       Third District Court of Appeal
                               State of Florida

                            Opinion filed July 22, 2015.
         Not final until disposition of timely filed motion for rehearing.
                               ________________

                               No. 3D14-1592
                          Lower Tribunal No. 14-1007
                             ________________


                      Aspen Air Conditioning, Inc.,
                                    Appellant,

                                        vs.

            Safeco Insurance Company of America, et al.,
                                    Appellees.


     An Appeal from the Circuit Court for Miami-Dade County, Daryl E.
Trawick, Judge.

      Lynne S. K. Ventry (Delray Beach); Clifford A. Wolff (Fort Lauderdale),
for appellant.

     Mills Paskert Divers and Alberta Adams Campbell and Matthew G. Davis
(Tampa), for appellee Safeco Insurance Company of America.

Before WELLS, ROTHENBERG, and LAGOA, JJ.

                   ON MOTION FOR ATTORNEY’S FEES

     LAGOA, J.

     Pursuant to Florida Rule of Appellate Procedure 9.410 and section

57.105(1), Florida Statutes (2014), Appellee, Safeco Insurance Company of
America (“Safeco”), seeks an award of        attorney’s fees—incurred defending

against allegedly baseless assertions contained in the Appellant’s Initial Brief—as

a sanction against Appellant, Aspen Air Conditioning, Inc. (“Aspen”), and its

counsel, Lynne S.K. Ventry, Esq. (“Ventry”) and Clifford A. Wolff, Esq.

(“Wolff”). Because we find that Aspen’s allegations are without a good faith

basis, sanctions against Aspen and its counsel are warranted under both section

57.105 and Rule 9.410.

I.    FACTUAL AND PROCEDURAL HISTORY

      This appeal arises from a construction project of a nursing and rehabilitation

center in Coral Gables (the “Project”).      DooleyMack Constructors of South

Florida, LLC (“DooleyMack”), was the general contractor for the Project. The

Project’s owner and developer was Victoria Management, LLC (“Victoria”). On

November 13, 2007, Safeco issued payment and performance bonds naming

DooleyMack as principal and Victoria as an obligee.

      On May 22, 2009, DooleyMack entered into a subcontract with Aspen (the

“Subcontract”) to construct and install the HVAC components for the Project. At

the conclusion of Aspen’s work, Aspen was owed a balance on the Subcontract.

On January 23, 2012, Aspen served DooleyMack and Safeco with its notice of

bond claim in accordance with the terms of the Subcontract and payment bond.

      Safeco filed suit against Aspen on June 22, 2012, in the United States

District Court for the Southern District of Florida (the “Federal Litigation”).

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Safeco sought, inter alia, indemnity for any claims arising out of the Department

of Labor’s (“DOL”) assessments against Aspen and its subcontractors for alleged

wage violations. Aspen brought a counterclaim, asserting a claim on the payment

bond, as well as a third-party complaint against DooleyMack. Safeco, Aspen, and

DooleyMack thereafter entered into a Tolling Agreement in which Safeco agreed

to dismiss the Federal Litigation without prejudice, and the parties agreed that the

statute of limitations for any claims arising out of the Subcontract, the bond, and/or

the Project would be tolled until October 1, 2013.         The parties subsequently

executed an Agreement Extending Tolling Agreement and a Second Agreement

Extending Tolling Agreement (the “Tolling Agreement”) to extend the deadline

through January 15, 2014. The Tolling Agreement contains a forum selection

clause providing:

             5) The Parties further agree that should any further
             litigation be filed by Aspen against DooleyMack, and/or
             Safeco or by DooleyMack and/or Safeco against Aspen,
             arising out of or related to the Subcontract, the Bond or
             the Project, said litigation shall be filed in the United
             States District Court for the Southern District of Florida.

