DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
THE STREMS LAW FIRM, P.A., and GREGORY SALDAMANDO,
Appellants,
v.
AVATAR PROPERTY & CASUALTY INSURANCE CO., OBRIAN
FRAZER, and LATOYA BYFIELD,
Appellees.
No. 4D18-1365
[June 3, 2020]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carlos A. Rodriguez, Judge; L.T. Case No. CACE16-
15798(14).
Melissa A. Giasi of Giasi Law, P.A., Tampa, for appellants.
Carol M. Rooney and Adam M. Topel of Butler Weihmuller Katz Craig
LLP, Tampa, for appellee Avatar Property & Casualty Insurance Co.
LEVINE, C.J.
Appellants, a law firm and an attorney for that firm, appeal an order
dismissing their clients’ case as a sanction for appellants’ misconduct and
imposing monetary sanctions against appellants. We find the issues
regarding the dismissal and the claim that the trial court improperly acted
as an advocate to be without merit and affirm those issues without
comment. However, we reverse the monetary sanction imposed against
appellants because it was imposed without due process.
The Strems Law Firm, P.A., and Gregory Saldamando (“appellants”)
filed a lawsuit on behalf of their clients against an insurer for breach of
contract, seeking $22,877.02 in damages. Almost a year-and-a-half later,
appellee Avatar Property & Casualty Insurance Co. (“insurer”) moved to
dismiss the case with prejudice as a sanction for appellants’ bad faith
conduct during the proceedings. After hearing argument from counsel,
the trial court orally made findings as to all of the Kozel factors and stated
that it would grant the motion to dismiss. When appellants requested that
the trial court consider a lesser sanction, the trial court instead imposed
an additional sanction by requiring appellants to pay their clients
$22,877.02, the amount the clients sought as damages in their lawsuit
against the insurer. The trial court entered a written order consistent with
its oral pronouncement. Following the denial of their motion for rehearing,
appellants appealed.
On appeal, appellants argue that the imposition of $22,877.02 in
monetary sanctions was improper and violated due process. We agree.
A trial court’s sanctions order is reviewed for abuse of discretion.
Ochalek v. Rivera,
232 So. 3d 1050, 1052 (Fla. 4th DCA 2017).
Additionally, the denial of due process is reviewed for fundamental error.
Weiser v. Weiser,
132 So. 3d 309, 311 (Fla. 4th DCA 2014).
The United States and Florida Constitutions guarantee due process of
law. U.S. Const. amend. XIV, § 1; Fla. Const. art. I, § 9. A “sanction is
appropriate only after notice and an opportunity to be heard.” Wanda I.
Rufin, P.A. v. Borga,
45 Fla. L. Weekly D424 (Fla. 4th DCA Feb. 26, 2020);
Rickard v. Bornscheuer,
937 So. 2d 311, 311 (Fla. 4th DCA 2006). A trial
court cannot award relief not sought by the pleadings. Rufin,
45 Fla. L.
Weekly D424. The insurer’s amended motion to dismiss the case did not
request an award of sanctions in favor of the clients for any amount, nor
for the amount the clients sought in the lawsuit. Rather, the insurer
sought an award of the expenses it unnecessarily incurred as a result of
appellants’ actions. The clients also did not seek an award of sanctions,
nor did the trial court provide any notice that it intended to rely on its
inherent authority to sanction. Because the trial court awarded relief not
sought, and without notice, it did not comply with due process.
Additionally, the trial court improperly prejudged the merits of the
underlying lawsuit. The trial court imposed the $22,877.02 sanction
because it represented the amount sought by the clients in their lawsuit
against the insurer. However, there has never been an adjudication on
the merits. The sanction imposed by the trial court presupposes that the
clients would have prevailed on the merits of their lawsuit and as such
would be entitled to the entire $22,877.02 in damages.
Although there is no Florida case on point, a similar situation was
considered by the Arkansas Supreme Court. In Williams v. Martin,
980
S.W.2d 248 (Ark. 1998), the trial court imposed sanctions against the
attorney in favor of the attorney’s client. In reversing, the court found that
the client had not moved for sanctions or provided notice that he would
seek sanctions. The court further stated that the client already had a
remedy since the client could “maintain the right to file a malpractice
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lawsuit against their attorney for the breach of any duty owed by that
attorney to his client.”
Id. at 252. Like in Williams, here the clients had
not moved for sanctions or provided notice that they would seek sanctions,
and they retained the same remedy as in Williams.
In sum, the $22,877.02 sanction was improper because it was not
sought by the clients and was imposed without notice, thus depriving
appellants of due process. Additionally, the amount imposed improperly
prejudged the merits of the underlying lawsuit against the insurer and
presupposed the clients would have prevailed when in fact there has never
been an adjudication on the merits. For these reasons, we reverse and
remand with instructions to vacate the $22,877.02 sanction.
Affirmed in part, reversed in part, and remanded.
DAMOORGIAN and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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