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Attorney’s Fees Awardable in Repeat Violence Cases

In a case that could have a chilling effect on the filing of temporary injunctions brought by persons who are victims of  dating, repeat, and sexual violence, the Florida Supreme Court ruled earlier this week that attorney’s fees are awardable in these type of cases. Ordinarily a party may only recover attorney’s fees from the other side if there’s a contract or a statute that provides for fees to the prevailing party. But Section 57.105, Florida Statutes, provides for attorney’s fees when the trial court is satisfied that a party in a civil case has brought a claim or defense that is frivolous.

In the Lopez v. Hall case decided this week the Court found that the alleged victim’s boyfriend (Hall) was entitled to attorney’s fees under 57.105 where the victim (Lopez) requested an extension of the temporary injunction but later voluntarily dismissed her case against him. Hall moved for attorney’s fees under 57.105 and claimed that Ms. Lopez perjured herself in both her initial petition to obtain the injunction and in her second petition to extend the injunction.

The Court made short work of  what is known as the “safe harbor” provision of 57.105 which Lopez argued barred Hall’s motion for attorney’s fees. That provision requires the party moving for attorney’s fees under 57.105 to wait 21 days before filing the Motion for Attorney’s Fees after first demanding the other party dismiss or withdraw the frivolous claim or defense.  The 21-day provision was relevant in the case because under the dating, repeat violence, or sexual violence statute (F.S. 784.046)  a petitioner is – under most cases –  entitled to an immediate ex parte temporary injunction upon submission of a sworn petition. The initial temporary injunction is effective for 15 days and requires a full hearing on a date “no later than the date the temporary injunction ceases to be effective” unless good cause is shown.

Because of this 15-day statutory timeline it would be impossible for a party claiming the petition for temporary injunction is frivolous to send the “safe-harbor” letter. The safe-harbor provision was not applicable in this case, however, because the Court found that Hall didn’t file his motion for attorney’s fees under until Ms. Lopez filed to extend the temporary injunction. The hearing on the motion to extend the temporary injunction apparently did not occur until more than 21 days after Hall first put Ms. Lopez on notice that he believed her petition to extend the injunction was frivolous. Thus, Hall’s motion for fees under 57.105 was timely.

In a dissenting opinion, Justice Barbara Pariente argued that Florida’s legislature didn’t intend for F.S. 57.105 to apply in dating, repeat violence, and sexual violence cases because the plain language of F.S. 784.046, which governs these types of cases, shows that these are more akin to criminal proceedings not “civil” actions. But 57.105 applies only to “civil” actions. Justice Pariente also warned, as alluded to above, that allowing an alleged abuser to claim attorney’s fees from the victim will cause victims to think twice before filing a petition for dating, repeat, and sexual violence.