Patsy v. Patsy

Decision Date31 January 1996
Docket NumberNo. 94-3112,94-3112
Citation666 So.2d 1045
Parties21 Fla. L. Weekly D302 Jonathan D. PATSY, Appellant, v. Rosanne M. PATSY, Appellee.
CourtFlorida District Court of Appeals

William C. Porter of William C. Porter, P.A., Coral Springs, for Michael C. Meisler.

Michael C. Meisler, for appellant.

Gregg H. Glickstein of Schwartz, Gold, Cohen, Zakarin & Kotler, P.A., Boca Raton, for appellee.

KLEIN, Judge.

Michael C. Meisler appeals an order awarding attorney's fees and costs against him, as counsel, as a sanction for filing a motion in bad faith. He argues that because there is no specific rule or statute authorizing an award of attorney's fees for filing such a motion, we must reverse. We conclude that the trial court had the inherent power to do so.

In a modification proceeding in which he represented the former husband, Meisler filed a motion to disqualify opposing counsel on the ground that he had perpetrated a fraud on the court on two prior occasions. At Meisler's request, based on the motion, the court stayed further proceedings until after it conducted an evidentiary hearing on the motion to disqualify. After hearing the evidence the trial court found that the motion had no factual basis, was filed solely to delay the proceedings, and was a sham. The court assessed attorney's fees of $1,870 and costs.

Meisler appears to be correct in his arguments that there is no specific statute or rule of civil procedure which authorizes attorney's fees to be assessed against him as a sanction for filing this motion.

Section 57.105, Florida Statutes (1993) authorizes the award of attorney's fees where there is "a complete absence of a justiciable issue of either law or fact raised by the complaint or defense of the losing party," but does not authorize attorney's fees for filing a frivolous motion where the underlying action or defense is not frivolous. Muckenfuss v. Deltona Corp., 508 So.2d 340 (Fla.1987).

Nor does Florida Rule of Civil Procedure 1.150, which provides for the striking of sham pleadings, contain any language authorizing the award of attorney's fees. See Kirby v. Adkins, 582 So.2d 1209 (Fla. 5th DCA 1991); Muckenfuss. There is also authority that a motion is not a pleading within the meaning of rule 1.150. Motzer v. Tanner, 561 So.2d 1336 (Fla. 5th DCA 1990). Florida Rule of Civil Procedure 1.380(a)(4), which does authorize the sanction of attorney's fees and costs, is limited to discovery abuse and is thus inapplicable.

Florida Rule of Judicial Administration 2.060 provides that a signature of an attorney constitutes a certificate that there is "good ground to support" a pleading or other paper; however, the only remedy provided in that rule is striking the pleading or paper. 1

The fact that no statute or rule authorizes the imposition of attorney's fees against counsel for litigating in bad faith, however, does not preclude courts from doing so under the "inherent power possessed by the courts." Sanchez v. Sanchez, 435 So.2d 347, 350 (Fla. 3d DCA 1983). See also Emerson Realty Group, Inc. v. Schanze, 572 So.2d 942 (Fla. 5th DCA 1990). Other jurisdictions in which the courts have concluded that they have the inherent power to assess attorney's fees for litigating in bad faith are collected in Attorney's Liability Under State Law for Opposing Party's Counsel Fees, 56 A.L.R.4th 486 (1987).

On the other hand, in Israel v. Lee, 470 So.2d 861 (Fla. 2d DCA 1985), the trial court assessed attorney's fees against counsel for refusing to comply with court orders and a subpoena, and the second district reversed, holding that in the absence of a contractual provision or a statute there was no authority to assess attorney's fees against counsel. The court did not discuss the issue of whether counsel was acting in bad faith or if the court had the inherent power to assess fees.