      On January 14, 2014, Aspen filed suit against Safeco and DooleyMack in

the Circuit Court for Miami-Dade County, alleging that Safeco and DooleyMack

breached the bond and Subcontract in failing to pay Aspen for its work. Safeco

moved to dismiss Aspen’s Complaint, and later its Amended Complaint for

improper venue. In response, Aspen contended that venue was proper in state

court due to an already existing case in
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the Circuit Court for Miami-Dade County regarding the Project (the “Parallel

Action”).   In the Parallel Action, Victoria had filed suit against Safeco and

DooleyMack in October 2013 for alleged Project construction defects. Victoria,

however, did not name Aspen as a defendant, nor did Aspen attempt to intervene.

      On May 27, 2014, the trial court held a hearing on Safeco’s Motion to

Dismiss Aspen’s Amended Complaint for improper venue based on the forum

selection clause in the parties’ Tolling Agreement. On June 1, 2014, the trial court

entered an order dismissing Aspen’s Amended Complaint, finding that the forum

selection clause required Aspen to file the action in federal court. Aspen filed its

notice of appeal on June 30, 2014, and on February 18, 2015, we affirmed the trial

court’s dismissal of Aspen’s Amended Complaint. Aspen Air Conditioning, Inc.

v. Safeco Ins. Co. of Am., No. 3D14-1592, 2015 WL 691642 (Fla. 3d DCA Feb.

18, 2015) (table).

      In Section III of its Initial Brief, Aspen asserted that Safeco’s counsel made

misleading statements to the trial court at the hearing on the Motion to Dismiss.1

Specifically, Aspen alleged that the statements of Safeco’s counsel, Alberta

Campbell (“Campbell”), misled the trial court about the substance and status of the

“Parallel Action.”2 According to Aspen, Campbell downplayed the HVAC defects

1 Prior to filing its Initial Brief, Aspen made a similar argument before this Court in
its Motion to Relinquish Jurisdiction, which this Court denied. In its Opposition to
Aspen’s Motion to Relinquish Jurisdiction, Safeco provided documentary evidence
illustrating that each of the statements made by Safeco’s counsel were, in fact,
supported by then-existing communications and documents.

                                          4
at issue in the Parallel Action, misrepresented to the trial court that the Parallel

Action was close to resolution, and mischaracterized Aspen’s involvement in the

issues raised in the Parallel Action. The relevant statements made by Safeco’s

counsel, Campbell, at the hearing on the Motion to Dismiss are as follows:

      THE COURT:          Let me ask this. This case that was filed in state
      court, Victoria Management, LLC v. Safeco Insurance, et al., what’s
      the subject matter of that case?

      MS. CAMPBELL: Sure. That case involves two different issues. The
      largest is the flooring.          What they’re alleging is really the
      bathrooms—they’re alleging that the shower pan liners that were put
      in these ADA showers—so if you can imagine, it’s one of those big,
      open bathrooms, like you’d see in a hospital. This is a fully staffed—
      full-time nursing facility for elderly people.
              You roll the wheelchair in, and you’ve got the toilet right there .
      . . . That has nothing to do with Aspen. That has to do with Aspen’s
      work. That’s another two other contractors called Flooring World and
      Everlast, who are parties to that suit with Victoria Management.
              Victoria had alleged in that lawsuit a small issue with the
      HVAC, that there were negative pressure issues throughout the
      building, but they had not complied with the 558 process—that’s
2 Specifically, in Section III of its Initial Brief, Aspen argued:

              At the May 27, 2014 hearing on SAFECO’s Motion to Dismiss,
      counsel for SAFECO made misleading statements about the status and
      substance of the Parallel Action, to induce the trial court to grant its
      motion. As noted in the proposed Motion to Vacate attached to
      ASPEN’s Motion to Relinquish Jurisdiction, SAFECO’s attorney
      advised the trial court that the HVAC defects alleged in the Parallel
      Action were minor, and further claimed that the entire case was close
      to resolution . . . .
              The statements made by SAFECO’s attorney may have been
      motivated by zealous advocacy, but they were also false when made.
      SAFECO’s counsel knew or should have known that the statements
      would be misleading. The trial court was left with an incorrect
      impression regarding the significance of ASPEN’s work in the
      Parallel Action, and the commonality of both facts and issues in the
      two cases.

