Third District Court of Appeal
State of Florida
Opinion filed August 10, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-0988
Lower Tribunal No. 16-1219
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The Shir Law Group, P.A., et al.,
Appellants,
vs.
Dario Carnevale, et al.,
Appellees.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Veronica Diaz, Judge.
ADR Miami, LLC, and Juan Ramirez, Jr.; Robert E. Menje, PLLC, and
Robert E. Menje (Okeechobee), for appellants.
Dario Carnevale and Flavia Carnevale, in proper persons.
Before LOGUE, LINDSEY, and GORDO, JJ.
PER CURIAM.
Appellants, The Shir Law Group, P.A.; Guy M. Shir; Stuart J. Zoberg;
ZTJ Recovery, Inc.; and Jodi Shir (the “Shir Defendants”), appeal an order
imposing attorneys’ fees in the amount of $17,150 against them as a
sanction. Because the trial court did not provide adequate notice and an
opportunity for an evidentiary hearing prior to entering its sanction order, we
reverse.
I. BACKGROUND
In May of 2019, the Shir Defendants filed a “Motion for An Order to
Show Cause Why Javier A. Lopez, Esq. Should Not Be Held in Indirect
Criminal Contempt for His Acts and Violations of a Confidentiality Order.”
Specifically, the Shir Defendants alleged Mr. Lopez disclosed the contents
of confidential settlement agreements in violation of a court order.
In response, almost two years later, in January of 2021, Flavia
Carnevale and Dario Carnevale (the “Carnevales”) filed a “Cross Motion for
Sanctions Against Robert Menje for Litigation Misconduct, Order to Conduct
Himself in a Civil and Professional Manner, and Referral to the Florida Bar.”1
Four days later, the trial court conducted a hearing on the two motions. In
denying both motions, the trial court made the following findings:
1
Mr. Lopez represents the Carnevales, and Mr. Menje represents the Shir
Defendants. Mr. Lopez claims he did not move for sanctions pursuant to
section 57.105, Florida Statutes.
2
The evidence that has been presented to the Court show[s]
that the Shir Lawyers and the co-litigants and all their lawyers
disclosed the information in the public record prior to Mr. Lopez
doing so.
....
There is no way that a court can find that someone should
be held in contempt for -- I’m sorry, held in indirect criminal
contempt when there was no violation of any court order.
There was no violation of any court order in this case, and
while I understand that the parties, the litigants themselves, the
attorneys in this case are very passionate about the issue, at the
end of the day, we are all human beings first and we owe each
other a certain level of respect. If we cannot act with respect,
then it’s not just our profession, but humanity overall that loses.
It’s not okay.
The motion will be denied, as well as the cross-motion for
sanctions against Mr. Menje.
....
In denying the motion for the order to show cause, I am
finding that the motion should have been withdrawn as it is
absolutely clear on its face that there was no violation, as there
could not have been a violation when something was already
public.
We have spent a lot of time on this issue and the Court will
find that because the motion was not based in any -- it was not
supported by any law or by any factual allegations, the Court will
find that the Shir defendants -- and I know that everyone is
familiar with who that means -- the Shir defendants will be
required to pay Mr. Lopez attorney’s fees in connection with the
defense of this motion and the presentation for today.
....
3
. . . But in any event, at that point, I’m allowing -- I’m
granting fees because at that point it became clear, this was not
an issue of legal. This was an issue of personalities and that’s
just not acceptable.
So the Court will grant Mr. Lopez 10 hours -- 14 hours for
his time at a rate of 675, and 14 hours for Mr. Criste’s time at the
rate of 550, and that will be to the Shir defendants.[2]
The trial court’s order entered on March 21, 2021, reads, in pertinent
part:
The evidence presented to the Court illustrates that the Shir
Defendants had violated the Honorable Judge Bronwyn Miller’s
May 4, 2015 Confidentiality Order which stated in part, “The
restrictions set forth in any of the preceding paragraphs shall not
apply, on the Court’s finding, as to any information that: . . .
becomes published or in the public domain through actions not
attributable to the receiving party.” May 4, 2015 Order at
Paragraph 6(d). Because the Shir Defendants had already
disclosed the information they seek to impute upon Mr. Lopez’
alleged violation of the Confidentiality Order, it is clear that the
Defense should have withdrawn the Show Cause Motion.
The Shir Defendants are ordered to pay, as a sanction, for
14 hours of Mr. Lopez’s time at a rate of $675.00 an hour, and
14 hours of Mr. Criste’s time at a rate of $550.00 an hour (a total
amount of $17,150.00), within 30 days from the date of this
Order.
This sanction is entered because the Court specifically
finds that the Shir Defendants caused the unnecessary litigation
of the Show Cause Motion.
