Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT RIVERA CHIROPRACTIC, INC., KEATHEL CHAUNCEY, ESQ., and FRESH LEGAL PERSPECTIVE, PL, Appellants, v. ROLAND A. ROSELLO; ROLAND A. ROSELLO, P.L.; SIERRA HOLT; and CANDICE HOLT, Appellees. No. 2D20-3068 March 30, 2022 Appeal from the Circuit Court for Hillsborough County; Rex M. Barbas, Judge. Chelsea Scott and Keathel Chauncey of Fresh Legal Perspective, Tampa, for Appellants. Frederick W. Vollrath of Law Office of Frederick W. Vollrath, Tampa; and Roland A. Rosello of Law Office of Roland A. Rosello, PL, Tampa, for Appellees Roland A. Rosello and Roland A. Rosello, P.L. No appearance by remaining Appellees. ATKINSON, Judge. Rivera Chiropractic, Inc., Keathel Chauncey, Esq., and Fresh Legal Perspective, PL, appeal the trial court's judgment awarding interim attorney's fees and costs to Roland A. Rosello and his law practice Roland A. Rosello, P.L. (collectively, Rosello), as a sanction pursuant to section 57.105, Florida Statutes (2020).1 We reverse the judgment because the trial court erred by granting motions for sanctions that had not been served pursuant to section 57.105(4). We also reject Rosello's argument that the motions for sanctions filed after Rivera Chiropractic had voluntarily dismissed the case serve as an alternate basis for affirming the judgment because the notice of voluntary dismissal deprived the trial court of jurisdiction to hear motions for sanctions that had not yet been filed. Background While she was a minor, Sierra Holt (daughter) was involved in a car accident. Her legal guardian, Candice Holt (mother) contracted with Rivera Chiropractic on behalf of her daughter for chiropractic services for injuries that her daughter sustained in the 1 The judgment on appeal does not provide that Rivera Chiropractic, Attorney Chauncey; and Fresh Legal Perspective are liable to Appellees Sierra and Candice Holt. The Holts have not made an appearance in this appeal. 2 accident. The mother executed a doctor's lien in favor of Rivera Chiropractic. Mr. Rosello was the daughter's attorney in a personal injury case arising from the accident, which resulted in a settlement. Mr. Rosello received the settlement funds into a trust account and distributed them to claimants. Rivera Chiropractic submitted a claim to Mr. Rosello for payment for the chiropractic services it rendered to the daughter. Mr. Rosello did not distribute any settlement funds to Rivera Chiropractic. In January 2019, Rivera Chiropractic filed its lawsuit alleging two counts of breach of fiduciary duty, one against Mr. Rosello as an individual and one against his law firm.2 Later, Rivera Chiropractic filed its first amended complaint. Rivera Chiropractic alleged that Rosello had a duty to pay Rivera Chiropractic based on the doctor's lien which identified Rosello as the daughter's attorney. On May 10, 2019, Rosello filed a motion to dismiss the first amended complaint for failure to state a claim upon which relief 2 Rivera Chiropractic also brought breach of contract claims against the mother and daughter. These claims are not relevant to the issues on appeal. 3 could be granted. On May 16, 2019, Rivera Chiropractic and its attorney, Keathel Chauncey were served with a safe harbor letter pursuant to section 57.105(4). In the body of the letter and in an enclosed motion for sanctions, Rosello informed Rivera Chiropractic that the claims made in the first amended complaint were not supported by the material facts necessary to establish any cause of action and were not supported by the application of existing law to those material facts. Rivera Chiropractic did not withdraw its claims against Rosello or otherwise correct the first amended complaint within the twenty-one-day safe harbor period. See § 57.105(4). For reasons unclear from the record, Rosello did not then file the motion for sanctions it had enclosed in the safe harbor letter that Rivera Chiropractic had received on May 16, 2019. On September 4, 2019, the trial court dismissed the first amended complaint without prejudice. In its order, the trial court found that Rivera Chiropractic had not sufficiently pled the facts necessary to state a cause of action but acknowledged that Rivera Chiropractic could potentially state a cause of action for breach of an implied duty by an escrow agent. On September 27, 2019, Rivera Chiropractic filed its second amended complaint, providing 4 more facts to support its breach of fiduciary duty claims based on the existence of the doctor's lien. On October 2, 2019, and again on October 4, 2019, Rosello filed a motion to dismiss the second amended complaint with prejudice as a sanction, alleging that Rivera Chiropractic had perpetrated a fraud upon the court by filing a forged copy of the Doctor's Lien. Rosello sought an award of attorney's fees as a sanction. In the October 2 and 4 motions, Rosello claimed to have "served [Attorney Chauncey] with this letter and motion under Florida Statute 57.105 which was