to recover fees pursuant to 57.105 must serve the
motion on the opposing party no later than “the time for serving any permitted
response to the challenged paper.” Fla. R. App. P. 9.410(b)(3). The opposing party
then has twenty-one days to withdraw or correct the challenged paper, prior to the
motion being filed. Fla. R. App. P. 9.410(b)(4).
In this case, nothing in the appellate record indicates, and BankUnited does
not allege, that BankUnited served its sanctions motion on Plaintiffs within thirty
days of the filing of the Plaintiffs’ Initial Brief, so as to give Plaintiffs an
opportunity to dismiss their appeal, as required by rule 9.410(b).1
1 Rule 9.140(b)(4) requires the moving party to execute a specific certificate of
service, confirming that the motion has been served at least twenty-one days prior
to filing the motion for attorney’s fees, in order to allow the opposing party to
withdraw the offending paper. BankUnited’s motion did not contain the required
certificate of service.
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In fact, BankUnited’s motion argues that, because the lower court found
entitlement to fees under 57.105, rule 9.410(b)’s “safe harbor” requirement is not
applicable. We disagree. Statutes providing for the recovery of attorney’s fees are
in derogation of the common law, and therefore, movants seeking recovery of fees
pursuant to such statutes, and those procedural rules implementing them, must
strictly comply with the requirements outlined therein. Reznek, 152 So. 3d at 795.
III. Conclusion
Because BankUnited seeks appellate fees as a sanction pursuant to section
57.105, yet has not complied with the requirements of rule 9.410(b), we deny
BankUnited’s motion.2
2 We express no opinion as to the merits of BankUnited’s motion.
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