DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
FELIZ SOTO,
Appellant,
v.
CARROLLWOOD VILLAGE PHASE III
HOMEOWNERS ASSOCIATION, INC.;
THE GREENS OF TOWN 'N COUNTRY
CONDOMINIUM ASSOCIATION, INC., a
Florida not-for-profit corporation; CITI
FINANCIAL HOLDING TRUST, LLC; and
ASSOCIA GULF COAST, INC.,
Appellees.
No. 2D20-1944
September 3, 2021
Appeal from the Circuit Court for Hillsborough County; Martha J.
Cook, Judge.
Ian Horn of Horn & Associates, Brandon, for Appellant.
Scott B. Tankel and Robert L. Tankel of Tankel Law Group,
Dunedin, for Appellee Carrollwood Village.
No appearance for remaining Appellees.
SILBERMAN, Judge.
Defendant/Counterplaintiff Felix Soto appeals a final order
that grants attorney's fees as a sanction pursuant to section
57.105(1), Florida Statutes (2017), and awards fees of $6,350 to
Counterdefendant Carrollwood Village Phase III Homeowners
Association, Inc. (Carrollwood Village). Because the circuit court
failed to make the necessary findings regarding entitlement to and
the amount of attorney's fees as a sanction and further failed to
conduct an evidentiary hearing on the amount of fees, we reverse
the sanctions order and remand for further proceedings.
The Greens of Town 'N Country Condominium Association,
Inc. (The Greens), sued Soto in county court to foreclose a lien for
condominium maintenance fees. After a default, a final judgment of
foreclosure was entered. Citi Financial Holdings Trust, LLC (Citi
Financial), purchased the property at a foreclosure sale in
December 2014. Upon Soto's request for relief under Florida Rule
of Civil Procedure 1.540(b)(4), the county court determined that the
foreclosure judgment was void. Soto then answered the complaint
and filed a counterclaim, joining Citi Financial as a
counterdefendant. The action was transferred to circuit court
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because the counterclaim sought damages in excess of the county
court's jurisdictional limit. Carrollwood Village has a final
judgment against the current titleholder to the subject property,
Citi Financial, that apparently resulted from a dispute concerning a
different property.
In his amended counterclaim filed in 2017, Soto joined
Carrollwood Village as a counterdefendant in count two. Twice the
circuit court granted Carrollwood Village's motion to dismiss and
gave Soto leave to amend. After each dismissal Carrollwood Village
filed a motion for sanctions under section 57.105(1), and the circuit
court denied each motion without prejudice.
Soto's third amended counterclaim contained eight counts and
named Carrollwood Village in claims for declaratory relief in three
counts. Carrollwood Village again filed a motion to dismiss and a
motion for sanctions under section 57.105(1). After hearing
argument, the circuit court dismissed with prejudice the counts of
the third amended counterclaim against Carrollwood Village. The
order states boilerplate language that the motion to dismiss with
prejudice is granted and that each of the counts against
Carrollwood Village "have been dismissed with prejudice." The
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court retained jurisdiction to address the motion for sanctions.
Soto appealed the dismissal order as to Carrollwood Village, but the
appeal was dismissed after Soto failed to comply with this court's
order directing him to file an initial brief.
In the circuit court, Carrollwood Village filed two affidavits in
support of its motion for sanctions, seeking fees of $6,350. Soto
filed the affidavit of Joseph Williams, an attorney, who asserted that
the hourly amounts charged were reasonable but that the sum of
$6,350 was not reasonable because "[s]ome of the services billed for
are inappropriate, not recoverable or are duplicative." Our record
does not contain a transcript of the nonevidentiary hearing
conducted on April 15, 2020.
The circuit court entered the sanctions order on April 17,
2020. The circuit court granted the motion, with the court finding
"the time, scope of work, and rate of [Carrollwood Village's] counsel
to be reasonable." No further findings were made.
On appeal, Soto contends that the circuit court erred in ruling
that Carrollwood Village was entitled to attorney's fees as a sanction
under section 57.105(1). Citi Financial purchased Soto's property
at the foreclosure sale in 2014. Soto argues that Carrollwood
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Village acquired a lien against all of Citi Financial's real property
interests in Hillsborough County when Carrollwood Village recorded
its judgment against Citi Financial in that county on August 19,
2015. See § 55.10(1), Fla. Stat. (2015). But in 2016 the county
court determined that the foreclosure judgment was void,
apparently for lack of due process in the proceedings.
In his third amended counterclaim against Carrollwood
Village, Soto sought, among other things, a declaration of rights
regarding the construction of section 702.036(1)(a), Florida Statutes
(2017), which governs the finality of mortgage foreclosure
judgments and a declaration regarding the as-applied
constitutionality of the statute on due process grounds. Soto
appears to be asking whether he is permitted to regain title to his
property and whether Citi Financial's title to the property is void,
thereby affecting Carrollwood Village's judgment lien on the
property.
The dismissal order granted the motion to dismiss and
dismissed the counts with prejudice but contained no findings or
legal analysis. Soto did not pursue his appeal to challenge the
dismissal, and we are not tasked in this appeal with determining
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whether that dismissal was proper. See Peyton v. Horner,
920 So.
2d 180, 183 (Fla. 2d DCA 2006). But that does not mean that
Carrollwood Village is entitled to attorney's fees as a sanction under
section 57.105(1).
The statute authorizes a fee award if
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). The statute is "intended to address frivolous
pleadings." Peyton,
920 So. 2d at 183. And the court may not
award a monetary sanction "if the court determines that the claim
or defense was initially presented to the court as a good faith
argument for the extension, modification, or reversal of existing law
or the establishment of new law, as it applied to the material facts,
with a reasonable expectation of success." § 57.105(3)(a).
