Jessica in Action

By November 27, 2018Blog


If you have been served with a domestic violence injunction based on fraudulent allegations, you may be entitled to recover attorney’s fees.  I have successfully used a motion for attorney’s fees when the injunction system was being abused to remove a child from my client’s custody.  Strategically, it can make the filer reconsider pursuing a baseless Petition for Injunction.[1] 

However, two things complicate recover of attorney’s fees in an injunction case:

  • The injunction allegations must be truly unsupported – not just in dispute.
    1. Grounds for attorney’s fees:
      1. Lack of Jurisdiction: If the injunction claims the Petitioner or Respondent is a resident of Florida but they are not, then the Court may lack jurisdiction.[2]
      2. Perjury: If the injunction is based on provable perjury or false facts, it is not supported by true and material facts.  However, attorney fees are not likely to be awarded when there is merely a dispute about what happened during an argument.
      3. Delay: If the injunction procedure is for used for unnecessary delay then attorney’s fees may be appropriate.  This may occur if the filer is abusing the system to keep the home or children.
  • The Notice must be filed as soon as possible. A ‘safe harbor’ notice must be served[3] on the opposing party who then has 21 days to remedy.  Only if the issues have not been fixed at the end of 21 days, can the actual motion be filed with the clerk and attorney’s fees be argued to the court.  This is problematic because final injunction hearings must be scheduled within 15 days of the temporary injunction order.  However, if the final hearing is continued, as it often is, the 21-day requirement can be met.

In Lopez v. Hall, 233 So. 3d 451, 452–56 (Fla. 2018), the Florida Supreme Court held that the attorney fees statute, §57.105, may be applied to repeat, dating, and sexual violence injunction proceedings under section 784.046.  Section 57.105 provides the grounds and procedure for obtaining attorney’s fees against a party and its attorney for bringing unsupported claims and defenses:

“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:

(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.”

  • 57.105(1), Fla. Stat. (2013); Lopez v. Hall, 233 So. 3d 451, 452–56 (Fla. 2018) (Respondent allowed to pursue attorney fees after temporary injunction order was based on Petition containing perjury.)

The statute also allows attorney’s fees if it is shown that assertion “was taken primarily for the purpose of unreasonable delay.”  §57.105(2).  I have seen a Petition for Injunction result in a temporary injunction order that gives the filer sole possession of the home or custody of the children.  (There is no cost to file a Petition for Injunction but a filing fee associated with filing for divorce.)  The filer then exaggerates, continues or otherwise draws out the process to keep the to seek settlement of the marital property or children.  When an injunction is filed for this purpose alone, attorney’s fees are warranted.

BOTTOM LINE:  If you or anyone you know is served with an injunction,

KNOW YOUR RIGHTS & GET A GOOD ATTORNEY!  ~ Jessica J. Travis, Attorney

Since 1999

[1] A motion for attorney’s fees should not be used to discourage real allegations and safety concerns that should be heard by a judge.  An attorney who files a motion for attorney’s fees on every injunction case is likely violating the rules of ethics.

[2] Even if the Petitioner or Respondent is not a resident, Florida may exercise jurisdiction if there have been contacts with the state as listed in Florida’s long-arm statute.  See Youssef v. Zaitouni, 241 So.3d 901 (2nd DCA 2018) (Florida’s Long-Arm statute does not grant personal jurisdiction over an injunction respondent when only contacts were that he had family in Florida and had visited the state in the past.)  However, if there is a complete lack of jurisdiction, the Respondent should file a Motion To Dismiss and, if that motion is denied, file a Writ of Prohibition before any evidence is heard.

[3] Florida appellate courts have ruled that the safe harbor notice does not need to be electronically filed with the clerk of the court.  However, a better practice is to file electronically so there is no dispute about when the notice was served.