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         provided under the Florida Statutes—which says, [b]efore you can run
         out as an owner and sue the contractor and the surety for a
         construction defect, you have to give us a chance to investigate and
         try to fix it.
                 And so we argued to the judge there that they had to do that,
         and the judge agreed with us. And so all the portion of that case that
         relates to Aspen’s work has been stayed, and we’re going through the
         558 process. We agreed with Victoria to hire an independent guy to
         go out and test the system that Aspen had installed.
                 And that the process has been completed, and he thinks that it
         can be fixed by doing an adjustment of the controls—I’m probably
         telling you more than you want to know—but we’ve sent an offer to
         Victoria to pay for that, and I’m supposed to get a response back from
         them this week.
                 If I’m able to work that out with Victoria, there will be no issue
         in that lawsuit that involves Aspen whatsoever.

         THE COURT:          Okay.

         After complying with the relevant safe harbor requirements of section

57.105 and Rule 9.140, on December 18, 2014, Safeco filed a Motion for

Sanctions with our Court after Aspen declined to withdraw Section III of its Initial

Brief.

         On March 23, 2015, Aspen filed its response to Safeco’s Motion for

Sanctions, arguing that sanctions are not appropriate when a party’s actions have a

good faith basis and that it “merely pointed out in good faith” Aspen’s claim

regarding Campbell’s arguments to the trial court, and that Aspen’s “arguments are

supported by the facts.”        For the reasons discussed below, we find Aspen’s

arguments without merit.




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II.      ANALYSIS

         Section 57.105(1)(b) provides for sanctions when the application of then-

existing law to material facts does not support a claim or defense,3 and Rule

9.410(a), (b)(1), provides for sanctions for the filing of any brief that is deemed to

be frivolous.4 On appeal, both section 57.105 and Rule 9.410 provide a basis for

3   Section 57.105(1) 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.
4   Rule 9.410(a), (b)(1), provides:

         (a) Court’s Motion. After 10 days' notice, on its own motion, the
         court may impose sanctions for any violation of these rules, or for the
         filing of any proceeding, motion, brief, or other paper that is frivolous
         or in bad faith. Such sanctions may include reprimand, contempt,
         striking of briefs or pleadings, dismissal of proceedings, costs,
         attorneys' fees, or other sanctions.
         (b) Motion by a Party.
         (1) Applicability.      Any contrary requirements in these rules
         notwithstanding, the following procedures apply to a party seeking an
         award of attorneys' fees as a sanction against another party or its
                                              7
attorney’s fees as a sanction. See, e.g., Visoly v. Sec. Pac. Credit Corp., 768 So.

2d 482, 490 (Fla. 3d DCA 2000) (“In Florida, appellate attorney’s fees may be

assessed against a party and their counsel for filing a frivolous appeal pursuant to

[section 57.105] and [Rule 9.410].”). As we previously stated,

               An appeal is defined as frivolous if it presents no justiciable
      question and is so devoid of merit on the face of the record that there
      is little prospect it will ever succeed.
               We recognize that to some extent, the definition of “frivolous”
      is incapable of precise determination. Nevertheless, a review of
      Florida caselaw reveals there are established guidelines for
      determining when an action is frivolous. These include where a case is
      found: (a) to be completely without merit in law and cannot be
      supported by a reasonable argument for an extension, modification or
      reversal of existing law; (b) to be contradicted by overwhelming
      evidence; (c) as having been undertaken primarily to delay or prolong
      the resolution of the litigation, or to harass or maliciously injure
      another; or [(d)] as asserting material factual statements that are false.

