DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

HARVEY LEE DAVIS and ERIC MCCABE,

Appellants,

v.

KENNETH I. BAILYNSON, STEPHEN M. COHEN, and LAW OFFICES 

OF STEPHEN M. COHEN, P.A.,

Appellees.

No. 4D18-1040

[January 30, 2019]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; David E. French, Judge; L.T. Case No. 50-2016-CA009072-XXXX-MBAJ.

William H. Pincus and Melanie L. Campbell of Pincus & Currier LLP, 

West Palm Beach, for appellants.

Stephen M. Cohen of Law Offices of Stephen M. Cohen, P.A., Palm 

Beach Gardens, for appellees.

CONNER, J.

Appellants, Harvey Lee Davis and Eric McCabe, appeal the trial court’s 

order denying their motion for attorney’s fees pursuant to section 

57.105(1), Florida Statutes (2017), seeking fees against Appellees, Stephen 

M. Cohen and the Law Offices of Stephen M. Cohen, P.A. (collectively, 

“Cohen”). In this appeal, we address whether: (1) a section 57.105(1) fee 

motion can be brought solely against an attorney; and (2) a section 

57.105(1) fee motion can properly seek an award where a single cause of 

action asserts more than one factual scenario for liability, and the fee 

motion attacks only one of those factual scenarios as unsupported by law. 

We reverse, concluding the trial court erred in denying fees based on both 

issues.

Background

Appellants collectively own four units in a residential condominium 

complex. Appellants brought an injunction action against the 
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condominium association and its board of directors. Appellee Kenneth I.

Bailynson (“Bailynson”) was a board member who owned thirty-eight units 

in the condominium. In the injunction action, Appellants sought an 

injunction to: (1) prohibit the association from spending, using, lending, 

committing or otherwise disposing of the proceeds of a $1.5 million loan 

that the association took out from a company managed and indirectly 

owned by Bailynson; (2) prohibit the association from making any material 

alterations or substantial additions to the property or common area of the 

condominium without proper approval; and (3) invalidate a special 

assessment and roll monthly assessments back to the 2014 level. After a 

hearing, a temporary injunction was entered which “prohibited the 

[association] from imposing any special assessments and from increasing 

the ‘regular monthly assessments to the unit owners until further Court 

order or agreement of the parties.’”

Subsequently, Bailynson filed suit appeal against Appellants, for 

breach of fiduciary duty, which is the subject of this appeal. Suit was filed 

and Bailynson was represented by Cohen. Cohen alleged that Appellants 

brought the injunction suit as a derivative action on behalf of the 

condominium association, and as the derivative plaintiffs, they “are 

representatives of the Association . . . and must act in the Association’s 

best interest.” Paragraph 18 of the complaint contains the allegations 

which frame the issues in this appeal:

18. Despite having a fiduciary duty to the Association and its 

members, the Defendants [(Appellants)] have, individually and 

collectively, taken action that has directly harmed the 

Association and its members. Specifically, the Defendants 

[(Appellants)] have each:

a. failed and/or refused to pay their regular 

maintenance assessments in the amounts established 

prior to any increases suspended by the Court in Case 

No. 502015CA002803XXXXMB; and

b. failed and/or refused to allow for a modification of 

the Temporary Injunction obtained by the Defendants 

[(Appellants)] in Case No. 502015CA002803XXXXMB to 

allow the Association to increase assessments in an 

amount sufficient to pay for regular operating expenses 

of the Association, including but not limited to the 

payment of the water bills due to the City of West Palm 

Beach.
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Cohen also alleged that Appellants’ conduct in bringing the injunction 

action resulted in the association’s inability to pay its water bill, that the 

water was subsequently turned off to the condominium, and that the City 

of West Palm Beach posted notices on the unit doors advising the 

occupants to vacate due to unsafe conditions.

Appellants sent a safe harbor notice to Cohen, attaching a motion for 

attorney’s fees, specifically citing to sections 57.105(1)(b) and (3)(c), Florida 

Statutes, seeking attorney’s fees from Cohen, but not Bailynson. 

