Third District Court of Appeal

State of Florida 

Opinion filed September 6, 2023.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-2261

Lower Tribunal No. 19-866-SP

________________

AT&T Mobility, LLC,

Appellant,

vs.

Patrick Rigney,

Appellee.

An Appeal from the County Court for Miami-Dade County, Gordon 

Murray, Judge.

Dentons US, LLP, Angel A. Cortiñas and Jonathan H. Kaskel, for 

appellant.

Beighley, Myrick, Udell & Lynne, P.A., and Maury L. Udell, for appellee.

Before DAMOORGIAN, GERBER, and ARTAU, Associate Judges. 

GERBER, Associate Judge.

The defendant below appeals from the county court’s final orders 

denying the defendant’s “[Section] 57.105 Sanctions Motion for Raising a 
2

Baseless ‘Data Throttling’ Claim,” and “[Section] 57.105 Sanctions Motion 

for Raising a Legally Deficient ‘Administrative Fee’ Claim.” The defendant 

argues it proved the plaintiff and his trial counsel knowingly asserted and 

maintained patently false claims, and therefore the county court erred in 

denying the two motions. According to the defendant, “Section 57.105 ...

was created precisely to address this type of frivolous litigation.”

We agree with the defendant’s argument as to its “[Section] 57.105 

Sanctions Motion for Raising a Baseless ‘Data Throttling’ Claim,” and 

therefore reverse the county court’s two duplicative orders denying that 

motion. We affirm, without further discussion, the county court’s order 

denying the defendant’s “[Section] 57.105 Sanctions Motion for Raising a 

Legally Deficient ‘Administrative Fee’ Claim.” 

We present this opinion in six sections:

1. The plaintiff’s data throttling claim;

2. The defendant’s motion for judgment on the pleadings;

3. The defendant’s section 57.105(1)(a) motion as to data throttling;

4. The county court’s hearings and orders;

5. The parties’ arguments on appeal; and

6. Our review.
3

1. The Plaintiff’s Data Throttling Claim

In August 2019, the plaintiff, through his attorney, filed a statement of 

claim against the defendant in county court. After the parties stipulated to 

invoke the Florida Rules of Civil Procedure, the plaintiff ultimately filed a

“Corrected Amended Complaint,” the first three counts of which are relevant 

to this appeal.

The plaintiff’s “Count I – Fraud” pertinently alleged:

30. ... [I]n [its] advertising, sale, and renewal of mobile 

data plans, [Defendant] represented, directly or 

indirectly, expressly or by implication, to the Plaintiff, 

an unlimited mobile data plan customer, that the 

amount of data that the Plaintiff could access in any 

billing period would not be limited. Plaintiff is not in 

possession of the mobile data contract as it is under 

the exclusive control of [Defendant].

31. [Defendant] specifically omitted the fact that it intended 

to throttle Plaintiff’s data, without Plaintiff’s knowledge 

or consent. Had [Defendant] not omitted this 

information, Plaintiff would have not purchased [an] ... 

unlimited plan.

32. Plaintiff relied on [Defendant’s] representations 

regarding providing unlimited data, and, as a result, 

incurred damages and was injured as a result of the 

fraud by omission.

(emphases added).

The plaintiff’s “Count II – Breach of Implied Duty of Good Faith and Fair 

Dealing” pertinently alleged:
4

38. Plaintiff had a wireless agreement with [Defendant] 

wherein Plaintiff had a reasonable expectation of

performance of the agreement with no throttling of 

Plaintiff’s data speed so as to provide Plaintiff with 

unlimited data.

39. [Defendant] was required to act in a commercially 

reasonable manner and limiting its ability to act 

capriciously to contravene the reasonable 

expectations of the Plaintiff in the [Defendant’s]

performance [of the] wireless agreement.

...

43. As a result of [Defendant’s] breach of [the] implied 

covenant of good faith and fair dealing, Plaintiff has 

been damaged.

(emphases added).

The plaintiff’s “Count III – Damages Under the Florida Deceptive and 

Unfair Trade Practices Act” pertinently alleged:

47. Upon information and belief, Plaintiff was a consumer 

who had an “unlimited” data plan as advertised by

[Defendant]. In the advertising, sale, and renewal of 

the unlimited mobile data plan, [Defendant] entered

into a mobile data contract with Plaintiff that was 

advertised as providing access to unlimited mobile 

data and did not provide that [Defendant] could modify, 

diminish, or impair the services of customers who use 

more than a specified amount of data for permissible 

activities.

48. [Defendant] imposed significant data speed 

restrictions on Plaintiff by virtue of its use of its network 

which flows throughout the United States and in 

particular, Florida. This practice was, and is, an unfair 

act or a deceptive trade practice ....
5

49. In the advertising, sale, and renewal of mobile data 

plans, [Defendant] has represented, directly or 

indirectly, expressly or by implication, to unlimited

mobile data plan customers that the amount of data 

that the customer could access in any billing period 

would not be limited. Such a representation is unfair 

or deceptive as defined under the FDUTPA. Plaintiff 

is not in possession of the actual mobile data contract 

as it [is] under the exclusive control of [Defendant].