Id. at 490-91 (citations and footnote omitted). Because we conclude that Section

III of Aspen’s Initial Brief is frivolous when analyzed under these established

guidelines, we impose attorney’s fees as sanctions. Cf. Morton v. Heathcock, 913

So. 2d 662, 668 (Fla. 3d DCA 2005) (“It has long been recognized that use of the

word ‘shall’ in section 57.105, ‘evidences the legislative intention to impose a

mandatory penalty in the form of a reasonable attorney's fee . . . .’” (quoting

Wright v. Acierno, 437 So. 2d 242, 244 (Fla. 5th DCA 1983))).

      Here, Campbell’s statements to the trial court were supported by

documentation and correspondence between the parties in the Parallel Action, and


      counsel pursuant to general law.
                                          8
both Safeco’s Opposition to Aspen’s Motion to Relinquish Jurisdiction and its

Motion for Attorney’s Fees contained documents establishing the veracity of

Campbell’s statements regarding the Parallel Action with Victoria.              These

documents, therefore, establish that Aspen’s claims in Section III of its Initial Brief

were without factual or legal support.5

      Significantly, in a letter dated September 15, 2014, Safeco informed Aspen’s

counsel of the baseless accusations before Aspen filed its Motion to Relinquish

Jurisdiction.6 At the least, Aspen’s counsel knew or should have known from the

documents Safeco attached to its Opposition to Aspen’s Motion to Relinquish

Jurisdiction that Aspen did not have a factual basis for its misrepresentation claims

made in its Initial Brief. Yet, Aspen and its counsel subsequently decided to

include the false allegations made in Section III despite the documents establishing

that the allegations were baseless. The unambiguous terms of both Rule 9.410 and

section 57.105 are in place to protect Safeco and its attorneys from such action.


5 For example, correspondence exchanged between Safeco and Victoria reveal that
Victoria accepted—subject to certain provisions—Safeco’s offer to have the
building’s HVAC system tested and potentially balanced, if needed. Thus, in
direct contradiction to Aspen’s assertions in its Initial Brief, Safeco’s counsel
could not have known at the time of the hearing on its Motion to Dismiss that
Victoria would later reject the offer to balance the HVAC system. Similarly, the
correspondence between Campbell and Victoria establish that Campbell’s
statements made at the hearing on the status of negotiations between Safeco and
Victoria were completely accurate based on the information Safeco and Campbell
had at the time.
6Prior to filing its Motion to Relinquish Jurisdiction in this Court, Aspen sent a
copy of the motion to Safeco for review.
                                         9
See Martin Cnty. Conservation Alliance v. Martin Cnty., 73 So. 3d 856, 858-59

(Fla. 1st DCA 2011).

       Moreover, we find Aspen’s assertion that it made the statements in good

faith to be without merit, as Aspen relies primarily on documents exchanged with

Safeco and Campbell dated after the hearing on Safeco’s Motion to Dismiss in

making this argument. These documents were not in existence at the time of the

hearing, and our review is limited to the record made before the trial court.

Konoski v. Shekarkhar, 146 So. 3d 89, 90 (Fla. 3d DCA 2014); Altchiler v. State,

Dep’t of Prof’l Regulation, 442 So. 2d 349, 350 (Fla. 1st DCA 1983).

Accordingly, we are compelled to grant Safeco’s Motion for Attorney’s Fees as a

sanction against Aspen and its counsel.

III.   CONCLUSION

       Because we conclude that Safeco’s counsel did not make any

misrepresentation to the trial court but accurately relayed the facts and status of the

Parallel Action involving Victoria that she knew at the time of the hearing on

Safeco’s Motion to Dismiss, we find that Section III of Aspen’s Initial Brief is

wholly without factual or legal basis.         Accordingly, we award a reasonable

attorney’s fee, including pre-judgment interest, to be paid to Safeco in accordance

with section 57.105(1) and Rule 9.410, and remand to the trial court.

       Motion granted; remanded with instructions.



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