received by [Attorney Chauncey] on the date reflected in the return receipt attached" to the motions. The attached return receipt indicated that Attorney Chauncey had received Rosello's letter on May 16, 2019—four months before the second amended complaint was filed. The attached safe harbor letter requested that Rivera Chiropractic dismiss counts 1 and 2 of the first amended complaint; it of course made no mention of the second amended complaint—which had yet to be filed—that would later become the subject of the October 2 and 4 motions. On October 8, 2019, Rivera Chiropractic filed a notice of voluntary dismissal. On October 10, 2019, Rosello filed three 5 motions for sanctions. The October 10 motions were identical to the motion for sanctions enclosed with the safe harbor letter Rivera Chiropractic received on May 16, 2019. In these motions, Rosello alleged that Rivera Chiropractic and its attorney knew or should have known that the allegations in the first amended complaint were not based on the material facts necessary to support any cause of action or on the then-existing law as applied to the material facts. After a hearing on the reasonable amount of attorney's fees, Rivera Chiropractic filed a motion for reconsideration, challenging the trial court's jurisdiction to hear the October 10 motions because they were filed after it had filed its notice of voluntary dismissal. Rosello argued that the trial court had jurisdiction to entertain its October 2, 4, and 10 motions. Rivera Chiropractic then argued that the October 2 and 4 motions were insufficient because Rosello never triggered the safe harbor period by serving Rivera Chiropractic with a copy of the motions more than twenty-one days before filing the motions. On August 24, 2020, the trial court denied Rivera Chiropractic's motion for reconsideration, concluding that it had jurisdiction to award sanctions based on the October 2 and 4 6 motions because Rosello had properly served the motions on Rivera Chiropractic on May 16, 2019, and they were filed before the voluntary dismissal. The trial court found that the October 10 motions "had no effect" because they were filed two days after the voluntary dismissal. After an evidentiary hearing on Rosello's motions, the trial court made oral findings that the Doctor's Lien upon which Rivera Chiropractic's claims had been based was ineffective and even if it had been effective, it was meant for an insurance carrier, not for an attorney or other individual. The trial court did not make any findings regarding whether the Doctor's Lien had been fraudulently altered prior to Rivera Chiropractic filing the lawsuit as alleged in the October 2 and 4 motions. On October 1, 2020, the trial court entered judgment for interim attorney's fees and costs as a sanction against Rivera Chiropractic, Attorney Chauncey, and Attorney Chauncey's law firm. The trial court did not make detailed written findings regarding Rosello's entitlement to sanctions; instead, the judgment contained a generalized finding that Rivera Chiropractic's claims were without basis in law or fact and it had filed and pursued these 7 claims in bad faith.3 Rivera Chiropractic and Attorney Chauncey timely appealed. I. Safe Harbor Letter for the October 2 and 4 Motions "Generally, the standard of review of a trial court's order awarding section 57.105(1) attorney's fees is abuse of discretion. However, to the extent a trial court's order on fees is based on an issue of law, this court applies de novo review." Lago v. Kame by Design, LLC, 120 So. 3d 73, 74 (Fla. 4th DCA 2013) (citing Ferere v. Shure, 65 So. 3d 1141, 1144 (Fla. 4th DCA 2011)). Pursuant to section 57.105(4), "[a] motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected." Granting a motion for sanctions that does not comply with the safe harbor provision in section 57.105(4) is reversible error. Lago, 120 3 Given our disposition of this case, we have no reason to reach Rivera Chiropractic's arguments regarding whether the trial court made adequate factual findings to support its award of sanctions, whether the trial court erred by awarding sanctions against Attorney Chauncey's law firm, and whether the trial court erred by awarding costs as a sanction. 8 So. 3d at 74–75 (citing Burgos v. Burgos, 948 So. 2d 918, 919 (Fla. 4th DCA 2007)). Rivera Chiropractic is correct that the trial court erred by finding that Rosello had served the October 2 and 4 motions before filing them with the trial court. The only safe harbor letter Rosello served on Rivera Chiropractic was the one Rivera Chiropractic received on May 16, 2019. That letter was directed at Rivera Chiropractic's first amended complaint and was based on the theory that Rivera Chiropractic's claims were not supported by the material facts necessary to establish any cause of action and were not supported by the application of the existing law to the material facts. Even though Rivera Chiropractic did not withdraw or voluntarily dismiss its first amended