Although Federal Rule of Civil Procedure 11 gives broader power to the federal courts to assess attorney's fees as a sanction against counsel than is provided in the Florida Rules of Civil Procedure, the Supreme Court has held that federal courts also have the inherent power, apart from the authority contained in rules or statutes, to assess attorney's fees against counsel who litigate in bad faith. Roadway Exp., Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980). Roadway was followed by Chambers v. NASCO, Inc., 501 U.S. 32, 50, 111 S.Ct. 2123, 2136, 115 L.Ed.2d 27 (1991), in which the court explained:

A court must, of course, exercise caution in invoking its inherent power, and it must comply with the...

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23 cases
  • Moakley v. Smallwood
    • United States
    • Florida Supreme Court
    • February 28, 2002
    ...sparingly and cautiously exercise this inherent authority to award attorneys' fees against an attorney. For example, in Patsy v. Patsy, 666 So.2d 1045 (Fla. 4th DCA 1996), another post-judgment dissolution proceeding, the Fourth District affirmed an award of attorneys' fees and costs agains......
  • BDO Seidman v. British Car Auctions, Inc.
    • United States
    • Florida District Court of Appeals
    • October 31, 2001
    ...to a court's inherent power to sanction litigants who act in bad faith or otherwise abuse the judicial process. See Patsy v. Patsy, 666 So.2d 1045, 1047 (Fla. 4th DCA 1996). Numerous cases have described the offer of judgment statute as being "punitive." See, e.g., Schussel v. Ladd Hairdres......
  • Atwater v. Charles (In re Charles), Case No. 6:11-bk-14989-KSJ
    • United States
    • U.S. Bankruptcy Court — Middle District of Florida
    • June 27, 2014
    ...1274 (11th Cir. 2013) cert. denied, 134 S. Ct. 1880 (2014). 86. Id. at 1273-75. 87. Id. at 1274-75. 88. See, e.g., Patsy v. Patsy, 666 So. 2d 1045, 1047 (Fla. 4th DCA 1996) (imposing attorney fee and costs judgment as punishment for attorney's bad faith litigation) Sanchez v. Sanchez, 435 S......
  • Smallwood v. Perez, 96-3243.
    • United States
    • Florida District Court of Appeals
    • September 16, 1998
    ...the award. Courts have the inherent power to assess attorney's fees against counsel for litigating in bad faith. See Patsy v. Patsy, 666 So.2d 1045, 1047 (Fla. 4th DCA 1996); Sanchez v. Sanchez, 435 So.2d 347, 350 (Fla. 3d DCA 1983); see also Roadway Express, Inc., v. Piper, 447 U.S. 752, 7......
  • Request a trial to view additional results
3 books & journal articles
  • Alternative dispute resolution and settlement
    • United States
    • James Publishing Practical Law Books Florida Family Law and Practice - Volume 1
    • April 30, 2022
    ...good faith; burden was on counsel to show good faith, not on moving parties to show bad faith or absence of good faith); Patsy v. Patsy, 666 So. 2d 1045 (Fla. 4th DCA 1996)(fact that no statute or rule authorizes imposition of attorneys’ fees against counsel for litigating in bad faith, how......
  • Discovery and use of experts
    • United States
    • James Publishing Practical Law Books Florida Family Law and Practice - Volume 1
    • April 30, 2022
    ...The only requirement under the rule is that the motion to compel be granted and that opposition was not justified. [Patsy v. Patsy, 666 So. 2d 1045 (Fla. 4th DCA 1996)(court has inherent authority to award attorneys’ fees and costs if it finds that attorney has litigated in bad faith; uphol......
  • The 1996 amendments to Florida Rule of Civil Procedure 1.442; reconciling a decade of confusion.
    • United States
    • Florida Bar Journal Vol. 71 No. 7, July 1997
    • July 1, 1997
    ...1.380, Fla. R. Civ. P., or derived from courts' "inherent power to assess attorneys' fees for litigating in bad faith." Patsy v. Patsy, 666 So. 2d 1045, 1047 (Fla. 4th D.C.A. [8] See, e.g., 42 U.S.C. [sections] 1988(b) (1996). [9] The Florida Barre: Amendment to Rules of Civil Procedure, Ru......

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