HARVEY LEE DAVIS and ERIC MCCABE v. KENNETH I. BAILYNSON

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-CA-
009072-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
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,”
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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
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[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 then-
existing law to those material facts.
....
(3) Notwithstanding subsections (1) and (2), monetary
sanctions may not be awarded:
....
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(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.”).
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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):
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[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).
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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
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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.
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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.
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