(emphases added).

2. The Defendant’s Motion for Judgment on the Pleadings

The defendant, after filing its answer and affirmative defenses, filed a 

motion for judgment on the pleadings. The defendant’s motion pertinently 

alleged the plaintiff’s data throttling claims were “defeated by the plain 

language of the applicable contracts between [Defendant] and Plaintiff that 

form the basis of Plaintiff’s claims.”

The defendant attached to its motion the governing “Wireless 

Customer Agreement” upon which it was relying. The defendant argued that 

even though the plaintiff had failed to attach the agreement to his corrected 

amended complaint, the county court could consider the agreement’s 

contents in ruling on the defendant’s motion. In support, the defendant cited, 

among other cases, Glen Garron, LLC v. Buchwald, 210 So. 3d 229, 233 

(Fla. 5th DCA 2017) (“When a party refers to a document in the complaint, 
6

the trial court may use that document to assess the nature of the claims 

alleged in the complaint.”).

The defendant’s motion then quoted various sections of the agreement 

which, according to the defendant, defeated the plaintiff’s claims, including 

the following section:

[Defendant] may reduce your data ... speeds at any 

time or place if your data usage exceeds an applicable, 

identified usage threshold during any billing cycle.

(emphases added).

Based on such plain language, the defendant argued it was entitled to 

judgment on the pleadings:

[C]ontrary to Plaintiff’s assertion that the Wireless 

Customer Agreements do not ... allow [Defendant] to 

“modify, diminish, or impair the service of unlimited mobile 

data plan customers,” these Agreements explicitly provide 

[Defendant] with the ability to do exactly that. Plaintiff’s 

data throttling claims cannot rely on alleged 

misrepresentations that contradict the plain language of 

the parties’ contract, thus entitling [Defendant] to a 

judgment on these claims as a matter of law.

(internal citation omitted).

3. The Defendant’s Section 57.105(1)(a) Motion as to Data Throttling

One month after the defendant filed its motion for judgment on the 

pleadings, the defendant served the plaintiff with its “[Section] 57.105 
7

Sanctions Motion for Raising a Baseless ‘Data Throttling’ Claim.” The 

defendant summarized its argument under section 57.105(1)(a) as follows:

[Defendant] has never “throttled” Plaintiff’s wireless 

account as alleged because Plaintiff has never had an

unlimited data plan, or any other plan, that was ever 

subject to the “throttling” program [which] Plaintiff 

describes. Thus, Plaintiff’s “throttling” claim is not 

supported by the law or material facts necessary to 

establish the claim. Pursuant to Florida Statute [section] 

57.105, this Court should enter an order requiring Plaintiff 

and/or Plaintiff’s counsel ... to pay [Defendant’s] 

reasonable attorney’s fees based on the filing and/or 

maintenance of claims against [Defendant] that are devoid 

of any legal or factual basis.

(emphases added).

In support, the defendant attached the sworn declaration of a manager 

within the defendant’s “Office of the President.” The manager’s sworn 

declaration attested to her personal knowledge to testify regarding the status 

of a particular customer account and her ability to establish the foundation 

for the business records exception to the hearsay rule regarding such 

records. The manager’s sworn declaration then pertinently attested:

[O]n [December 18, 2010], Plaintiff obtained the Nation 

450 Rollover with 2GB Data Plan; on September 20, 2013, 

Plaintiff enrolled in the Family Talk Nation 700 Rollover 

with 2GB Data Plan; on December 13, 2015, Plaintiff 

enrolled in the Mobile Share Value 2GB Data Plan; and, on 

March 27, 2019, Plaintiff obtained the Mobile Share Value 

4GB Data Plan and has remained on that plan until the 

present date.
8

None of these plans are an unlimited data plan. As the 

plan names indicate, the plan price includes a specific 

allotment of data per month.

(emphasis added; paragraph numbers omitted). Attached to the manager’s 

sworn declaration were copies of the plaintiff’s referenced data plans.

Based on the manager’s sworn declaration, the defendant’s section 

57.105(1)(a) motion pertinently argued:

Plaintiff and Plaintiff’s Counsel knew or should have 

known that Plaintiff’s claims based on “throttling” of an 

unlimited data plan lack a basis in law and fact. ... Plaintiff 

cannot state a viable cause of action for fraud, breach of 

[the implied duty] of good faith and fair dealing, or violation 

of Florida’s Deceptive and Unfair Trade Practices Act ... 

based on “throttling” of an unlimited data plan because 

Plaintiff has never had an unlimited data plan. There is no 

amount of discovery that can possibly call into question the 

indisputable fact that Plaintiff has never had an unlimited

data plan subject to “throttling.” Plaintiff and Plaintiff’s 

Counsel’s refusal to acknowledge this fact requires that 

this Court impose sanctions against Plaintiff and/or 

Plaintiff’s Counsel in accordance with [Florida Statute 

section] 57.105.

(emphases added).