Appellants asserted in the fee motion that the breach of fiduciary duty 

action “is untenable as a matter of law,” and therefore, they sought 

sanctions against Cohen. They specifically argued that Bailynson’s claim

in Paragraph 18(b), as alleged by Cohen, wholly lacked merit because: (1) 

there can be no tortious liability for pursuing one’s legal rights; and (2) 

actions taken within judicial proceedings are protected by the litigation 

privilege. Notably, the fee motion made no allegations regarding Paragraph 

18(a).

Cohen moved to strike or dismiss the fee motion, arguing that: (1) he

did not receive a copy of the fee motion until the day it was filed, in 

violation of the requisite safe harbor period; (2) it was improper for 

Appellants to seek attorney’s fees solely from him and not also Bailynson; 

and (3) the “complaint was not without legal support.”

A hearing was held on the fee motion. The parties made the same 

arguments asserted in the fee motion and the responsive motion to strike 

or dismiss, however, notably, Cohen conceded that the claim in Paragraph 

18(b) was improper. Cohen then further argued that because “[t]here is 

no attack that my theory that their failure to pay their maintenance fees 

was a breach of fiduciary duty [asserted in Paragraph 18(a)],” Bailynson 

had “a colorful claim . . . [and] sanctions should not be imposed.” At the 

end of the hearing, the trial court indicated it would take the issue under 

advisement, but then asked Cohen, “where did you get any authority that 

one of the owners of a condo has the right to sue another owner of a condo 

because they haven’t paid their fees?” Cohen responded that the suit was 

filed against Appellants not as individuals, but as the “representatives” of 

the association, based on their status as derivative plaintiffs in the 

injunction action.

The trial court entered an order denying Appellants’ motion for 

attorney’s fees citing two reasons: (1) simply citing to Sexton v. Ferguson, 

79 So. 3d 51 (Fla. 4th DCA 2011); and (2) it did “not find that the action 

was so frivolous or devoid of merit as to be completely apprehensible,” 
4

citing to Trust Mortgage, LLC v. Ferlanti, 193 So. 3d 997 (Fla. 4th DCA 

2016). Thereafter, Appellants gave notice of appeal.

Appellate Analysis

“In determining whether to award attorney’s fees under section 57.105, 

Florida Statutes (2001), the trial court applies an abuse of discretion 

standard.” Yakavonis v. Dolphin Petroleum, Inc., 934 So. 2d 615, 618 (Fla. 

4th DCA 2006). “The trial court’s finding must be based upon substantial 

competent evidence presented to the court at the hearing on attorney’s 

fees or otherwise before the court and in the trial court record.” Id. 

(quoting Weatherby Assocs., Inc. v. Ballack, 783 So. 2d 1138, 1141 (Fla. 

4th DCA 2001)). However, “[t]o the extent the trial court’s determination 

on a motion for attorney’s fees is based on an issue of law, our standard 

of review is de novo.” Paul v. Avrahami, 216 So. 3d 647, 649 (Fla. 4th DCA 

2017).

Appellants challenge the trial court’s reasons for denying their fee 

motion after it determined that: (1) a 57.105(1) fee motion cannot be 

brought solely against an attorney; and (2) the breach of fiduciary duty 

count was not devoid of merit. We address the trial court’s reasons 

separately. 

57.105 Fee Motion Solely Against Attorney

The trial court’s first reason for denying the fee motion simply cited our 

opinion in Sexton. We presume that the trial court read our prior opinion 

to hold that categorically a 57.105(1) fee motion cannot be brought solely 

against an attorney and not the client, where the attorney is not a “party.”

In Sexton, the appellants, pursuant to a settlement agreement, 

withdrew their fee motion against the client, but argued that the fee motion 

still applied to the client’s prior attorney. Sexton, 79 So. 3d at 53. The 

lower tribunal denied the fee motion after determining that withdrawing 

the fee motion against the client meant the appellants no longer had a 

claim against the attorney. Id. at 54. On appeal, we said that “[t]he plain 

language of section 57.105(1) is clear and unambiguous; it does not 

authorize attorney’s fees to be awarded solely against a party’s attorney.” 

