# Third District Court of Appeal

State of Florida

Opinion filed August 8, 2018.

Not final until disposition of timely filed motion for rehearing.

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No. 3D17-0961

Lower Tribunal No. 14-1031

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### MC Liberty Express, Inc., and P.S. Trucking, Inc.,

Appellants,

vs.



### All Points Services, Inc., Julio Martinez, and Maria Isabel Martinez,

Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Monica Gordo,

Judge.

Garcia-Menocal Irias & Pastori LLP, and Jorge Garcia-Menocal

, for

appellants.

O'Brien & Solomon, LLP, and Alice E. Solomon (Fort Lauderdale), for

appellees.

Before ROTHENBERG, C.J., and SUAREZ and LUCK, JJ.

ROTHENBERG, C.J.

INTRODUCTIONThe plaintiffs below, MC Liberty Express, Inc. (“MC Liberty”) and P.S.

Trucking, Inc. (collectively, “the appellants”), appeal two orders awarding the

defendants below, All Points Services, Inc. (“APS”), Julio Martinez, and Maria

Isabel Martinez (collectively “the appellees”), attorney’s fees and costs under

section 57.105, Florida Statutes (2015). For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

The appellants sued the appellees alleging breach of an oral contract,

conspiracy, fraud, unjust enrichment, and violations of the Florida Deceptive and

Unfair Trade Practices Act (“FDUTPA”), sections 501.201-213, Florida Statutes.

The allegations stem from two contractual agreements for the transportation of

goods.

Pursuant to the agreements, APS served as a broker between various

shippers and truckers for the delivery of goods. Upon written confirmation by the

shippers, reflecting the agreed upon rate, APS would relay that information to the

appellants and arrange for the appellants to pick up and transport the goods. APS

billed the shippers directly, the shippers submitted the invoiced amounts to APS,

and in exchange for its services, APS was to receive a 10% broker’s fee based on

the gross rate that it charged the shippers.

The complaint alleges that the appellees, however, engaged in a scheme to

defraud the appellants by altering its invoices to reflect lower shipping charges

2than what they had actually charged the shippers. As a result, the appellants

contend that they were receiving a lower share of the shipping costs charged and

collected than what they were entitled to receive.

The alleged fraudulent billing by APS was discovered after the appellants

had filed an insurance claim in connection with a damaged shipment. Specifically,

the appellants allege that when they were told that their insurance claim was going

to be denied because they had not provided the insurer with the shipment’s written

confirmation, they requested the necessary documents from Jorge Betancourt, a

dispatcher with APS. It was at that point that the appellants learned of the

appellees’ fraudulent billing practices from Mr. Betancourt, who then provided the

appellants with the altered invoices. Thereafter, the appellants filed suit against

the appellees.

On February 5, 2014, in response to the complaint, the appellees filed a

motion to dismiss claiming that the complaint failed to state a claim. The motion

to dismiss was denied and the appellees were ordered to file an answer. On March

23, 2015, counsel for appellants, Jorge L. Fors, moved to withdraw, the motion

was granted on April 15, 2015, and Amy Lee Burkich filed a notice of appearance

as counsel for the appellants.

On August 21, 2015, counsel for the appellees sent attorney Burkich a

proposed motion for sanctions, along with a “safe harbor” letter, pursuant to

3section 57.105. The letter informed the appellants and attorney Burkich that the

lawsuit should be dismissed because: (1) the claims relating to the transportation

of goods in the United States are governed by federal law, and were, therefore,

subject to preemption; (2) most of the claims alleged were time-barred; and (3) the

Martinezes were improperly named as parties.

Three days later, attorney Burkich filed an emergency motion for leave to

withdraw as counsel, citing both medical reasons and irreconcilable differences

with the appellants. The motion was granted on September 2, 2015, and the

appellants were given thirty days to retain new counsel. On October 1, 2015,

Tomas Pastori, of Garcia-Menocal, Irias and Pastori LLP (“the GMIP law firm”),

entered a limited appearance on behalf of the appellants and immediately moved

for an extension of time to review the file and determine whether the GMIP law

firm would represent the appellants.