The plaintiff did not withdraw his corrected amended complaint’s three 

counts pertaining to his data throttling claim within twenty-one days of service 

of the defendant’s section 57.105(1)(a) motion, as permitted by section 

57.105(4), to avoid the possibility of monetary sanctions. Shortly thereafter, 

the defendant filed its section 57.105(1)(a) motion with the county court.
9

4. The County Court’s Hearings and Orders

The county court first held a hearing on the defendant’s motion for 

judgment on the pleadings. At the end of the hearing, the county court orally 

ruled it was granting the motion with prejudice. The county court requested 

the defendant’s counsel to submit a written order reflecting the oral ruling. 

However, the following day, before the county court could execute a written 

order memorializing its oral ruling granting the defendant’s motion for 

judgment on the pleadings with prejudice, the plaintiff filed a notice of 

voluntary dismissal of his entire action against the defendant without 

prejudice.

The county court later held a hearing on the defendant’s section 

57.105(1)(a) motion. At the hearing, defense counsel pertinently argued:

Plaintiff’s data throttling claim [was] premised on the 

assertion that [Defendant] throttled his unlimited data plan. 

...

... [T]he problem with [that] assertion [was,] as 

established by the declaration attached to the motion for 

sanctions, Plaintiff has never had an unlimited data plan 

with [Defendant]. ... He’s always had tiered plans. So ... 

it’s not the fact that these claims failed to state a claim[.] 

[It’s] the fact that [these claims were] based on a falsity. 

That’s what justif[ies] sanctions under Florida [S]tatute 

[section] 57.105[(1)(a)].

(emphases added).

The plaintiff’s counsel pertinently responded:
10

... [Plaintiff] alleged and advised me that he had an 

unlimited data plan. ... [The declaration attached to 

Defendant’s section 57.105(1)(a) motion is] basically 

saying [Defendant] didn’t have unlimited data. ...

... That’s ... not enough to claim that the data throttling 

claim is frivolous .... [Under section 57.105(1), t]he Court 

must find that the claim, when it was filed, “[(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.[”] 

...

...

And ... [section] 57.105[(3)] says, “Notwithstanding 

[subsections (1)] or [(2)], monetary sanctions may not be 

awarded [(a)] under paragraph 1[(b)], if the court 

determines the claim or defense was initially presented to 

the court as a good faith argument for the extension, 

modification, or reversal of existing law or the 

establishment of new law as [it applied] to the material 

facts, [with] a reasonable expectation of success.” ...

... There’s been no actions against [Defendant] for 

throttling people with tiered data .... I still could have 

amended the claim to seek a tiered data throttling claim. 

That may not have been successful, but it has to be 

frivolous. And it’s not frivolous.

...

... I had a reasonable expectation of succeeding on the 

claims [in this case]. The fact that this Court disagreed with 

me, is not in and of itself fatal to my theory that data 

throttling in and of itself is improper, immoral, unethical. ... 

And if [Defendant] actually throttled [Plaintiff], I would’ve 

amended the complaint to say it’s improper to throttle 

[Plaintiff] under [his tiered data] contract. There is no 
11

existing law on data throttling, Judge. ... And therefore, 

to hold that this [case] is a sanctionable event is improper 

under Florida law.

...

I would submit to the court that a data throttling claim, 

whether it’s [an] unlimited [data plan] or ... a tiered plan is 

not frivolous.

In this instance, we didn’t get to the next level because 

the Court basically found ... the unlimited [data] claim didn’t 

apply. The Court didn’t even address whether or not it was 

a tiered plan. I didn’t even get to that point, Your Honor, 

because I decided to dismiss the cases.

...

... And I’ve ... [also] met the [losing party’s] burden 

under ... [section 57.105(3)(b), which provides that a court 

may not award monetary sanctions] “against [the] losing 

party’s attorney, [if he or she has] acted in good faith, 

based on the representations of his or her client, as to the 

existence of those material facts.” ... [So] I’d ask the Court 

to deny [Defendant’s] motion for sanctions as to data 

throttling.

At one point, the county court interrupted the plaintiff’s counsel’s 

argument to ask whether the plaintiff’s voluntary dismissal of his action

without prejudice, after the county court had orally granted the defendant’s 

motion for judgment on the pleadings with prejudice, should affect the court’s 

evaluation of the defendant’s section 57.105(1)(a) motion. The plaintiff’s 

counsel responded:
12

[The voluntary dismissal] doesn’t affect [the section 

57.105(1)(a) motion] at all .... [T]here’s been no finding on 

the issue because [Plaintiff voluntarily] dismissed the 

case]. If there was an actual finding under Florida law, then 

I think [Defendant] could have a theoretical argument that 

[Plaintiff’s data throttling claim] was sanctionable. ...

(emphases added).

In rebuttal, defense counsel argued that Plaintiff’s counsel, by basing

the corrected amended complaint on the false allegation that Plaintiff had an 

unlimited data plan, deserved section 57.105(1)(a) sanctions:

This is the exact type of conduct that [section] 57.105[(1)(a)]

was intended to prevent[,] and it’s not like [Defendant] was [the] 

only one holding this information, even ignoring the fact we 

produced [that information] in discovery, and we served it on 

[Plaintiff’s counsel] with the Safe Harbor Letter. You know what 

type of plan you have. ...

