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The post below was published on Thursday, October 7th, 2010 at 12:15 PM.

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Second District: Sua Sponte Fee Orders

We know a trial court can enter a fee order under section 57.105(1) on its own motion, and we know that the statute’s 21-day notice provision is inapplicable when a court does so. Now suppose the party to be awarded fees has filed a fee motion but it failed to comply with applicable procedural requirements. Is the trial court precluded from awarding fees on its own motion?

A few years ago, in this case, the Third District answered that question in the affirmative. The court reversed a fee award, holding that the trial court had effectively, and improperly, adopted the party’s untimely motion as its own. In the district court’s words, “It would frustrate the legislative intent to avoid the twenty-one-day notice by allowing the court to adopt the party-filed motion as the court’s own.”

Now, the Second District has released this decision. A divided court affirmed an order granting the appellee fees under somewhat similar but not identical circumstances. The majority opinion distinguished the case from the Third District’s earlier decision. The dissent found the majority’s distinctions unpersuasive.

At their core, these cases seem to present an interesting question: does a trial court lose its authority to enter an attorney’s fees sanction under section 57.105 when the party that would receive the fee award has filed a procedurally deficient fee motion?

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