Jorge Garcia-Menocal (“Garcia-Menocal”) and the GMIP law firm entered a

formal appearance on behalf of the appellants on October 14, 2015. On December

1, 2015, the appellees filed a motion for sanctions against the appellants, GarciaMenocal, and the GMIP law firm, and a motion for summary judgment. The

motion for summary judgment argued, among other things, that the claims at issue

were either preempted and/or time-barred under various federal statutes governing

interstate trucking and transportation of cargo by motor carriers in the United

4States. See e.g.

, 49 U.S.C. § 13501 (establishing general federal jurisdiction over

the transportation of passengers and property by motor carriers, as well as the

procurement of that transportation); see also 49 U.S.C. § 14501 (forbidding states

from enacting or enforcing laws related to the pricing, routes, or services of any

motor carrier); 49 U.S.C. § 14705 (limiting actions by and against carriers). In

addition, the appellees argued that the remaining claims failed to meet the circuit

court’s jurisdictional requirements.

The trial court conducted a hearing on the appellees’ motion for summary

judgment, granted the motion, and entered a written order on June 23, 2016. The

trial court’s written order made the following findings:

IT IS ADJUDGED that Plaintiffs’ claims are preempted by federal

law, and further, Plaintiffs did not raise any issues of material fact in

their Response in Opposition to Defendants’ Motion for Final

Summary Judgment

, and therefore Defendants’ Motion for Final

Summary Judgment is GRANTED. Plaintiffs, MC LIBERTY

EXPRESS, INC., and P.S. TRUCKING, INC., take nothing by this

action and that Defendants, [APS], JULIO MARTINEZ and MARIA

ISABEL MARTINEZ, shall go hence without day.

No other substantive findings were made.

The record reflects that after granting the appellees’ motion for summary

judgment, the trial court declined to rule on the appellees’ motion for sanctions,

electing, instead, to order both sides to meet and attempt to resolve the motion.

The parties were, however, unable to reach an agreement, and thereafter the

5appellees’ section 57.105 motion for sanctions against the appellants, GarciaMenocal, and the GMIP law firm was noticed for a hearing.

The trial court conducted a hearing and issued two orders granting the

appellees’ motion for section 57.105 sanctions against the appellants, GarciaMenocal, and the GMIP law firm. 1 This appeal followed.

ISSUES ON APPEAL

The appellants contend that the trial court abused its discretion by awarding

attorney’s fees to the appellees because: (1) the trial court made no factual

findings as to whether the sanctions motion the trial court proceeded under was

served upon the appellants, Garcia-Menocal and GMIP; (2) the trial court made no

specific findings as to the requisite factors articulated by the Florida Supreme

Court in Florida Patient’s Compensation Fund v. Rowe

, 472 So. 2d 1145 (Fla.

1985) (holding that in determining reasonable attorney’s fees, Florida courts

should utilize the criteria set forth in Disciplinary Rule 2-106(b) of the Florida Bar

Code of Professional Regulation) when imposing section 57.105 fees as a sanction,

id. at 1150; (3) the trial court made no explicit finding that there was a complete

1 The initial brief and the notice of appeal indicate that the appellants are appealing

two trial court orders entered on March 29, 2017. Although the record contains

two orders, the two orders are identical and appear to be duplicates. Both are

captioned, “Order Granting Defendants’ Motion for Costs and Attorneys’ Fees and

Defendants’ Motion for Sanctions,” and order the appellants, Garcia-Menocal and

the GMIP law firm to pay the appellees’ attorney’s fees in the amount of

$28,350.00 and costs in the amount of $605 within fourteen days of the entry of

the order. No other findings of fact or law are contained therein.

6absence of justiciable issues of law or fact raised in the complaint or that the

appellants’ claims or defenses were unsupported; (4) the appellants’ claims were

supported both factually and by the application of then-existing law; and (5) the

trial court failed to apportion the fee award as required by section 57.105.

STANDARD OF REVIEW

The parties agree that a trial court’s order awarding or denying attorney’s

fees

under section 57.105 is reviewed for an abuse of discretion. See Trust Mortg.,

LLC v. Ferlanti

, 193 So. 3d 997, 999 (Fla. 4th DCA 2016). As explained by the

Florida Supreme Court in Canakaris v. Canakaris

, 382 So. 2d 1197, 1203 (Fla.

