       Third District Court of Appeal
                               State of Florida

                        Opinion filed November 30, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-1283
                          Lower Tribunal No. 12-9367
                             ________________


             Jarrette Bay Investments Corporation, et al.,
                                   Appellants,

                                        vs.

             BankUnited, N.A. and Orlando Benitez, Jr.,
                                    Appellees.


     An Appeal from the Circuit Court for Miami-Dade County, Eric William
Hendon, Judge.

     Julio C. Marrero & Associates, P.A., and Julio C. Marrero, for appellants.

     Shutts & Bowen LLP, and Stephen T. Maher, Harold E. Patricoff, Douglas
M. Kramer and Jose A. Ceide, for appellee BankUnited, N.A.

Before ROTHENBERG, LOGUE and SCALES, JJ.

     On Appellee’s Motion for Appellate Attorney’s Fees

     SCALES, J.
      Appellee, defendant below, BankUnited, N.A., seeks to recover appellate

attorney’s fees as a sanction against appellants, plaintiffs below, Jarrette Bay

Investments Corp. and Julio Marrero. We deny BankUnited’s motion because

neither BankUnited’s motion, nor the record, reveals compliance with the

requirements of rule 9.410(b) of the Florida Rules of Appellate Procedure.

      I. Procedural History

      The relevant facts and procedural history are not in dispute. After Plaintiffs

served their multi-count complaint on BankUnited, BankUnited served Plaintiffs,

pursuant to section 57.105(4) of the Florida Statutes, with a motion asserting that

Plaintiffs’ claims against BankUnited were frivolous. As required by the statute,

BankUnited’s motion was not filed, but the motion notified plaintiffs that

BankUnited would file the motion and seek attorney’s fees against Plaintiffs unless

Plaintiffs withdrew their claims within the statute’s twenty-one day “safe harbor”

period. Rather than withdrawing their claims, Plaintiffs filed an amended

complaint against BankUnited. After answering Plaintiffs’ amended complaint,

BankUnited filed a motion for judgment on the pleadings, asserting that Plaintiffs

had failed to maintain a cognizable claim against BankUnited.

      Ultimately, the trial court entered a final judgment on the pleadings in favor

of BankUnited (the judgment on appeal that we have affirmed in case number

3D15-1283). BankUnited then filed its previously served 57.105 motion. During



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the pendency of Plaintiffs’ appeal, the trial court entered an order granting

BankUnited entitlement to fees pursuant to section 57.105. In that order, the trial

court determined that “Plaintiffs and their attorney knew or should have known

that their claims against BANKUNITED, at the time of filing and throughout the

proceedings in this cause, were not supported by the material facts necessary to

establish the claims and would not be supported by the application of then-existing

law [sic] those material facts.”

      During the pendency of this appeal, BankUnited filed a motion with this

Court, “pursuant to Rules 9.300 and 9.400(b), Florida Rules of Appellate

Procedure” and “Sections 57.105 and 59.46, Florida Statutes.” BankUnited’s

motion seeks appellate level fees for what BankUnited characterizes as an appeal

taken from a frivolous trial court action.

      II. Analysis

      BankUnited argues that, because the trial court determined that BankUnited

was entitled to fees as a sanction pursuant to section 57.105, this Court must also

award BankUnited entitlement to appellate fees, pursuant to sections 57.105 and

59.46. Section 59.46 reads, in relevant part, as follows:

      Attorney’s fees. – In the absence of an expressed contrary intent, any
      provision of a statute . . . providing for the payment of attorney’s fees
      to the prevailing party shall be construed to include the payment of
      attorney’s fees to the prevailing party on appeal.




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      Essentially, BankUnited suggests that section 57.105 is a prevailing party

fee statute as contemplated in section 59.46, and therefore, BankUnited is entitled

to appellate fees simply because BankUnited prevailed on the appeal. In support,

BankUnited cites two cases in which appellate courts awarded fees as a sanction

pursuant to section 57.105: Freedom Commerce Centre Venture v. Ranson, 823

So. 2d 817 (Fla. 1st DCA 2002) and Eastern Industries, Inc. v. Florida

Unemployment Appeals Commission, 960 So. 2d 900 (Fla. 1st DCA 2007).

      We note, though, that both of these cases pre-date the Florida Supreme

Court’s 2010 amendment of rule 9.410, which added the rule’s subsection (b)

expressly “. . . to make rule 9.410 consistent with section 57.105, Florida Statutes

(2009).” Comm. Notes, Fla. R. App. P. 9.410. Prior to this amendment, the rule

provided a procedure for the appellate court only, on its own motion, to impose

sanctions. Fla. R. App. P. 9.410 (2009). The Court’s 2010 amendment, however,

specifically implemented section 57.105’s “safe harbor” provision, and established

the detailed procedural mechanism for parties seeking to impose sanctions against

opposing parties in appellate proceedings pursuant to section 57.105. See, e.g.,

Reznek v. Chase Home Fin., LLC, 152 So. 3d 793 (Fla. 3d DCA 2014).

      BankUnited identifies section 57.105 as the exclusive, substantive basis for

entitlement to appellate fees; yet, in its motion, rather than citing to rule 9.410(b),

BankUnited cites to rule 9.300 (the general appellate rule related to motions) and



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rule 9.400(b) (the general rule regarding motions for appellate attorney’s fees) as

the procedural basis for its fee entitlement.

      According to the plain language of rule 9.410(b), parties seeking appellate

fees as a sanction pursuant to section 57.105 are required to proceed pursuant to

rule 9.410(b), not rule 9.400(b). Indeed, the prefatory clause of rule 9.400(b) – the

procedural rule governing fees with a basis other than section 57.105 – expressly

makes the rule inapplicable to motions proceeding under rule 9.410(b).

      Among other things, rule 9.410(b) requires that, prior to filing the motion,

an appellate movant seeking to recover fees pursuant to 57.105 must serve the

motion on the opposing party no later than “the time for serving any permitted

response to the challenged paper.” Fla. R. App. P. 9.410(b)(3). The opposing party

then has twenty-one days to withdraw or correct the challenged paper, prior to the

motion being filed. Fla. R. App. P. 9.410(b)(4).

      In this case, nothing in the appellate record indicates, and BankUnited does

not allege, that BankUnited served its sanctions motion on Plaintiffs within thirty

days of the filing of the Plaintiffs’ Initial Brief, so as to give Plaintiffs an

opportunity to dismiss their appeal, as required by rule 9.410(b).1

1 Rule 9.140(b)(4) requires the moving party to execute a specific certificate of
service, confirming that the motion has been served at least twenty-one days prior
to filing the motion for attorney’s fees, in order to allow the opposing party to
withdraw the offending paper. BankUnited’s motion did not contain the required
certificate of service.


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        In fact, BankUnited’s motion argues that, because the lower court found

entitlement to fees under 57.105, rule 9.410(b)’s “safe harbor” requirement is not

applicable. We disagree. Statutes providing for the recovery of attorney’s fees are

in derogation of the common law, and therefore, movants seeking recovery of fees

pursuant to such statutes, and those procedural rules implementing them, must

strictly comply with the requirements outlined therein. Reznek, 152 So. 3d at 795.

               III. Conclusion

        Because BankUnited seeks appellate fees as a sanction pursuant to section

57.105, yet has not complied with the requirements of rule 9.410(b), we deny

BankUnited’s motion.2




2   We express no opinion as to the merits of BankUnited’s motion.

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