complaint within twenty-one days of service, Rosello did not file the motion for sanctions enclosed with the safe harbor letter until October 10, 2019. In his October 2 and 4 motions, Rosello stated that he served Rivera Chiropractic with those motions on May 16, 2019. But a different motion—directed at the first amended complaint—had been served with the safe-harbor letter on May 16, 2019. The October 2 and 4 motions were directed at the second amended complaint 9 which was filed on September 27, 2019, several months after Rivera Chiropractic had been served with Rosello's safe harbor letter. The October 2 and 4 motions raised a new argument—fraud upon the court—that had not been raised in the motion served with the safe harbor letter. "[A] subsequent or amended motion for sanctions under section 57.105 . . . [that] raises an argument that was not raised in the original motion for . . . sanctions . . . must independently comply with . . . the 'safe harbor' provision of section 57.105(4)." Lago, 120 So. 3d at 75. Rosello never served Rivera Chiropractic with the October 2 and 4 motions before filing them with the trial court. As such, there was never a safe harbor period during which Rivera Chiropractic could have had the opportunity to withdraw the second amended complaint to which the October 2 and 4 motions were directed. See § 57.105(4) (providing that a motion "must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected"). 10 II. Effect of Voluntary Dismissal on the October 10 motions Rosello argues that the trial court did not err by awarding sanctions because the October 10 motions provided an alternative basis upon which to grant the fees. In response, Rivera Chiropractic argues that the October 10 motions cannot serve as a basis for the trial court's award of sanctions because the October 10 motions were filed after Rivera Chiropractic voluntarily dismissed the case. When a plaintiff files a notice of voluntary dismissal, the trial court is generally deprived of jurisdiction to proceed in the case. Pino v. Bank of N.Y., 121 So. 3d 23, 32 (Fla. 2013). However, trial courts retain jurisdiction to dispose of "pending" motions for sanctions based on section 57.105 despite a plaintiff's notice of voluntary dismissal. Id. at 42–43 ("If the plaintiff does not file a notice of voluntary dismissal or withdraw the offending pleading within twenty-one days of a defendant's request for sanctions under section 57.105, the defendant may file the sanctions motion with the trial court, whereupon the trial court will have continuing jurisdiction to resolve the pending motion and to award attorney's 11 fees under that provision if appropriate, regardless of the plaintiff's subsequent dismissal."). Rosello's October 10 motions were obviously not "pending" at the time the case was voluntarily dismissed two days earlier on October 8. See id. The safe harbor period runs from the time of service of the motion, and if the nonmoving party's withdrawal of the offending filing occurs after that period has elapsed, it typically does not matter when the sanctions motion is filed because the statute includes no deadline for the moving party to file its motion. See § 57.105(4). Unless, of course, the nonmoving party withdraws its entire case by voluntarily dismissing, because "[a]t that point the case cease[s] to exist, and there [i]s no pending motion for sanctions to provide the court with continuing jurisdiction." Residents for a Better Cmty. v. WCI Cmtys., Inc., 291 So. 3d 632, 633–34 (Fla. 2d DCA 2020) (explaining that for the exception allowing a trial court to award section 57.105(1) sanctions after voluntary dismissal to apply, "the motion for sanctions must have been filed before the case was voluntarily dismissed" (citing Pino, 121 So. 3d at 41–42)); Pomeranz & Landsman Corp. v. Miami Marlins Baseball Club, L.P., 143 So. 3d 1182, 1183 (Fla. 4th DCA 2014) ("Respondent served its 12 motion for sanctions in this case on July 29, 2012, but did not file the motion with the court upon the expiration of the 21-day safe harbor provision. [After] petitioner voluntarily dismissed the action, ending the trial court's jurisdiction[,] . . . respondent filed the motion for sanctions with the court. . . . The voluntary dismissal ended the trial court’s jurisdiction. We therefore grant the petition."). Even though Rosello had properly served the October 10 motions on Rivera Chiropractic pursuant to section 57.105(4) and more than twenty-one days had elapsed before the offending filings were withdrawn and the motions were filed, the trial court lacked jurisdiction to entertain the motions as a result of the voluntary dismissal. See Pomeranz, 143 So. 3d at 1183. Because the timely filed motion had never been served and the motion that had been timely served was filed too late, we must reverse the trial court's judgment awarding fees as sanctions. Reversed. BLACK and LUCAS, JJ., Concur. Opinion subject to revision prior to official publication. 13