1980):

Discretion, in this sense, is abused when the judicial action is

arbitrary, fanciful, or unreasonable, which is another way of saying

that discretion is abused only where no reasonable man would take the

view adopted by the trial court. If reasonable men could differ as to

the propriety of the action taken by the trial court, then it cannot be

said that the trial court abused its discretion.

Id. (quoting Delno v. Mkt. St. Ry. Co.

, 124 F.2d 965, 967 (9th Cir. 1942)).

ANALYSIS

Section 57.105(1) provides as follows:

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

7losing 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 then-existing law

to those material facts.

In addressing the statute’s procedural requirements, subsection (4) mandates

as follows:

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.

(emphasis added).

“The purpose of section 57.105 is to discourage baseless claims, stonewall

defenses and sham appeals in civil litigation by placing a price tag through

attorney’s fees awards on losing parties who engage in these activities.” Whitten

v. Progressive Ins. Co., 410 So. 2d 501, 505 (Fla. 1982). Historically, a court

could award attorney’s fees under section 57.105 only where there was a

“complete absence of a justiciable issue of either law or fact.” BridgestoneFirestone, Inc. v. Herron

, 828 So. 2d 414, 417 (Fla. 1st DCA 2002) (quoting §

57.105, Fla. Stat. (1997)); see also Muckenfuss v. Deltona Corp

. , 508 So. 2d 340,

341 (Fla. 1987). However, in an effort to reduce frivolous litigation, the

8Legislature revised section 57.105 as a part of the 1999 Tort Reform Act.

Bridgestone-Firestone, 828 So. 2d at 417 (citing Ch. 99

– 225, § 4, Laws of Fla.).

The new version of the statute broadens remedies that were previously

available. Wendy’s of N.E. Fla. v. Vandergriff

, 865 So. 2d 520, 523 (Fla. 1st DCA

2003). Unlike its predecessor, the amended statute no longer requires a party to

show a complete absence of a justiciable issue of fact, but instead allows recovery

of fees for any claims or defenses that are unsupported. Bridgestone-Firestone

, 828

So. 2d at 417-18.

Notwithstanding these amendments, Florida courts have continued to

caution that section 57.105 must be carefully applied to ensure that it serves the

purpose for which it was intended

– to deter frivolous pleadings. Id. at 419; see

also Mullins v. Kennelly

, 847 So. 2d 1151, 1154 (Fla. 5th DCA 2003). Thus, an

award of fees under section 57.105 requires more than the moving party

succeeding in obtaining a dismissal of the action or the entry of a summary

judgment in its favor, id. ; see also Bowen v. Brewer

, 936 So. 2d 757, 762 (Fla. 2d

DCA 2006), and a party does not need to have conclusive evidence to prove its

case at the time of filing in order to avoid sanctions. Ferlanti

, 193 So. 3d at 1001.

Where a party reasonably believes the factual basis for its claim exists, it is entitled

to proceed with its claims and seek to prove those facts. Id. If attempts to prove

9those facts are fruitless, that is still not cause for sanctions where the party’s initial

belief was well-founded. Id.

A. Failure to Make the Requisite Findings

Nothing in the amendments or the subsequent case law suggest the trial

court may award section 57.105 attorney’s fees without first making explicit

findings. The law is clear, in order to grant such fees, “the trial court must find

that the action was ‘frivolous or so devoid of merit both on the facts and the law as

to be completely untenable.[’]” Ferlanti

, 193 So. 3d at 1000 (quoting Chue v.

Lehman

, 21 So. 3d 890, 891-92 (Fla. 4th DCA 2009)) (emphasis added); see also

Vasquez v. Provincial S., Inc.

, 795 So. 2d 216, 218 (Fla. 4th DCA 2001) (reversing

an award of attorney’s fees under section 57.105 where the trial court failed to

make specific findings that the claim was frivolous and completely untenable).

This burden is a heavy one. Pappalardo v. Richfield Hosp. Servs, Inc.

, 790 So. 2d

1226, 1228 (Fla. 4th DCA 2001). Additionally, the trial court’s findings must be

based on substantial competent evidence that is either contained in the record or is

otherwise before the court. Yakavonis v. Dolphin Petroleum, Inc.