Id. We also distinguished our prior opinion in Avemco Insurance Co. v. 

Tobin, 711 So. 2d 128 (Fla. 4th DCA 1998), where we held that a lawyer 

can be held liable for attorney’s fees under section 57.105 even if the 

lawyer’s client is not also held liable for such fees. Sexton, 79 So. 3d at 

54. We reasoned that 
5

[b]ecause the lawyers in Avemco sought proceeds in a court 

registry for compensation allegedly due to them from the 

client, the lawyers “[h]aving so made themselves parties . . . 

came under the statutory term ‘party’ in section 57.105(b) by 

their own conduct and were thus properly liable for fees even 

though their nominal client in the litigation was not liable for 

such fees.”

Id. at 55 (alteration in original) (quoting Avemco, 711 So. 2d at 130-31). 

However, in Sexton, we concluded that the attorney did not “[make] himself 

a party in this proceeding or act[] in a manner that would have raised his 

status to a ‘party’ as did the lawyer in Avemco.” Id. at 55.

Sexton is inapposite for resolution of the fee motion in this case for two 

reasons. First, Sexton relies largely on waiver analysis. Second, and more 

importantly, in 2010, section 57.105 was amended, adding, among other 

things, section 57.105(3)(c). See 2010 Fla. Sess. Law Serv. Ch. 2010-129. 

Therefore, because subsection (3)(c) was not part of the applicable statute 

in Sexton, the holding there does not apply to the instant case, where the 

statute has now been amended to include the subsection.

The applicable version of section 57.105 provides:

(1) 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:

(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.

. . . .

(3) Notwithstanding subsections (1) and (2), monetary 

sanctions may not be awarded: 

. . . .
6

(c) Under paragraph (1)(b) against a represented party. 

§ 57.105(1) and (3), Fla. Stat. (2017) (emphases added). Appellants argue 

that because their motion was filed under subsection (1)(b) asserting the 

action was not supported by law, the applicable version of the statute 

makes clear that sanctions cannot be awarded against a represented party

for such a claim, pursuant to subsection (3)(c) of the statute. We agree 

with the argument.

“A ‘statute should be interpreted to give effect to every clause in it, and 

to accord meaning and harmony to all of its parts’ and is not to be read in 

isolation, but in the context of the entire section.” Charles v. Sn. Baptist 

Hosp. of Fla., Inc., 209 So. 3d 1199, 1207 (Fla. 2017) (quoting Jones v. ETS 

of New Orleans, Inc., 793 So. 2d 912, 914-15 (Fla. 2001)). Although section 

57.105(1) states that the award of fees must be awarded “in equal amount 

by the losing party and the losing party’s attorney,” this is limited by 

section 57.105(3)(c). Section 57.105(3)(c) clearly states that attorney’s fees 

cannot be levied upon a party, where the basis for attorney’s fees pursuant 

to section 57.105 is subsection (1)(b) and the claim or defense is not 

supported by the application of then-existing law to the material facts. 

We, as well as our sister courts, have consistently held that under 

57.105(1)(b), only a party’s attorney may be ordered to pay attorney’s fees 

under section 57.105(3)(c). See Paul, 216 So. 3d at 651 n.3 (stating that,

“Appellee’s counsel, and not Appellee, must pay the attorney’s fees,” citing 

to section 57.105(3)(c)); Wells v. Halmac Dev., Inc., 189 So. 3d 1015, 1021 

(Fla. 3d DCA 2016) (“The fee award shall be taxed solely against counsel 

representing Castro at that time.”); Santiago v. Sunset Cove Invs., Inc., 198 

So. 3d 658, 661 (Fla. 2d DCA 2015) (“[B]ecause we base the award of 

appellate attorneys’ fees on section 57.105(1)(b), the fees may only be 

awarded as against [appellant]’s counsel.”); Robbins v. Rayonier Forest 

Res., L.P., 102 So. 3d 737, 738 (Fla. 1st DCA 2012) (“Attorneys [sic] fees 

awarded under [section 57.105(1)(b)] may be assessed against only the 

losing partys [sic] attorney.”); Fla. Houndsmen Ass’n, Inc. v. State, 134 So. 

