DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MADSEN MARCELLUS JR.,
Appellant,
v.
KELLIE PETERSON f/k/a KELLIE P. MARCELLUS,
Appellee.
No. 4D20-1671
[October 27, 2021]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael I. Rothschild, Judge; L.T. Case No. FMCE 09-
0511 (37).
Kathleen K. Peña of Kathleen K. Peña, Attorney at Law, Fort
Lauderdale, for appellant.
Philip L. Reizenstein and Bhakti Kadiwar of Reizenstein & Associates,
P.A., Miami, for appellee.
LEVINE, J.
In this post-dissolution of marriage case, the husband appeals a final
judgment awarding the wife $282,105.34 in attorney’s fees. We affirm the
trial court’s determination of entitlement to attorney’s fees, but reverse as
to the amount because the trial court failed to hold an evidentiary hearing
and make specific findings as to the hourly rate and number of hours
reasonably expended.
The parties divorced in 2010. In 2013, the trial court granted the wife’s
petition to reopen the case due to the husband’s failure to comply with the
terms of the final judgment. As a result of the husband’s conduct in the
proceedings, The Florida Bar filed a complaint against the husband, and
the Florida Supreme Court suspended the husband from practicing law
for eighteen months. The Fla. Bar v. Marcellus,
249 So. 3d 538, 547 (Fla.
2018).
The wife moved for attorney’s fees, stating she had incurred
$259,222.92 in attorney’s fees and costs because of the husband’s bad
faith actions. After a motion calendar hearing, the trial court entered a
final judgment awarding the wife $259,222.92 in attorney’s fees pursuant
to the inequitable conduct doctrine, as well as $22,882.42 in prejudgment
interest for a total award of $282,105.34. The trial court adopted the
findings made by the supreme court and referee in the disciplinary
proceeding. The order did not contain any findings concerning a
reasonable hourly rate and a reasonable number of hours.
The husband moved for rehearing, arguing that the trial court erred in
determining the amount of fees after a motion calendar hearing instead of
an evidentiary hearing and without the requisite findings to support the
amount of fees awarded. The trial court denied the motion.
On appeal, the husband argues that the trial court abused its
discretion in awarding attorney’s fees without an evidentiary hearing and
without specific findings as to the reasonableness of the amount of
attorney’s fees. We agree.
“A trial judge’s decision to impose sanctions for bad faith litigation
conduct is reviewed under an abuse of discretion standard.” Bennett v.
Berges,
50 So. 3d 1154, 1159 (Fla. 4th DCA 2010).
A trial court’s award of attorney’s fees under the inequitable conduct
doctrine “must be based upon an express finding of bad faith conduct and
must be supported by detailed factual findings describing the specific acts
of bad faith conduct that resulted in the unnecessary incurrence of
attorneys’ fees.” Moakley v. Smallwood,
826 So. 2d 221, 227 (Fla. 2002).
In addition, the fee award amount must be directly related to the fees
incurred by the opposing party resulting from the bad faith conduct. Id.;
see also Bennett,
50 So. 3d at 1160 (“[A]n award of fees as a sanction must
be directly related to the attorney’s fees and costs that the opposing party
has incurred as a result of the specific bad faith conduct.”).
In Hicks v. Hicks,
284 So. 3d 576 (Fla. 4th DCA 2019), this court
reversed where the trial court failed to take any expert testimony or make
any findings as to the reasonable number of hours and hourly rate. This
court explained:
In awarding attorney’s fees, a trial court must set forth specific
findings, predicated on expert testimony, as to the hourly rate
and number of hours reasonably expended. Fla. Patient’s
Comp. Fund v. Rowe,
472 So. 2d 1145, 1151-52 (Fla. 1985);
Mitchell, 94 So. 3d at 707. The same rule applies with respect
to an award of attorney’s fees as a sanction. Rakusin v.
2
Christiansen & Jacknin, P.A.,
863 So. 2d 442, 445 (Fla. 4th
DCA 2003).
Id. at 579. Like in Hicks, here the trial court failed to conduct an
evidentiary hearing and failed to make any findings as to a reasonable
hourly rate and reasonable number of hours.
Accordingly, we affirm the trial court’s determination of entitlement to
attorney’s fees, reverse as to the amount, and remand for the trial court to
conduct an evidentiary hearing and make specific findings as to the hourly
rate and number of hours reasonably expended.
Affirmed in part, reversed in part, and remanded.
KLINGENSMITH and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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