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Jessica Tedrow, as parent and natural guardian, et al. v. Jimmy J. Cannon, Case No. 2D15-3405 (Second DCA)

InTedrow, the plaintiff in the underlying case sought certiorari review of a nonfinal order compelling depositions and discovery for purposes of determining whether the plaintiff had filed, and later dismissed, a lawsuit against the defendant that lacked supporting facts or law in violation of Fla. Stat. 57.105. In April 2013, the plaintiff filed a strict liability lawsuit against the defendant under Florida’s dog-bit statute, Fla. Stat. 767.04, alleging that her daughter was injured by the defendant’s dog while at a party. Florida’s dog-bit statute, however, provides that if the owner displays in a prominent location on the premises a sign easily readable including the words “bad dog,” then the owner is only liable if the damages are proximately caused by a negligent act or omission of the owner. In response to the plaintiff’s complaint, the defendant served a motion for fees under Fla. Stat. 57.105, alleging that the complaint had no basis in fact or law, that the defendant had displayed such a sign, and that the plaintiff’s counsel was aware of that fact as early as November 2012. After the twenty-day period to cure under Fla. Stat. 57.105 had passed, the plaintiff filed a notice of voluntary dismissal without prejudice. The defendant then moved to compel depositions and discovery that he argued were necessary to establish his right to fees under his previously filed motion for attorneys’ fees under Fla. Stat. 57.105. Specifically, the defendant sought photographs in the plaintiff’s possession showing the absence of a sign on the premises, and depositions of the plaintiffs and their counsel to determine whether they had acted in good faith in filing the suit. Citing Pino v. Bank of New York for the proposition that a 57.105 motion survives the dismissal of a case, the trial court entered an order in July 2015 dismissing the case without prejudice, and granting discovery and depositions limited the time frames and evidence prior to the filing of suit, including the production of all photographs in the plaintiff’s counsel’s possession which served as the basis for filing suit. The plaintiff appealed.

On appeal, the Second District explained that Pino held that a notice of voluntary dismissal does not divest a trial court of jurisdiction to award sanctions under section 57.105, even if a voluntary dismissal was taken. Pino does not address, however, whether a circuit court may allow discovery on the section 57.105 question. The Second District explained that in 2011 section 57.105 was revised such that fees may be awarded when 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 was not supported by the material facts necessary to establish the claim or defense or would not be supported by the application of then-existing law to those material facts. This language broadens the remedies that were previously available under the prior version of the statute, and the new version no longer requires a party to show a “complete absence of a justiciable issue of fact or law but instead allows recovery of fees for any claims or defenses that are unsupported.” The Second District explains that the newer version of the statute allows the trial court to look beyond the complaint in determining whether fees are awardable, and permits the trial court to review the entire record, and hold an evidentiary hearing if necessary. Therefore, the Second District approved the holding of an evidentiary hearing on this question, and allowed the defendant to present evidence. However, the Second District ruled that the defendant is not entitled to privileged information from the plaintiff or counsel. Accordingly, the Second District denied the petition for certiorari review, but ruled that the plaintiff may claim attorney-client privilege or work product privilege to the information sought below.

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