...

So, Your Honor, that’s the issue here. You, as a matter of 

law, have the jurisdiction to determine whether or not filing a 

claim that’s premised on saying you have an unlimited data plan 

... and especially saying, [“]I don’t have a tiered data plan[,”] 

which is a lie, is frivolous. ... It’s a false assertion of fact. And 

that’s exactly the type of frivolous baseless allegation that 

[section] 57.105[(1)(a)] is meant to deter.

...

... [I]f [Plaintiff’s counsel] would have amended ... [the 

complaint] to a tiered data plan throttling claim ... [that] makes 

zero sense because ... you can’t throttle a tiered plan ... you use 

up your data and it’s done. ... So [Plaintiff’s counsel] let the false 

allegation [of having an unlimited data plan] remain in the record 
13

and that’s what you can’t do, especially after being warned [by 

service of a section 57.105(1)(a) motion]. ...

...

... [Plaintiff’s counsel] tries to say that this was a novel issue. 

[That] [h]e is trying to change the law. I don’t see that, Judge. I 

just see a false allegation. I’m not sure what [Plaintiff’s 

counsel] would want the law to say here, but I don’t see any

reasonable basis to conclude this with some extension of the law 

...

Here[,] there’s no argument regarding law. It’s just a false 

assertion of fact that [Plaintiff’s counsel] filed with the 

Court. So issues of law and issues of fact are separate 

issues under [section] 57.105. And there’s competent, 

substantial evidence before this Court that Plaintiff’s [c]ounsel 

and Plaintiff filed a complaint [which] he ... explicitly premised on 

having an unlimited data plan. And then when served with the 

[section] 57.105[(1)(a) motion,] didn’t dismiss it. You can’t lie [in] 

your pleadings. You just can’t. It’s against the rules.

... And [Defendant] produced the documents and ... served 

[Plaintiff] with the declaration [attesting that Plaintiff had a tiered 

data plan, not an unlimited data plan]. Declarations are 

competent, substantial evidence. A declaration is the same as 

an affidavit under Florida law. ...

So Judge, in conclusion ... [Plaintiff’s complaint is] premised 

on having an unlimited data plan, and he didn’t have one. So for 

that reason, Judge, these claims were frivolous. [These claims] 

were frivolous when ... made, [and] ... were certainly frivolous 

when [Plaintiff’s counsel] was served with the [section] 

57.105[(1)(a)] motion.

(emphases added).
14

After the parties completed their arguments, the county court orally 

announced it was denying the defendant’s section 57.105(1)(a) motion as to 

data throttling. The county court pertinently stated:

[A]t the time [I granted the Defendant’s motion for 

judgment on the pleadings, the Plaintiff’s data throttling 

claim] was a fairly debatable argument. ... I made the 

decision [which] I thought was consistent with the law .... 

And still could have been fairly debatable on appeal ... but 

the Plaintiff[] ... decided to do a voluntary dismissal. ...

...

But as such I cannot find that these arguments were not 

fairly debatable, that they were not filed in good faith, that 

the issue of whether or not the Plaintiff ... either had a 

tier[ed] or unlimited or other type of account still could not 

be a victim of data throttling or slowing down. ... [W]hat I 

would say is the case was dismissed ... so we may never 

or know whether or not [I] was correct in [my] analysis. ...

But I say that again, I don’t find that the actions of the 

Plaintiff was frivolous or in bad faith. So ... I respectfully 

deny the [Defendant’s] motion for [section] 57.105[(1)(a)]

fee[s] ....

After the hearing, the county court entered two duplicative written 

orders confirming its oral denial of the defendant’s section 57.105(1)(a)

motion. The first order stated that the defendant’s motion was denied “for 

the reasons stated on the record.” The second order, after stating the 

defendant’s motion was denied, added:

The Court finds that Defendant has not met its burden with 

respect to [section] 57.105 ... Data throttling is a hotly contested 
15

issue with virtual[ly] no substantive applicable law applying to the 

facts of this case[,] and while this Court did not agree with 

Plaintiff’s theory ... merely losing a case does not amount to a 

frivolous claim. Moreover, in light of the fact that there is no 

applicable law on the issue of data throttling, pursuant to [section] 

57.105(3)[,] the Court determines that the claim was initially 

presented to the Court as a good faith argument for the 

extension, modification, or reversal of existing law[,] or the 

establishment of new law, as it applied to the material facts, with 

a reasonable expectation of success in light of the fact that 

[Defendant] had previously settled numerous cases with 

Plaintiff’s counsel which Defendant did not dispute.

5. The Parties’ Arguments on Appeal

On appeal, the defendant summarizes its argument as follows:

Plaintiff and his trial counsel knowingly asserted and 

maintained patently false claims. Based on these false 

claims, Plaintiff, through counsel, aggressively prosecuted 

this frivolous case, forcing [Defendant] to expend 

substantial monies and attorney time defending [this case]. 

Section 57.105[(1)(a)], Florida Statutes was created 

precisely to address this type of frivolous litigation.