3d 999, 1001 (Fla. 1st DCA 2012) (“Because our decision is based on the 

lack of legal, rather than factual, merit, only Appellants’ attorneys shall be 

responsible for paying this award.”); Waddington v. Baptist Med. Ctr. of 

Beaches, Inc., 78 So. 3d 114, 117 (Fla. 1st DCA 2012) (“Finding that this 

appeal satisfies section 57.105(1)(b), we award Appellee its reasonable 

appellate attorney’s fees to be paid in full amount by Appellant’s counsel.”). 
7

Cohen argues Sexton does apply to the post-2010 version of section 

57.105, because we cited to the “2010” version of section 57.105 in the 

opinion. However, this argument is incorrect. As Appellants correctly 

argue, since the statute was amended in 2010, there were two separate 

versions of the statute during that year. The amended, and current 

version, went into effect on July 1, 2010. See § 11.2421, Fla. Stat. (2018). 

As Appellants point out, our Sexton opinion indicates that the fee motion 

in that case was filed prior to July 1, 2010. See Sexton, 79 So. 3d at 53. 

Therefore, the version of the statute prior to the 2010 amendment would 

have been the applicable statute in Sexton.

We conclude that the trial court erred in denying the fee motion based 

on the fact that it sought attorney’s fees solely against the law firm and 

not the client, where the fee claim is limited by section 57.105(3)(c). Thus, 

we reverse the trial court on this issue.

Whether the Action Was Supported by Law

The trial court’s second reason for denying the fee motion was that it 

found “that the action was [not] so frivolous or so devoid of merit as to be 

completely apprehensible,” citing to Ferlanti, 193 So. 3d at 1000. In 

attacking the trial court’s second reason, Appellants’ arguments 

encompass three sub-issues: (1) whether the trial court relied upon an 

incorrect standard; (2) whether the trial court could award fees for one 

factual scenario of liability asserted in a count asserting two separate 

factual scenarios for liability; and (3) whether Paragraph 18(b) was 

supported by law. We address the three sub-issues sequentially.

Wrong Standard

Appellants argue that the trial court relied upon the wrong standard 

because the order denying the fee motion stated that the trial court did 

“not find that the action was so frivolous or so devoid of merit as to be 

completely apprehensible.” More specifically, Appellants argue that 

“completely apprehensible” is not the applicable standard. 

Section 57.105(1) provides for attorney’s fees for the prevailing 

party on a claim or defense in a civil proceeding if the court 

determines that the losing party or the losing party’s attorney 

knew or should have known that the claim or defense was not 

supported by the material facts or the application of the law.

Blinn v. Fla. Power & Light Co., 189 So. 3d 227, 229 (Fla. 2d DCA 2016). 

As the First District discussed in Wendy’s of N.E. Florida, Inc. v. 

Vandergriff, 865 So. 2d 520 (Fla. 1st DCA 2003):
8

[The] statute was amended in 1999 as part of the 1999 Tort 

Reform Act in an effort to reduce frivolous litigation and 

thereby to decrease the cost imposed on the civil justice 

system by broadening the remedies that were previously 

available. Unlike its predecessor, the 1999 version of the 

statute no longer requires a party to show a complete absence 

of a justiciable issue of fact or law, but instead allows recovery 

of fees for any claims or defenses that are unsupported. 

However, this Court cautioned that section 57.105 must be 

applied carefully to ensure that it serves the purpose for which 

it was intended, which was to deter frivolous pleadings.

Id. at 523 (internal citations omitted).

In denying fees in this case, the trial court cited to Ferlanti, which relied 

upon a correct statement of the standard. Although we agree “completely 

apprehensible” is not articulated in section 57.105(1) or the case law, we 

are satisfied that the trial court simply misspoke in its finding that 

Bailynson’s breach of fiduciary action against Appellants was not “so 

devoid of merit . . . as to be completely untenable.” Id. at 1000 (emphasis 

added) (quoting Wapnick v. Veterans Council of Indian River Cty., Inc., 123 

So. 3d 622, 624 (Fla. 4th DCA 2013)). Therefore, we conclude the trial 

court relied upon the correct standard.