, 934 So. 2d 615,

618 (Fla. 4th DCA 2006).

The trial court failed to make the requisite findings in this case. No such

findings are contained in the trial court record, no such findings are found in the

trial court’s order, and the appellees’ brief is notably silent on this issue.

10Factual findings by the trial court are not only statutorily required, they are

especially necessary in this case because there is record evidence that the

appellants, Garcia-Menocal, and the GMIP law firm acted upon a good-faith belief

that there existed a factual basis for the appellants’ claims. The appellants claim

that there was an oral contract between the parties, as well as a scheme by the

appellees to defraud the appellants. The sworn affidavits of the appellants’

principals, Christine Ann Smolt 2 and Pedro Antonio Santana, 3 as well as that of

appellees’ own former employee, Jorge Betancourt, appear to support these claims.

The record also suggests that the appellants, Garcia-Menocal, and the GMIP

law firm’s arguments regarding the inapplicability of federal law in the instant case

was not frivolous. APS’s status as a broker was in question, which, in turn, called

into question the applicability of the federal statutes relating to brokers for the

transportation of goods by a motor carrier. The appellants and their counsel relied

on a Federal Motor Carrier Safety Administration printout showing that APS had

not been a licensed broker since October 2006, and based on this evidence, argued

that federal preemption, vis-a-vis the federal statutes governing claims against

brokers and the corresponding federal statutes of limitations, did not apply.

Although the trial court granted the appellees’ motion for summary

judgment after concluding that the appellants’ claims were preempted by federal

2 Smolt is the President and Director of MC Liberty.

3 Santana is the President and Director of P.S. Trucking, Inc.

11law, the trial court’s summary judgment order made no finding that appellants’

position was frivolous, nor did it make such a finding in its orders granting the

appellees’ motion for sanctions. Losing on summary judgment alone, as

previously discussed, does not conclusively prove a section 57.105 claim. If that

were the case every summary judgment would be followed by a section 57.105

motion. Bowen

, 936 So. 2d at 762.

B. Apportionment Under Section 57.105(1)

The appellants contend that the trial court also erred by failing to apportion

the fee award as required by the statute. The appellees’ answer brief is silent on

this issue. Section 57.105(1) requires apportionment of fee awards “to be paid to

the prevailing party in equal amounts by the losing party and the losing party’s

attorney

. . . .” Here, the trial court’s orders appear to improperly impose “joint

and several liability” for the full amount upon the appellants, Garcia-Menocal, and

the GMIP law firm. Specifically, the orders state:

Plaintiffs and/or Plaintiffs’ attorneys Garcia-Menocal, Irias & Pastori

LLP shall pay fees in the amount of $28,350.00 and costs in the

amount of $605.80 within 14 days of the entry of this Order.

Accordingly, reversal is likewise warranted on this issue.

C. Failure to Establish Proper Notice

Section 57.105 provides specific notice requirements that must be satisfied

prior to imposing sanctions. It is undisputed that the appellants, Garcia-Menocal,

12and the GMIP law firm were not served with the December 1, 2015 motion for

sanctions with the requisite twenty-one day safe harbor period prior to the filing of

the motion for sanctions with the trial court. Statutes authorizing awards of

attorney’s fees are considered a derogation of the common law rule providing that

each side bear its own fees. See Anchor Towing, Inc. v. Fla. Dep’t of Transp.

, 10

So. 3d 670, 672 (Fla. 3d DCA 2009); see also Montgomery v. Larmoyeux

, 14 So.

3d 1067, 1072 (Fla. 4th DCA 2009). Thus, the statute awarding attorney’s fees

must be strictly construed. Nathan v. Bates

, 998 So. 2d 1178, 1179 (citing Kittel v.

Kittel

, 210 So. 2d 1, 3 n.7 (Fla. 1968)).

The primary purpose of section 57.105’s safe harbor provision is to provide

the recipient of the motion with notice and the opportunity to withdraw or abandon

a frivolous claim before sanctions are sought. HFC Collection Ctr., Inc. v.

Alexander

, 190 So. 3d 1114, 1119 (Fla. 5th DCA 2016) (citing Maxwell Bldg.