... Plaintiff’s factual claim that he had an unlimited data 

plan was demonstrably false. Plaintiff and Plaintiff’s trial 

counsel should have known it was false prior to filing the 

[f]rivolous [c]omplaint, and certainly had actual knowledge 

it was false upon receiving [Defendant’s] answer, motion 

for judgment on the pleadings, and motion for [section 

57.105(1)(a)] sanctions and supporting [declaration]. 

Plaintiff’s false allegations violated Section 57.105(1)(a) 

and required the trial court to impose sanctions. The 

[county] court reversibly erred by: (i) ignoring the 

uncontroverted evidence that Plaintiff did not even have an 

unlimited plan; and (ii) misapplying the good faith 

exception under Section 57.105(3)(a), which does not

apply to unsupported factual allegations under Section 
16

57.105(1)(a) or claims that could have been, but were not, 

asserted.

(emphases added).

The plaintiff summarizes his response to the appeal as follows:

The ... claim[s] against [Defendant], asserting that 

[Plaintiff] was unjustly subject to data throttling ... [were]

not frivolous, as the trial court correctly ruled. The [county]

court correctly noted that ... [Plaintiff’s] data throttling claim 

was a good faith argument for extension, modification, or 

reversal of existing law or the establishment of new law, as 

it applied to the material facts, with a reasonable 

expectation of success. ...

...

Based on the entirety of the record, the [county] court 

did not abuse its discretion in denying [Defendant’s] 

motions for sanctions and should be affirmed in all 

respects.

6. Our Review

Section 57.105, Florida Statutes (2019), pertinently 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
17

(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:

(a) Under paragraph (1)(b) if the court determines that the 

claim or defense was initially presented to the court as a 

good faith argument for the extension, modification, or 

reversal of existing law or the establishment of new law, as 

it applied to the material facts, with a reasonable 

expectation of success.

(b) Under paragraph (1)(a) or paragraph (1)(b) against the 

losing party's attorney if he or she has acted in good faith, 

based on the representations of his or her client as to the 

existence of those material facts.

Although normally a lower court's order denying a section 57.105(1)(a)

motion is reviewed for an abuse of discretion, an appellate court’s standard 

of review is de novo when the lower court's denial of a section 57.105(1)(a) 

motion is based on an issue of law. L. Offs. of Fred C. Cohen, P.A. v. H.E.C. 

Cleaning, LLC, 290 So. 3d 76, 79 (Fla. 4th DCA 2020); Paul v. Avrahami, 

216 So. 3d 647, 649 (Fla. 4th DCA 2017).

Here, we agree with the defendant’s argument that the county court 

committed two errors—the first error committed as a matter of law, and the 

second error committed as an abuse of discretion—in the county court’s 

application of section 57.105. We will address each error in turn.
18

A. The First Error

The county court’s first error, committed as a matter of law, was in 

disregarding the legal basis upon which the defendant was seeking 

monetary sanctions—section 57.105(1)(a)—and instead focusing solely on 

the plaintiff’s request to apply section 57.105(3)(a)’s prohibition of awarding 

monetary sanctions “if the court determines that the claim or defense was 

initially presented to the court as a good faith argument for the extension, 

modification, or reversal of existing law or the establishment of new law, as 

it applied to the material facts, with a reasonable expectation of success.” § 

57.105(3)(a), Fla. Stat. (2019).

Section 57.105(3)(a)’s plain language states that its prohibition applies 

to a motion seeking monetary sanctions only “[u]nder paragraph(1)(b).” Id. 

However, the defendant’s motion seeking monetary sanctions was not 

brought under section 57.105(1)(b), for which the prevailing party’s burden 

is to show “the losing party or the losing party’s attorney knew or should have 

known that a claim ... when initially presented to the court or at any time 

before trial ... [w]ould not be supported by the application of then-existing 

law to those material facts.” § 57.105(1)(b), Fla. Stat. (2019) (emphases 

added).
19

Rather, the defendant’s motion seeking monetary sanctions was 

brought under section 57.105(1)(a), for which the prevailing party’s burden 

is to show “the losing party or the losing party’s attorney knew or should have 

known that a claim ... when initially presented to the court or at any time 

before trial ... [w]as not supported by the material facts necessary to 

establish the claim or defense.” § 57.105(1)(a), Fla. Stat. (2019) (emphases 

added).

The defendant met its burden under section 57.105(1)(a). The 

plaintiff’s corrected amended complaint repeatedly alleged—seven times, in 

fact—that he was an unlimited data plan customer (the alleged material fact), 

to establish his standing that as an unlimited data plan customer, he was 

unjustly subjected to the defendant’s data throttling.

