Opinion
Case No. 5D21-634
03-25-2022
Misael JIMENEZ and Judith Rivera, as Co-Personal Representatives of the Estate of Gladys De Paolo Appellants, v. Armando AVILES, Stephen P. Heuston and Heuston Legal, PLLC, Appellees.
Lisa C. McCrystal and Margaret A. Wharton, of Wharton Law Group, P.A., Oviedo, for Appellants. Stephen P. Heuston, of Heuston Legal, PLLC, Melbourne, pro se. No Appearance for Remaining Appellee.
Lisa C. McCrystal and Margaret A. Wharton, of Wharton Law Group, P.A., Oviedo, for Appellants.
Stephen P. Heuston, of Heuston Legal, PLLC, Melbourne, pro se.
No Appearance for Remaining Appellee.
PER CURIAM.
Appellants appeal the trial court's order striking their three motions for attorney's fees filed pursuant to section 57.105, Florida Statutes (2019), in the probate proceeding below, arguing that the trial court erred when it determined that section 57.105(4) ’s safe-harbor provision applied. We have jurisdiction and reverse. On appeal, Appellants argue the trial court erred, inter alia , because (1) at least one document was not timely withdrawn, and (2) Appellees would repeatedly withdraw an offending document and then later refile the same claims and allegations. We agree.
We previously converted Appellants’ petition for writ of certiorari to an appeal. See Fla. R. App. P. 9.040(c) ("If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought ....").
See Fla. R. App. P. 9.170(b)(24) ; see also In re Guardianship of Bloom , 227 So. 3d 165, 169 (Fla. 2d DCA 2017).
First, although Appellees timely withdrew their "Amended Notice of Joinder" within the safe-harbor period as to the third motion, they failed to do so as to the second motion.
Second, and more importantly, Appellants did not merely challenge Appellees’ specific filings in their motions. They also challenged specific claims and allegations made by Appellees.
Section 57.105(4) provides:
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21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.
While section 57.105(4) certainly contemplates a challenge to a specific "paper," it also allows a party to challenge any "claim, defense, contention, allegation, or denial." Therefore, we conclude that the trial court erred when it only considered whether Appellees’ specific "filings" were timely withdrawn. As such, we reverse the order on appeal and remand for reconsideration of the motions.
REVERSED and REMANDED with INSTRUCTIONS.
WALLIS, EISNAUGLE and TRAVER, JJ., concur.