"Failing to state a cause of action is not, in and of itself, a
sufficient basis to support a finding that a claim was so lacking in
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merit as to justify an award of fees pursuant to section 57.105."
Connelly v. Old Bridge Vill. Co-Op, Inc.,
915 So. 2d 652, 656 (Fla. 2d
DCA 2005) (quoting Mason v. Highlands Cnty. Bd. of Cnty. Comm'rs,
817 So. 2d 922, 923 (Fla. 2d DCA 2002)); see also MC Liberty
Express, Inc. v. All Points Servs., Inc.,
252 So. 3d 397, 403 (Fla. 3d
DCA 2018) ("[A]n award of fees under section 57.105 requires more
than the moving party succeeding in obtaining a dismissal of the
action or the entry of a summary judgment in its favor . . . .").
Soto contends that he reasonably sought to join Carrollwood
Village as a lien creditor so that any interest it might have in the
property would be decided in one suit. He asserts that Carrollwood
Village's interest in the property would be affected by a
determination of whether Citi Financial's title is void. See § 86.091,
Fla. Stat. (2017) ("When declaratory relief is sought, all persons may
be made parties who have or claim any interest which would be
affected by the declaration. No declaration shall prejudice the
rights of persons not parties to the proceedings."). Soto argues that
he thus had colorable grounds for joining Carrollwood Village and
that fees as a sanction should not be awarded against him.
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Soto also contends that the sanctions order does not provide
any findings regarding whether Soto's joinder of Carrollwood Village
as a party is insupportable and that the court's failure to make
such findings renders the order infirm. A fee award as a sanction
under section 57.105(1) requires the circuit court to make detailed
findings on the basis of its award. Jean-Pierre v. Glaberman, 192
So. 3d 613, 613 (Fla. 4th DCA 2016) (reversing fee order under
section 57.105(1) when the trial court "failed to make detailed
findings in its order regarding the basis for the fees sanction"); see
also Austin & Laurato, P.A. v. State Farm Fla. Ins. Co.,
229 So. 3d
911, 913 (Fla. 5th DCA 2017) ("An order awarding attorney's fees as
a sanction under section 57.105(1) 'must include findings by the
trial court to support the award.' " (quoting Goldberg v. Watts, 864
So. 2d 59, 60 (Fla. 2d DCA 2003))).
In Jackson v. Jackson,
177 So. 3d 639, 641 (Fla. 2d DCA
2015), this court reversed an attorney's fee order based on section
57.105(1) and remanded for the circuit court to "enter an order
setting forth the basis for its finding of entitlement as well as the
facts supporting the amount awarded." The appellant in Jackson
had failed to file a transcript of the fee hearing, and this court
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recognized the appellant's burden to provide a record adequate for
review.
Id. "But even when the appellant has not done so, a fee
award without adequate findings to justify the amount is
reversible."
Id.
Although we lack a transcript, "[r]eversal is required unless
the trial court makes specific written findings" regarding the factors
required by Florida Patient's Compensation Fund v. Rowe,
472 So.
2d 1145 (Fla. 1985). R.M.A. v. J.A.S.,
269 So. 3d 649, 652 (Fla. 2d
DCA 2019). In R.M.A., the trial court had made some written
findings but failed to make "specific findings as to the
reasonableness of the number of hours spent by [counsel]." Id. at
650; see also Tribble v. L.O.-B.,
315 So. 3d 1239, 1240 (Fla. 2d DCA
2021) (reversing as to the amount of an order that awarded fees as
a sanction because "a trial court must make specific findings
regarding the number of hours reasonably expended and the
reasonableness of the hourly rate charged").
In awarding fees to Carrollwood Village, the circuit court made
very generalized findings that "the time, scope of work, and rate"
were "reasonable." The court did not state what rate or number of
hours it determined were reasonable, and its findings were plainly
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insufficient, particularly in light of the competing affidavits. The
circuit court has provided us with neither findings on entitlement to
fees under section 57.105(1) nor with the necessary findings on the
amount of fees. Therefore, we reverse the sanctions order and
remand for further proceedings.
In addition to the lack of findings, the circuit court failed to
conduct an evidentiary hearing on the amount of fees. Soto
contested the amount of attorney's fees, as shown by the affidavit
he filed prior to the hearing. Without a stipulation or waiver, the
trial court was required to take evidence before making a fee award.
See Newman v. Newman,
121 So. 3d 661, 662 (Fla. 1st DCA 2013)
(recognizing that "absent a stipulation, a party seeking attorney's
fees must prove with evidence at an evidentiary hearing the
reasonableness of the fee sought" (citing Giovanini v. Giovanini,
89
So. 3d 280, 282 (Fla. 1st DCA 2012))); see also Wagner v. Bank of
Am., N.A.,
143 So. 3d 447, 448 (Fla. 2d DCA 2014) ("The only
evidence of these costs and fees was an affidavit filed by the bank's
counsel prior to trial, but as all parties agreed below, Wagner was
entitled to an evidentiary hearing on the amount of attorney's fees
and costs sought by the bank."). Carrollwood Village does not
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contend that Soto waived an evidentiary hearing, and nothing in
our record reflects a waiver. Therefore, the circuit court erred in
failing to conduct an evidentiary hearing regarding the amount of
fees awarded.
In summary, we reverse and remand for further proceedings
because the circuit court failed to make the necessary findings
regarding entitlement to fees as a sanction and the amount of fees
and because the court failed to conduct an evidentiary hearing on
the amount of fees. On remand, if the circuit court makes findings
to support entitlement to attorney's fees under section 57.105(1),
the court should conduct an evidentiary hearing on the amount of
fees and make the required written findings to support the amount
awarded.
Reversed and remanded.
CASANUEVA and SMITH, JJ., Concur.
Opinion subject to revision prior to official publication.
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