However, as the defendant’s section 57.105(1)(a) motion argued, the 

plaintiff never was an unlimited data plan customer. Rather, as the 

defendant’s manager’s sworn declaration—attached to the defendant’s 

section 57.105(1)(a) motion—pertinently attested:

[O]n [December 18, 2010], Plaintiff obtained the Nation 

450 Rollover with 2GB Data Plan; on September 20, 2013, 

Plaintiff enrolled in the Family Talk Nation 700 Rollover 

with 2GB Data Plan; on December 13, 2015, Plaintiff 

enrolled in the Mobile Share Value 2GB Data Plan; and, on 

March 27, 2019, Plaintiff obtained the Mobile Share Value 

4GB Data Plan and has remained on that plan until the 

present date.
20

None of these plans are an unlimited data plan. As the 

plan names indicate, the plan price includes a specific 

allotment of data per month.

(emphases added; paragraph numbers omitted).

At no point in the proceedings below did the plaintiff or his counsel 

attempt to challenge the defendant’s manager’s sworn declaration in any 

manner—neither (1) factually on the basis that the defendant’s manager’s

sworn declaration’s attestations were not true; (2) legally on the basis that

the defendant’s manager was unqualified to have rendered such factual 

attestations; or (3) legally on the basis that her factual attestations were not 

competent, substantial evidence upon which the county court could grant the 

defendant’s section 57.105(1)(a) motion.

We acknowledge that, at the hearing below, the plaintiff had argued 

the defendant allegedly had not made any corporate representative available 

for deposition regarding the plaintiff’s claims before the defendant had filed 

its motion for judgment on the pleadings. However, after the county court 

orally pronounced its intent to grant the defendant’s motion for judgment on 

the pleadings with prejudice, the plaintiff chose to voluntary dismiss his 

action. The record does not indicate that before voluntarily dismissing the 

action, the plaintiff had filed a motion for rehearing arguing that a judgment 

on the pleadings would be premature due to the lack of a corporate 
21

representative’s deposition. Nor does the record indicate that upon the 

defendant’s filing of its manager’s sworn declaration, the plaintiff sought to 

depose the defendant’s manager regarding her factual attestations, or that 

the plaintiff attempted to file his own sworn declaration contradicting the 

defendant’s manager’s sworn declaration. Thus, we conclude the plaintiff 

waived any alleged inability to challenge the defendant’s manager’s sworn 

declaration.

Our dissenting colleague argues: “[T]he facts set forth in the sworn 

declaration attached to the motion for sanctions under section 57.105 were 

never stipulated to nor was the declaration itself introduced into evidence at 

the evidentiary hearing held on the sanctions motion. Instead of presenting 

evidence at the hearing, [Defendant] chose to rely solely on its counsel’s 

argument.” Those are arguments which the plaintiff never articulated to the 

county court. Instead, as stated above, the plaintiff failed to challenge the 

defendant’s manager’s sworn declaration factually or legally in any manner.

B. The Second Error

The county court’s second error, committed as an abuse of discretion, 

was in not finding, pursuant to section 57.105(1)(a), that the plaintiff and his 

attorney knew, or should have known, that the plaintiff’s claim, when 

presented to the county court in his corrected amended complaint, was not
22

supported by the material facts necessary to establish the claim. § 

57.105(1)(a), Fla. Stat. (2019). The defendant’s manager’s sworn 

declaration was competent, substantial evidence that the plaintiff never was

an unlimited data plan customer, despite the plaintiff’s oft-repeated 

allegations to the contrary in his corrected amended complaint. The plaintiff 

never presented, and never attempted to present, any evidence

contradicting the defendant’s manager’s sworn declaration.

The plaintiff’s corrected amended complaint, in what may have been a 

thinly-veiled attempt to obscure the plaintiff’s actual knowledge of never 

having been an unlimited data plan customer, alleged in Count I’s paragraph 

30, “Plaintiff is not in possession of the mobile data contract as it is under the 

exclusive control of [Defendant].” (emphases added). The corrected 

amended complaint repeats this allegation in Count III’s paragraphs 47 and 

49: “Upon information and belief, Plaintiff was a consumer who had an 

‘unlimited’ data plan as advertised by [Defendant]. ... Plaintiff is not in 

possession of the actual mobile data contract as it [is] under the exclusive 

control of [Defendant].” (emphases added).

We view these allegations as specious. As the defendant’s counsel 

contended in his rebuttal argument during the section 57.105(1)(a) hearing, 

“You know what type of plan you have.” And even if the plaintiff accurately 
23

alleged that he did not possess his mobile data contract, he and his counsel 

should have known what type of data plan that the plaintiff had simply by 

confirming, through his own billing statements, whether he was an unlimited 

data plan customer, before alleging that in his corrected amended complaint.

In any event, upon the defendant’s service of its section 57.105 motion 

and its manager’s sworn declaration attesting that none of the plaintiff’s four 

data plans had been unlimited data plans, the plaintiff and his counsel had 

one final opportunity to confirm whether the plaintiff, at any point, had 

contracted for an unlimited data plan. If the plaintiff never had an unlimited 

data plan, then he and his counsel could have voluntarily dismissed the

action within the twenty-one day safe harbor period without becoming 

subject to monetary sanctions. The plaintiff and his counsel did not do so. 

See HFC Collection Ctr., Inc. v. Alexander, 190 So. 3d 1114, 1119 (Fla. 5th 

DCA 2016) (“The primary purpose of the safe harbor [notice] is to provide 

the party in receipt of the [notice] with the opportunity to withdraw or abandon 

a frivolous claim before sanctions are sought.”).

