DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
BRENDA FORMAN,
Appellant,
v.
HOWARD C. FORMAN,
Appellee.
No. 4D18-3286
[November 6, 2019]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Mark A. Speiser, Judge; L.T. Case No. MHC 17-0822.
Roderick D. Vereen of the Law Office of Roderick D. Vereen, P.A., Miami,
for appellant.
Scott A. Weiss and R. Daniel Sirois of Scott A. Weiss, P.A., Fort
Lauderdale, for appellee.
DAMOORGIAN, J.
Brenda Forman (“Wife”) appeals an order assessing attorney’s fees and
costs against her personally, arising out of proceedings which Wife
initiated to determine the incapacity of her then estranged husband,
Howard Forman (“Husband”), and to appoint an emergency temporary
guardian. The trial court specifically assessed fees against Wife under
section 744.331(7), Florida Statutes, after finding that Wife filed the
petition to determine incapacity in bad faith. We affirm the order as to the
finding of entitlement to fees without further comment. Because the court
failed to make specific findings as to the amount of fees, however, we are
compelled to reverse and remand for entry of a written order containing
the necessary findings.
Husband’s court-appointed attorney initially sought in excess of
$100,000 in fees, which included work performed by the attorney at an
hourly rate of $395 and work performed by the attorney’s paralegal at an
hourly rate of $125. After considering the evidence presented at the fee
hearing, the court determined that 171.42 hours at the hourly attorney
rate of $350 and hourly paralegal rate of $125 was reasonable and
awarded a lump sum of $59,997 in fees. In reducing the amount of
attorney’s fees sought, the court found that some of the billing entries were
duplicative and/or included administrative work which should have been
performed by a paralegal and billed accordingly. The court did not
distinguish in its order the specific number of hours expended by the
attorney versus the number of hours expended by the paralegal, nor did it
specify which entries were duplicative. The court also awarded additional
fees, including $1,400 for the time spent litigating the amount of fees.
“It is well-settled that an award of attorney’s fees must be supported by
substantial competent evidence and contain express findings regarding
the number of hours reasonably expended and a reasonable hourly rate
for the type of litigation involved.” Mitchell v. Mitchell,
94 So. 3d 706, 707
(Fla. 4th DCA 2012). These required findings are mandatory, and it is
improper for a court to “‘reverse engineer’ the required findings based upon
a lump sum award of fees.”
Id.
Here, the court’s order does not include the required findings as to the
number of hours reasonably expended by the attorney versus the number
of hours reasonably expended by the paralegal. Instead, the court merely
awarded a lump sum award of fees. See Bennett v. Berges,
50 So. 3d 1154,
1160 (Fla. 4th DCA 2010) (holding that the court’s order was insufficient
because it awarded a lump sum of fees without making the requisite
findings). Moreover, although the court reduced the amount of attorney’s
fees sought on the basis that some of the billing entries were duplicative,
the court did not specify which entries were duplicative. See Thorpe v.
Myers,
67 So. 3d 338, 345 (Fla. 2d DCA 2011) (holding that the attorney’s
fees order was deficient because the court failed to “delineate the services
for which compensation was deemed permissible and the services for
which compensation was disallowed”).
Accordingly, we reverse and remand to the trial court for entry of a
written order containing the necessary findings. See Simhoni v. Chambliss,
843 So. 2d 1036, 1037 (Fla. 4th DCA 2003). “The court need not hold a
new evidentiary hearing if it is able to enter a written order from its notes
or a transcript of the original fees hearing.”
Id.
As to the trial court’s award of $1,400 in fees for the time spent in
litigating the amount of fees, which Wife also challenges, we hold that it
was within the court’s discretion to include “fees on fees” because it
awarded the underlying fees as a sanction under section 744.331, Florida
Statutes. See Bennett,
50 So. 3d at 1158–59 (recognizing that, in certain
circumstances, a trial court can award “fees on fees” as a sanction);
Condren v. Bell,
853 So. 2d 609, 610 (Fla. 4th DCA 2003) (same). Section
2
744.331, which governs the procedures for determining incapacity,
provides that fees “may be assessed against the petitioner if the court finds
the petition to have been filed in bad faith.” § 744.331(7)(c)2., Fla. Stat.
(2017). Because an award of attorney’s fees under the statute is
predicated upon a finding of bad faith conduct on the part of the petitioner,
it is clear that the legislature intended for an award of fees under the
statute to serve as a sanction. Cf. Bennett,
50 So. 3d at 1158 (holding that
because the statute at issue did not provide a valid basis for personal
liability for attorney’s fees but rather merely provided for an award of fees
from the estate, the court could not award “fees on fees” as a sanction
under the statute).
Affirmed in part, reversed in part, and remanded.
CIKLIN and GERBER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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