Fees for One Factual Scenario of Liability Where the Action Alleges Two 

Factual Scenarios

A unique aspect of application of section 57.105(1) to this case is that 

Bailynson brought only one count alleging breach of fiduciary duty, but 

asserted two different factual scenarios to support the count: Paragraph 

18(a), alleging a failure to pay maintenance assessments, and Paragraph 

18(b), alleging a failure or refusal to allow a modification of the temporary 

injunction. Because it was not referred to in the safe harbor notice, 

Paragraph 18(a) could not be a basis for awarding fees. Thus, this appeal 

raises the issue of whether 57.105(1) fees can be awarded for “part” of an 

action. Cohen argues that there was one claim asserting separate bases, 

and because one part of the claim was not asserted in the safe harbor 

notice, fees cannot be awarded for the other part of the claim. Appellants 

on the other hand, argue that after section 57.105(1) was amended in 

1999, the new “version of the statute no longer requires a party to show a 

complete absence of a justiciable issue of fact or law, but instead allows 

recovery of fees for any claims or defenses that are unsupported.” 

Yakavonis, 934 So. 2d at 619 (emphases added) (quoting Vandergriff, 865 

So. 2d at 523). 
9

We agree with Appellants that if an action asserts a theory of liability 

using more than one, but separate, factual scenarios in support of the 

theory, and one of the factual scenarios meets the criteria for a 57.105(1) 

fee sanction because it is not supported by law, the sanction must be 

ordered. Our conclusion is based on the change in the statute, and how 

courts have interpreted the language of the amended statute. Under the 

previous version of the statute, “[e]ven if a portion of the complaint is 

frivolous, an award of attorney’s fees is not appropriate so long as the 

complaint alleges some justiciable issues.” Langford v. Ferrera, 823 So. 

2d 795, 796 (Fla. 1st DCA 2001). However, “the revised statute expanded

the number of circumstances in which fees should be awarded.” Read v. 

Taylor, 832 So. 2d 219, 222 (Fla. 4th DCA 2002) (emphasis added). 

“Unlike the prior version [of section 57.105], the current version of the 

statute does not apply only to an entire action, but now applies to any 

claim or defense.” Id. (emphasis added). “Because the statute refers to 

‘any claim or defense,’ it does not require that the entire action be 

unsupported by material facts or the application of then-existing case law.” 

Santiago, 198 So. 3d at 661.

“The central purpose of section 57.105 is, and always has been, to deter 

meritless filings and thus streamline the administration and procedure of 

the courts.” Mullins v. Kennelly, 847 So. 2d 1151, 1154 (Fla. 5th DCA 

2003). Thus, the post-1999 version of section 57.105 has expanded the 

circumstances where fees should be awarded and the purpose is to deter 

meritless filings. Our supreme court has also stated that section 57.105

“creates an opportunity to avoid the sanction of attorney’s fees by creating 

a safe period for withdrawal or amendment of meritless allegations and 

claims.” Bionetics Corp. v. Kenniasty, 69 So. 3d 943, 948 (Fla. 2011) 

(emphasis added) (quoting Walker v. Cash Register Auto Ins. Of Leon Cty., 

Inc., 946 So. 2d 66, 71 (Fla. 1st DCA 2006)). Therefore, it appears that 

our supreme court has viewed even individual allegations as part of what 

section 57.105(1) seeks to deter. By “individual allegations,” we are 

referring to a series of allegations framing a theory of liability based on a 

factual scenario that is not supported by law.

Our view of the statute also makes sense practically. If it were the case 

that a party could assert multiple factual scenarios of liability pled as part 

of “one count,” and such pleading practice could shield the party from 

section 57.105(1) fees because at least one scenario was supported in law 

and fact, then it would elevate form over substance with creative pleading. 