We also conclude that the plaintiff’s counsel should not be excused 

from the imposition of section 57.105(1)(a) monetary sanctions under section 

57.105(3)(b), providing: “Notwithstanding subsections (1) and (2), monetary 

sanctions may not be awarded ... [u]nder paragraph (1)(a) ... against the 
24

losing party's attorney if he or she has acted in good faith, based on the 

representations of his or her client as to the existence of those material 

facts.” (emphases added). As stated above, the plaintiff’s counsel should 

have and could have confirmed whether the plaintiff had an unlimited data 

plan before alleging that in the corrected amended complaint. Similarly, 

upon the defendant’s service of its section 57.105 motion and its manager’s 

sworn declaration attesting that none of the plaintiff’s four data plans had 

been unlimited data plans, the plaintiff’s counsel should have confirmed 

whether the plaintiff had contracted for an unlimited data plan, or else 

voluntarily dismissed the action within the twenty-one day safe harbor period. 

Lastly, the plaintiff’s counsel cannot fall back on his argument that he could 

have amended the complaint to allege the defendant had committed data 

throttling under the plaintiff’s tiered data plans. The plaintiff’s counsel never 

sought leave to amend the operative complaint to make this necessary 

correction, and thus never subjected that argument to the defendant’s 

opposition or the county court’s scrutiny.

For these reasons, the plaintiff’s counsel is equally subject to section 

57.105(1)(a) monetary sanctions. See Yang Enters., Inc. v. Georgalis, 988 

So. 2d 1180, 1185 (Fla. 1st DCA 2008) (“To avoid liability, counsel must 
25

make an objectively reasonable investigation of the purported facts 

supporting a claim.”).

Conclusion

Based on the foregoing, we reverse the county court’s two duplicative 

orders denying the defendant’s “[Section] 57.105 Sanctions Motion for 

Raising a Baseless ‘Data Throttling’ Claim.” We remand for the county court 

to enter a single order granting that motion, and to set an evidentiary hearing 

to determine the amount of reasonable attorney's fees, including 

prejudgment interest, to be paid to the defendant in equal amounts by the 

plaintiff and the plaintiff’s counsel, incurred in the defense of the plaintiff’s 

data throttling claim from the date of service of the statement of claim upon 

the defendant through the filing date of the defendant’s notice of appeal.

As stated above, we affirm, without further discussion, the county 

court’s order denying the defendant’s “[Section] 57.105 Sanctions Motion for 

Raising a Legally Deficient ‘Administrative Fee’ Claim.”

Affirmed in part, reversed in part, and remanded with directions.

DAMOORGIAN, Associate Judge, concurs.

ARTAU, Associate Judge, concurs in part and dissents in part with an 

opinion.
26

ARTAU, Associate Judge, concurring in part and dissenting in part.

Zero. That is the amount of evidence introduced at the evidentiary 

hearing held on AT&T’s motion for sanctions pursuant to section 

57.105(1)(a), Florida Statutes (2019). Thus, I dissent from the majority’s 

reversal of the trial court’s denial of AT&T’s motion for sanctions.

The Third District and its sister courts have consistently reversed 

awards of section 57.105 sanctions when neither the sworn declarations or 

affidavits, nor other proof, were introduced into evidence at the evidentiary 

hearing conducted on the sanctions motion. See, e.g., Glob. Xtreme, Inc. v. 

Advanced Aircraft Ctr., Inc., 122 So. 3d 487, 491 (Fla. 3d DCA 2013) 

(“[U]nsworn representations by counsel about factual matters do not have 

any evidentiary weight in the absence of a stipulation.” (quoting Daughtrey 

v. Daughtrey, 944 So. 2d 1145, 1148 (Fla. 2d DCA 2006)); see also, e.g.,

Pansky v. Pansky, 259 So. 3d 872, 873 (Fla. 4th DCA 2018) (reversing 

section 57.105 fee award on grounds that it was not supported by competent 

evidence because it was “based exclusively on argument of counsel” and 

records previously provided by counsel in support of the requested fee award 

were not “admitted into evidence” at the hearing on the motion); Morton v. 

Heathcock, 913 So. 2d 662, 669-70 (Fla. 3d DCA 2005) (reversing section 
27

57.105 fee award because attorney “affidavits” were not “authenticated or 

introduced into evidence” at the hearing on the motion for sanctions). 

A trial court’s “finding that a party is entitled to recover attorney’s fees 

under section 57.105 must be based upon substantial, competent evidence 

presented at the hearing” on the motion for sanctions. Swan Landing Dev., 

LLC v. First Tenn. Bank Nat’l Ass’n., 97 So. 3d 326, 328 (Fla. 2d DCA 2012) 

(quoting Mason v. Highlands Cnty. Bd. of Cnty. Comm’rs, 817 So. 2d 922, 

923 (Fla. 2d DCA 2002)); see also, e.g., Morton, 913 So. 2d at 669-70. 

