Bank of America, N.A. v. Hamdija Turkanovic , 2016 Fla. App. LEXIS 17766 ( 2016 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
BANK OF AMERICA, N.A., NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Petitioner, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D16-3416
HAMDIJA TURKANOVIC,
Respondent.
___________________________/
Opinion filed December 1, 2016.
Petition for Writ of Prohibition.
Jason F. Joseph of Gladstone Law Group, P.A., Boca Raton, for Petitioner.
James C. Cumbie of Cumbie Law Firm P.A., Jacksonville, for Respondent.
PER CURIAM.
Petitioner, Bank of America, N.A. (BOA), seeks a writ of prohibition to prevent
the trial court from compelling the deposition of its corporate representative in
furtherance of Respondent’s motion seeking an award of attorney’s fees as a sanction
against BOA for filing this allegedly frivolous foreclosure case. We agree with BOA
that the trial court lacks jurisdiction to impose the sanction sought by Respondent
because BOA voluntarily dismissed this case within the safe harbor period in section
57.105(4), Florida Statutes, and before Respondent filed his motion for sanctions. See
Pino v. Bank of New York, 121 So. 3d 23, 42 (Fla. 2013); Pomeranz & Landsman
Corp. v. Miami Marlins Baseball Club, L.P., 143 So. 3d 1182, 1183 (Fla. 4th DCA
2014). Respondent cannot avoid this jurisdictional bar by filing the motion under
Florida Rule of Civil Procedure 1.525 and basing the request for sanctions on “the
inherent power of the Court” rather than section 57.105(1). See Hall v. Lopez, 41 Fla.
L. Weekly D1763, n. 1 (Fla. 1st DCA July 28, 2016) (noting that “a trial court has a
limited inherent authority to assess attorney’s fees against an attorney or party for bad
faith conduct, but ‘if a specific statute or rule applies, the trial court should rely on the
applicable rule or statute rather than on inherent authority.’” (quoting Moakley v.
Smallwood, 826 So. 2d 221, 224-27 (Fla. 2002)).
Accordingly, BOA’s petition for writ of prohibition is GRANTED.
B.L. THOMAS, WETHERELL, and M.K. THOMAS, JJ., CONCUR.
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