Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-426 _____________________________ GILLIGAN, GOODING, BATSEL & ANDERSON, P.A. f/k/a Gilligan, Gooding, Franjola & Batsel, P.A., and GEORGE FRANJOLA, Appellants, v. CONDOR AERIAL, LLC, Appellee. _____________________________ On appeal from the Circuit Court for Alachua County. Monica J. Brasington, Judge. January 29, 2021 PER CURIAM. George Franjola and his law firm, Gilligan, Gooding, Bastel & Anderson, P.A., appeal the trial court’s order awarding attorney’s fees and costs under section 57.105, Florida Statutes (2017). The court sanctioned Appellants for asking the court multiple times to take judicial notice of an unpublished appellate opinion in an out- of-state case involving Appellee Condor Aerial, LLC. We reverse. This case began with a contract dispute. Appellants represented the plaintiff below in a lawsuit alleging Appellee breached a contract. At one point, Appellee moved for sanctions, alleging Appellants destroyed evidence. During a hearing on the motion, Appellee’s counsel on direct examination asked Appellee’s Chief Executive Officer, Fred Culbertson, about a prior, out-of- state felony conviction. Culbertson acknowledged the conviction and explained the circumstances surrounding the conviction. On cross-examination, Appellants sought to impeach Culbertson’s testimony with contradictory information about the conviction set out in an unpublished opinion from the North Carolina court which affirmed the conviction. Appellee objected to Culbertson’s being questioned about the opinion. The trial court sustained the objection. Then, Appellants asked the trial court to take judicial notice of the North Carolina opinion. But the court declined the request. After the hearing, Appellants filed a written motion repeating their request for judicial notice of the opinion. The trial court again denied the request. Appellee then moved for sanctions under section 57.105(1), arguing that Appellants’ multiple requests for the trial court to take judicial notice of the North Carolina opinion constituted improper impeachment and had no basis in law or fact. Appellee asserted that Culbertson never denied the conviction, the opinion was too remote in time, and the sole purpose of the requests for judicial notice was to cast Culbertson in a negative light. The trial court held a hearing on the motion for sanctions. The court found that Appellants’ requests for the court to take judicial notice were devoid of merit under section 57.105. So the court issued an order finding Appellee was entitled to attorney’s fees and costs. After almost two years passed, the court held a hearing to determine the appropriate amount to award and then issued an order setting the amount. This timely appeal follows. We first address Appellee’s argument that Appellants waived their right to challenge Appellee’s entitlement to fees and costs because Appellants did not ask the trial court to reconsider its ruling or immediately appeal the order granting entitlement to fees and costs when it was rendered in 2017. In its order determining entitlement to fees and costs, the trial court retained jurisdiction to enter an appropriate award. Because additional 2 judicial labor was required, the order determining entitlement was “not a final order or an otherwise appealable non-final order,” and Appellants could not appeal until the trial court entered an order determining the amount of fees due. See Magnolia Fla. Tax Certificates v. Alexa1, 229 So. 3d 1288 (Fla. 1st DCA 2017). No motion for reconsideration was needed to preserve Appellants’ arguments on appeal because they fully presented their objections to Appellee’s entitlement to fees and costs in their response to sanctions motion and during the hearing on that motion. See, e.g., Eaton v. Eaton, 293 So. 3d 567 (Fla. 1st DCA 2020) (“The purpose of the preservation requirement is to ensure that the trial court has an opportunity to correct an error at the earliest opportunity, when the court is still in a position to recall the basis of its ruling.”). And so, Appellants did not waive their right to challenge Appellee’s entitlement to fees and costs. Turning to the merits, Appellants argue that the trial court erred by awarding fees and costs under section 57.105(1) for their requests to take judicial notice of the North Carolina opinion. Appellants argue that their requests for the court to take judicial notice were not claims or defenses within the meaning of section 57.105. They also assert that their requests for the court to take judicial notice were not devoid of legal merit because there was a good argument that the opinion could be used to impeach Culbertson’s testimony about his felony conviction. We review the trial court’s order for an abuse of discretion. Grapski v. City of Alachua, 134 So. 3d 987, 989 (Fla. 1st DCA 2012). Section 57.105(1) allows a trial court to award attorney’s fees under these circumstances: (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: 3 (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. Thus, to award attorney’s fees under the statute, the trial court must find that a party advanced a claim or defense devoid of merit on the facts or the law. Demby v. English, 667 So. 2d 350, 353 (Fla. 1st DCA 1995). But “[w]here there is an arguable basis in law and fact for a party’s claim, a trial court may not sanction that party under section 57.105.” Minto PBLH, LLC v. 1000 Friends of Florida, Inc., 228 So. 3d 147, 149 (Fla. 4th DCA 2017). Appellants argue that their requests for the trial court to take judicial notice of the North Carolina court opinion for purposes of impeachment were not “claim[s] or defense[s]” devoid of legal merit under 57.105. We agree. Appellants had an arguable basis for seeking to impeach Culbertson’s testimony about his prior conviction with the North Carolina opinion. Generally, impeachment of a witness by prior convictions is limited to asking if the witness has been convicted of a crime, and if so, how many times. See § 90.610, Fla. Stat.; Fulton v. State, 335 So.2d 280, 284 (Fla. 1976). But an exception exists when a witness provides misleading testimony about the prior conviction. See Ross v. State, 913 So. 2d 1184, 1187 (Fla. 4th DCA 2005). Appellants argued that Culbertson gave perjured testimony on direct examination about the circumstances surrounding the North Carolina conviction. And so Appellants sought to impeach Culbertson’s testimony with the North Carolina opinion that contained information contradicting that testimony. On these facts, it cannot be said that Appellants’ request for the trial court to take judicial notice of the North Carolina opinion lacked an arguable basis in law or fact. * And thus we hold that the trial court * Based on our conclusion that Appellants had an arguable basis for asking the trial court to take judicial notice of the North Carolina opinion, we need not reach whether a request for a court to take judicial notice qualifies as “a claim or defense” under section 57.105. 4 abused its discretion in awarding attorney’s fees under section 57.105 for Appellants’ requests for the court to take judicial notice of the North Carolina opinion. The court erred further by awarding costs under section 57.105. See Jackmore v. Estate of Jackmore, 145 So. 3d 170 (Fla. 1st DCA 2014) (citing Ferdie v. Isaacson, 8 So. 3d 1246, 1251 (Fla. 4th DCA 2009) (explaining that section 57.105 allows for an award of reasonable attorney’s fees to the prevailing party, but does not mention costs)). For these reasons, we REVERSE the trial court’s order awarding attorney’s fees and costs under section 57.105. LEWIS, ROBERTS, and ROWE, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ George Franjola of Law Office of George Franjola, Ocala; and Patrick Gilligan of Gilligan, Gooding, Batsel & Anderson, P.A., Ocala, for Appellants. Cory S. Simmons of Morgan & Morgan, P.A., Atlanta, GA, for Appellee. 5