Furthermore, “[i]t is well settled that affidavits are not admissible to prove 

facts in issue at an evidentiary hearing because they are not subject to crossexamination and because they impermissibly shift the burden of proof to the 

other party.” Fortune v. Fortune, 61 So. 3d 441, 445 (Fla. 2d DCA 2011).

Here, the facts set forth in the sworn declaration attached to the motion 

for sanctions under section 57.105 were never stipulated to nor was the 

declaration itself introduced into evidence at the evidentiary hearing held on 

the sanctions motion. Instead of presenting evidence at the hearing, AT&T 

chose to rely solely on its counsel’s argument. Indeed, the only evidence 

AT&T submitted during the evidentiary hearing was the testimony of its 

attorney to support its unrelated motion to tax costs based on its status as 

the prevailing party. 
28

In response to AT&T’s contention that the lawsuit was frivolous, the 

plaintiff’s counsel argued: “It’s clearly not frivolous. And my point is they 

have to prove that this claim was frivolous. They have not proven it, period.” 

I agree.

Not only did AT&T fail to introduce competent, substantial evidence at 

the hearing on the motion in support of its claim that the plaintiff’s “data 

throttling” claim was based on a materially false statement of fact entitling it 

to section 57.105 fees as a sanction, it failed to introduce any evidence at 

all. Nonetheless, the majority quotes extensively from the arguments the 

parties’ counsel made at the hearing on the motion for sanctions in support 

of its conclusion that AT&T met its burden of proving entitlement to 57.105 

sanctions.

“Argument of counsel, however, is not evidence.” Blanco v. State, 7 

So. 2d 333, 337 (Fla. 1942); see also, e.g., Stading v. Equilease Corp., 471 

So. 2d 1379, 1379 (Fla. 4th DCA 1985) (“The hearing consisted solely of the 

arguments of opposing counsel, which is, of course, not evidence.”). Thus, 

AT&T did not satisfy its burden to prove it was entitled to sanctions. See 

Glob. Xtreme, Inc., 122 So. 3d at 491 (“[I]n light of the absence of an 

evidentiary hearing or the presentation of sworn testimony on the issue, we 
29

conclude that the trial court was without discretion to [award section 57.105 

sanctions.]”).

As the Fourth District explained long ago:

[T]he practice we wish to see terminated is that of attorneys 

making unsworn statements of fact at hearings which trial courts 

may consider as establishing facts. It is essential that attorneys 

conduct themselves as officers of the court; but their unsworn 

statements do not establish facts in the absence of stipulation. 

Trial judges cannot rely upon these unsworn statements as the 

basis for making factual determinations; and this court cannot so 

consider them on review of the record. If the advocate wishes to 

establish a fact, he must provide sworn testimony through 

witnesses other than himself or a stipulation to which his 

opponent agrees.

Leon Shaffer Golnick Advert., Inc. v. Cedar, 423 So. 2d 1015, 1016-17 (Fla. 

4th DCA 1982) (emphasis added).

Contrary to our well-established precedent, the majority shifts the 

burden of proof to the plaintiff by concluding that he somehow waived any 

need for AT&T to meet its burden of proving by substantial, competent 

evidence that it was entitled to sanctions. Cf. Mason, 817 So. 2d at 923

(reversing an award of sanctions under section 57.105 because “no 

substantial, competent evidence in support of the motion for fees was 

presented to the trial court” by the moving party at the hearing on the 

sanctions motion). 
30

Furthermore, the majority’s waiver position is contrary to the plain 

language of Florida Rule of Civil Procedure 1.530(e), which provides that 

“[w]hen an action has been tried by the court without a jury, the sufficiency 

of the evidence to support the judgment may be raised on appeal whether or 

not the party raising the question has made any objection thereto in the trial 

court or made a motion for rehearing, for new trial, or to alter or amend the 

judgment.” Fla. R. Civ. P. 1.530(e) (emphasis added). 

Lastly, the majority’s waiver position is contrary to the “tipsy coachman”

rule because the trial court correctly denied AT&T’s motion for section 57.105 

sanctions, albeit for the wrong reason, when AT&T failed to meet its burden 

of proof at the evidentiary hearing on its motion. See, e.g., Dade Cnty. Sch. 

Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999) (“[I]f a trial court 

reaches the right result, but for the wrong reasons, it will be upheld if there 

is any basis which would support the judgment in the record.”); Home Depot 

U.S.A. Co. v. Taylor, 676 So. 2d 479, 480 (Fla. 4th DCA 1996) (explaining 

that when a trial judge makes “the right decision, albeit for the wrong reason” 

it will be upheld pursuant to the “tipsy coachman” rule adopted by our 

supreme court in Carraway v. Armour & Co., 156 So. 2d 494, 497 (Fla. 

1963)).
31

Therefore, while I concur with the majority’s affirmance of the trial 

court’s order denying the defendant’s sanctions motion on the administrative 

fee claim, I respectfully dissent because AT&T failed to carry its burden of 

proof at the evidentiary hearing on the sanctions motion and cannot shift its 

burden to the party it is seeking to sanction. 

* * *

Not final until disposition of timely filed motion for rehearing.