Additionally, whereas here the factual scenarios in Paragraph 18(a) and 

Paragraph 18(b) are distinct, they could have been asserted in two 

separate counts. To define a “claim” under section 57.105(1) as an entire 

count, would mean that Cohen in this case would avoid fees because the 
10

complaint contained only one count, as opposed to bringing two separate 

counts for Paragraph 18(a) and Paragraph 18(b). We conclude that such 

an interpretation would defeat the purpose of section 57.105(1).

Paragraph 18(b) as Grounds for Fee Sanction

Paragraph 18(b) essentially alleged that Appellants would not agree to 

modify a court order. Appellants argue that Paragraph 18(b) was not 

supported by then-existing law because there can be no tortious liability 

for assertion of a legal right, due to the litigation privilege.

Appellants are correct that there is no tortious liability for assertion of 

a legal right because “[a] privilege exists as a matter of law to engage in 

reckless or even outrageous conduct if there is sufficient evidence that 

shows the defendant did no more than assert legal rights in a legally 

permissible way.” Rivers v. Dillards Dep’t. Store, Inc., 698 So. 2d 1328, 

1332 (Fla. 1st DCA 1997) (quoting Canto v. J.B. Ivey & Co., 595 So. 2d 

1025, 1028 (Fla. 1st DCA 1992)). “The litigation privilege applies across 

the board to actions in Florida, both to common-law causes of action, 

those initiated pursuant to a statute, or of some other origin.” Echevarria, 

McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380, 384 (Fla. 

2007). “[A]bsolute immunity must be afforded to any act occurring during 

the course of a judicial proceeding, regardless of whether the act involves 

a defamatory statement or other tortious behavior . . . so long as the act 

has some relation to the proceeding.” Levin, Middlebrooks, Mabie, Thomas, 

Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994). 

Because the decision of whether to agree to a modification of the injunction 

in this case was clearly related to the injunction action, we agree that the 

litigation privilege applied to Appellants’ refusal to agree to a modification 

of the injunction, and Cohen should have known it applied. 

Even more telling here, however, is that Cohen conceded that there was 

no basis in law for his allegations in Paragraph 18(b). At the fee hearing, 

he stated that “the case law is clear as to that point,” referring to the 

propriety of the allegation that Appellants “failed and refused to allow for 

[a] modification.” Cohen also later admitted that “the case law is clear as 

to the one area of law,” again referring to the lack of a legal basis to support 

Paragraph 18(b). The trial court then asked why Cohen “thr[e]w that in 

there,” and Cohen said he “didn’t recognize it at the time,” and cited case 

law for the standard for section 57.105 fees. Cohen continued to then 

argue: (1) that there was no attack on the allegations in Paragraph 18(a), 

and therefore, there was “nothing presented . . . that that part of the claim 

was without merit”; and (2) there had been no action in the case between 

the safe harbor letter and dismissal of the case.
11

We conclude that the trial court was persuaded by Cohen’s argument 

that because Paragraph 18(a) was not attacked for sanctions and 

Paragraph 18(b) was part of the same count, the count for breach of 

fiduciary duty was not “so devoid of merit . . . as to be completely 

untenable,” and it was appropriate to deny fees on that basis, despite 

Cohen’s concession at the fee hearing that there was no legal basis for 

asserting liability under Paragraph 18(b). However, Cohen should have 

known the litigation privilege applied to Paragraph 18(b) and his 

concession establishes there was no competent substantial evidence 

supporting the denial of 57.105(1) fees.

Conclusion

Although we are satisfied the trial court used the correct standard in 

applying section 57.105(1), we conclude the trial court erred by ignoring 

the application of section 57.105(3)(c) to section 57.105(1)(b). We hold that 

under proper circumstances, section 57.105(3)(c) permits the filing of a 

section 57.105(1)(b) fee motion solely against an attorney, and not the 

client. We further hold that under the current version of section 57.105(1), 

if an action asserts separate factual scenarios for liability and one of the 

scenarios meets the criteria for a 57.105(1) fee sanction because it is not 

supported by law, the sanction must be ordered. Because the record 

establishes that Appellants are entitled to a fee award and the trial court 

erred in denying their fee motion, we reverse and remand for further 

proceedings.

Reversed and remanded for further proceedings.

TAYLOR and CIKLIN, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.