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Zachary
Zachary, Attorney
Category: Legal
Satisfied Customers: 3987
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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QUESTION FOR ZACHARYHi Zachary, there is a pending question

Customer Question

QUESTION FOR ZACHARY

Hi Zachary, there is a pending question but as for now it's not really necessary to answer anymore.

However, just to clarify the matter of attorney;s fees:

My understanding is that a court can request a party to pay the attorneys fees of the other party as a sanction.

That this would be a different scenario as opposed to granting them based on a Statute, a contract or an offer of settlement and release that was rejected.

Am i correct ?
Submitted: 12 months ago.
Category: Legal
Expert:  Fran-mod replied 12 months ago.
I have let Zachary know that your question is waiting. If I can be of further assistance let me know.
Customer: replied 12 months ago.

thank you

Expert:  Fran-mod replied 12 months ago.
You're welcome.
Expert:  Zachary replied 11 months ago.
Hi Pierre,

Yes, that is correct. A court can grant attorneys fees as a sanction against another party. However, the courts have always held that this is not a recoverable sanction where the requesting party is pro se.

Rather, the request for sanctions should be stated as a simple monetary amount meant to reimburse you for the expenses you have incurred and the time spent by you handling the sanctionable action.

-Zachary
Customer: replied 11 months ago.

Thank you for the answer.

However, i was referring to the attorney's fees of my opponent.

The nature of the order is a sanction, OK, and this concerns my co-defendant because as for me the attorney's fees were granted on a (unexisting...) clause of the (expired) initial lease contract.

QUESTION : if my co-defendant does not pay the attorney's fees, can my oponent file a motion to compel and sanctions ?

Expert:  Zachary replied 11 months ago.
Ok, so this is about the order for your wife to pay the opponent's attorney's fees right?

If there is a standing order that is a sanctions order for the attorney's fees to be paid by your wife, and your wife is unable or refuses to pay them, the court can issue a contempt order against your wife.

The question I'm curious about is whether your opponent could then seek to move the sanctions over to you directly.

Are you divorced at this point?
Customer: replied 11 months ago.

Thank you for the info.

We are not divorced. We live separately. The reason is that the health situation of my wife requires her to be insulated as her blood pressure goes to 200 when she has any kind of argument or stress. Since her business is in CT, a typical situation of stress is to run it from here.

 

Besides, she needs medical assistance becuase her situation has gone worse this year. Her health insurance is in CT. So these are mandatory reasons. We are senior citizens, with grand kids, so it's not like we were young and just married....


In reply to your question :

1. There is no sanction order properly. Opponent's counsel has filed a motion for attorneys fees against her after the 2nd amended final judgment, and it was granted on the grounds that a offer of settlement was filed by opponent.

Now there is a hearing to tax the attorney's fees next Friday.

 

The sanction is civil, it is not the result of failing to obey to a compelling order, this is how I see it ?

2. As far as I am concerned, the judgment is a mess because it rants relief of attorney's fees without motion, on the grounds that the lease contract stipulates so.

 

Note : It's false, there is no such clause, but Plaintiff's Counsel failed to file a motion to get a statutory award and so this covers up that part in the same way as so many other things were covered up in this case

PS : when we finish this Q& A, I need to talk about a new event that pulls the "egregiousity meter" to the roof, to see what are my options to counter this.

Expert:  Zachary replied 11 months ago.
In regard to the order for attorney's fees. This is not actually a sanction if it was filed pursuant to the Offer of Settlement procedure. The Offer of Settlement procedure allows an opponent to place a written offer of settlement on the table, which if not accepted, could result in the payment of attorney's fees charged after the offer was made if the offering party wins a judgment for more than the amount offered in settlement. This procedure is found in the following statute:

768.79 Offer of judgment and demand for judgment.—
(1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him or on the defendant’s behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney’s fees against the award. Where such costs and attorney’s fees total more than the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the plaintiff’s award. If a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney’s fees incurred from the date of the filing of the demand. If rejected, neither an offer nor demand is admissible in subsequent litigation, except for pursuing the penalties of this section.
(2) The making of an offer of settlement which is not accepted does not preclude the making of a subsequent offer. An offer must:
(a) Be in writing and state that it is being made pursuant to this section.
(b) Name the party making it and the party to whom it is being made.
(c) State with particularity the amount offered to settle a claim for punitive damages, if any.
(d) State its total amount.
The offer shall be construed as including all damages which may be awarded in a final judgment.
(3) The offer shall be served upon the party to whom it is made, but it shall not be filed unless it is accepted or unless filing is necessary to enforce the provisions of this section.
(4) An offer shall be accepted by filing a written acceptance with the court within 30 days after service. Upon filing of both the offer and acceptance, the court has full jurisdiction to enforce the settlement agreement.
(5) An offer may be withdrawn in writing which is served before the date a written acceptance is filed. Once withdrawn, an offer is void.
(6) Upon motion made by the offeror within 30 days after the entry of judgment or after voluntary or involuntary dismissal, the court shall determine the following:
(a) If a defendant serves an offer which is not accepted by the plaintiff, and if the judgment obtained by the plaintiff is at least 25 percent less than the amount of the offer, the defendant shall be awarded reasonable costs, including investigative expenses, and attorney’s fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred from the date the offer was served, and the court shall set off such costs in attorney’s fees against the award. When such costs and attorney’s fees total more than the amount of the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the award to the plaintiff.
(b) If a plaintiff serves an offer which is not accepted by the defendant, and if the judgment obtained by the plaintiff is at least 25 percent more than the amount of the offer, the plaintiff shall be awarded reasonable costs, including investigative expenses, and attorney’s fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred from the date the offer was served.
For purposes of the determination required by paragraph (a), the term “judgment obtained” means the amount of the net judgment entered, plus any postoffer collateral source payments received or due as of the date of the judgment, plus any postoffer settlement amounts by which the verdict was reduced. For purposes of the determination required by paragraph (b), the term “judgment obtained” means the amount of the net judgment entered, plus any postoffer settlement amounts by which the verdict was reduced.
(7)(a) If a party is entitled to costs and fees pursuant to the provisions of this section, the court may, in its discretion, determine that an offer was not made in good faith. In such case, the court may disallow an award of costs and attorney’s fees.
(b) When determining the reasonableness of an award of attorney’s fees pursuant to this section, the court shall consider, along with all other relevant criteria, the following additional factors:
1. The then apparent merit or lack of merit in the claim.
2. The number and nature of offers made by the parties.
3. The closeness of questions of fact and law at issue.
4. Whether the person making the offer had unreasonably refused to furnish information necessary to evaluate the reasonableness of such offer.
5. Whether the suit was in the nature of a test case presenting questions of far-reaching importance affecting nonparties.
6. The amount of the additional delay cost and expense that the person making the offer reasonably would be expected to incur if the litigation should be prolonged.
(8) Evidence of an offer is admissible only in proceedings to enforce an accepted offer or to determine the imposition of sanctions under this section.


Customer: replied 11 months ago.

Thank you so much, Zachary.

I need to change account again, because I had to ak many questions since I had an unlimieted offer but the "unlimited" is somehow limited. (kidding). Given the kind of assistance I got from this website, it would be unfair of me to make a fuss for this little "bump", so I just move to the next account.... and will contact you from there, as I have an important question, after I did some researchand figured out almost completely what's the deal behind my case.

So for now you can close this thread and i will rate as usual with gratitude

Expert:  Zachary replied 11 months ago.
thank you kindly and speak to you again soon.

-Zachary
Zachary, Attorney
Category: Legal
Satisfied Customers: 3987
Experience: Lead trial/International commercial attorney licensed 11 yrs
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