2
Mr. Lopez requested this amount, and stated, “[o]ur firm has probably spent
about 50 hours on this, but what I was asking for was 10 hours of my time
and 10 hours of John Criste’s time, and today we have been on since noon,
so we’re at four hours, so that’s 14 and 14. My billable rate is 675 and John
Criste’s rate is 550.”
4
This appeal followed.
II. STANDARD OF REVIEW
A trial court’s imposition of sanctions for bad faith conduct is reviewed
for abuse of discretion. Goldman v. Est. of Goldman,
166 So. 3d 927, 929
(Fla. 3d DCA 2015) (citing Boca Burger, Inc. v. Forum,
912 So. 2d 561, 573
(Fla. 2005)). Discretion is abused where no reasonable man would take the
view adopted by the trial court. Canakaris v. Canakaris,
382 So. 2d 1197,
1203 (Fla. 1980) (quoting Delno v. Mkt. St. Ry. Co.,
124 F.2d 965, 967 (9th
Cir. 1942)). To the extent the trial court’s ruling was based on its
interpretation of the law, the Court reviews the issue de novo. Diaz v.
Kasinsky,
306 So. 3d 1065, 1067 (Fla. 3d DCA 2020).
III. ANALYSIS
The Shir Defendants argue the trial court failed to hold an evidentiary
hearing prior to concluding that an attorneys’ fee award was warranted and
that the trial court erred in its calculation of attorneys’ fees.
A trial court possesses the inherent authority to impose attorneys’ fees
against an attorney for bad faith conduct. Moakley v. Smallwood,
826 So.
2d 221, 226 (Fla. 2002). “The inherent authority of the trial court, like the
power of contempt, carries with it the obligation of restrained use and due
process.”
Id. at 226-27. Accordingly, the trial court must make express
5
findings of bad faith and provide the attorney notice and an opportunity to be
heard before imposing the attorneys’ fees.
Id. at 227. “[T]he amount of the
award of attorneys’ fees must be directly related to the attorneys’ fees and
costs that the opposing party has incurred as a result of the specific bad faith
conduct of the attorney.
Id. “Finally, if a specific statute or rule applies, the
trial court should rely on the applicable rule or statute rather than on inherent
authority.”
Id. (citing Chambers v. Nasco, Inc.,
501 U.S. 32, 50 (1991)
(“Furthermore, when there is bad-faith conduct in the course of litigation that
could be adequately sanctioned under the Rules, the court ordinarily should
rely on the Rules rather than the inherent power. But if in the informed
discretion of the court, neither the statute nor the Rules are up to the task,
the court may safely rely on its inherent authority.”)).
Here, at the conclusion of the January 2021 hearing, the trial court
denied both motions for sanctions. And, on its own initiative, the trial court
stated that “the Court will find that the Shir defendants . . . will be required to
pay Mr. Lopez attorney’s fees in connection with the defense of this motion
and the presentation for today.”
Then, in March of 2021, the trial court entered a written order
sanctioning the Shir Defendants and directing them to pay $17,150.00 in
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attorneys’ fees as a sanction within 30 days. 3 In the order, the trial court
explained that its “sanction [was] entered” based on the “specific[] find[ing]
that the Shir Defendants caused the unnecessary litigation of the” contempt
motion. In other words, while both sides moved to sanction each other’s
counsel, the trial court, on its own initiative sanctioned the Shir Defendants.
As stated above, although the trial court possesses the inherent
authority to impose attorneys’ fees for bad faith conduct, the trial court must
provide notice and an opportunity to be heard and present evidence prior to
entering the sanction. See Moakley,
826 So. 2d at 226-27. The trial court’s
failure to allow notice and a hearing prior to entering the sanction order is
violative of the Shir Defendants’ due process rights. See
id. at 227
(explaining that the inherent authority of the trial court carries with it the
obligation of restrained use and due process); see also Davidson v. Ramirez,
970 So. 2d 855 (Fla. 3d DCA 2007) (reversing trial court’s sanction of
attorneys’ fees where adequate notice was not given prior to entering the
sanction.); Santini v. Cleveland Clinic Fla.,
65 So. 3d 22, 36 (Fla. 4th DCA
2011) (explaining that the trial court was required, as a matter of due
process, to hold a full evidentiary hearing prior to imposing sanctions).
3
Notably, the trial court issued sanctions against the Shir Defendants, not
Mr. Menje.
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IV. CONCLUSION
Accordingly, because the trial court did not provide notice and an
opportunity for an evidentiary hearing prior to entering its sanction order, we
reverse. See Moakley,
826 So. 2d at 226-27. As such, we need not opine
on the sufficiency of the trial court’s findings or the calculation of the award
of attorneys’ fees.
Reversed and remanded.
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