Corp. v. Euro Concepts, LLC

, 874 So. 2d 709, 711 (Fla. 4th DCA 2004)). Thus, in

order to have properly complied with section 57.105, the appellees must have first

served the proposed motion upon the party it sought to sanction in this case

— the

appellants, Garcia-Menocal, and the GMIP law firm.

The record reflects that the appellees’ first proposed motion for sanctions,

dated December 1, 2015, against the appellants, attorney Burkich, and her law firm

was never filed

. The appellees, however, served the proposed motion upon

13attorney Burkich, as required by the safe harbor provision. The second motion for

section 57.105 sanctions against the appellants, Garcia-Menocal, and the GMIP

law firm was filed with the trial court. However, there is no record evidence that

suggests that this proposed motion for sanctions was ever served

, as required by

the statute, on the appellants, Garcia-Menocal, or the GMIP law firm. The safe

harbor letter addressed to attorney Burkich dated August 21, 2015, that

corresponds with the December 1, 2015 proposed motion for sanctions, is

addressed only to attorney Burkich. Neither the appellants, nor Garcia-Menocal or

the GMIP law firm, were listed as recipients, and neither were copied on the letter.

Although the record reflects that Mr. Pastori of the GMIP law firm may

have seen the letter that was sent to attorney Burkich while conducting his initial

review of the file, section 57.105 is in derogation of common law and must be

strictly construed, see Anchor Towing, Inc. v. Fla. Dep’t of Transp.

, 10 So. 3d 670

(Fla. 3d DCA 2009), and this Court in Global Xtreme, Inc. v. Advanced Aircraft

Ctr.

, 122 So. 3d 487 (Fla. 3d DCA 2013), held that the service of a letter, alone,

does not meet the mandatory notice requirements of section 57.105(4). See also

Nathan v. Bates

, 998 So. 2d 1178 (Fla. 3d DCA 2008) (holding that the statute

clearly provides for the service of a motion, not a letter).

In Anchor

, we held that providing actual notice, by way of a letter, was

insufficient to comport with the statutory requirement that a proposed motion be

14served twenty-one days prior to it being filed with the court. Anchor

, 10 So. 3d at

672 (emphasis added). The Anchor case, while not entirely factually parallel to

this case, is certainly instructive. There, Anchor Towing, Inc. (“Anchor”), the

unsuccessful bidder on a roadside assistance contract, sought review of an

administrative law judge’s award of attorney’s fees to the successful bidder,

Sunshine Towing, Inc. (“Sunshine”). Sunshine’s counsel had sent a detailed letter

to Anchor’s counsel threatening section 57.105 sanctions if Anchor did not

withdraw certain objections raised in Anchor’s bid protest. No proposed motion

for sanctions was attached. Following a hearing, the administrative law judge

found that the letter complied with section 57.105(4)’s mandatory notice

requirement. On appeal, this Court held that “the letter sent to opposing counsel

[was] not the same as the statutorily required motion, which is required to be

served on opposing counsel and later filed with the court.” Id. (citing Nathan v.

Bates

, 997 So. 2d 1178, 1179 (Fla. 3d DCA 2008)) (emphasis added).

Consistent with the language in section 57.105(4), as interpreted by this

Court in Anchor

, the appellees were required to strictly follow the statute’s

procedural steps as to the appellants, as well as Garcia-Menocal and the GMIP law

firm. Thus, the appellants contend that the trial court erred by failing to determine

whether the appellees had complied with the section 57.105 notice requirements

prior to imposing sanctions. We reject this argument because the first time the

15issue of whether the appellees had satisfied the mandatory notice requirement was

raised was in the appellants’ emergency motion for rehearing, but before the trial

court could rule on the emergency motion for rehearing, the appellants filed their

notice of appeal, thereby divesting the trial court of jurisdiction to rule on the

emergency motion for rehearing.

CONCLUSION

We reverse the trial court’s order awarding section 57.105 attorney’s fees

and costs in favor of the appellees because the trial court failed to make the

requisite findings in its order or to apportion the fees and costs as required. Upon

remand, the trial court may consider the issue of notice raised by the appellants in

their emergency motion for rehearing.

Reversed and remanded.

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