DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
WANDA I. RUFIN, P.A., and WANDA I. RUFIN,
Appellants,
v.
ALICIA MARIA BORGA and MARCO AURELIO PEREZ,
Appellees.
No. 4D19-491
[February 26, 2020]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Nicholas R. Lopane, Judge; L.T. Case No. 12-08235
FMCE.
Wanda I. Rufin of Wanda I. Rufin, P.A., Miami, for appellants.
No brief filed for appellees.
LEVINE, C.J.
Wanda Rufin, an attorney, appeals the order requiring her to pay
opposing counsel $3,900 in attorney’s fees as a sanction for her conduct
during the dissolution proceeding below. Because this issue was not
noticed for hearing, we reverse and remand.
Rufin represented the husband below in a dissolution proceeding. After
the final judgment of dissolution of marriage, the wife’s attorney served a
notice of hearing on Rufin, notifying her of a hearing to address only two
matters: (1) the wife’s motion for attorney’s fees based on her need and the
husband’s ability to pay, and (2) the wife’s motion for contempt against the
husband due to his failure to comply with a request for production.
Significantly, the notice of hearing made no mention that any attorney’s
fees would be sought against Rufin personally as a sanction.
During the hearing, and after the trial court granted the wife’s motion
for attorney’s fees, the wife’s counsel requested that the court award
attorney’s fees as a sanction against Rufin personally. The trial court
granted the request and ordered Rufin to pay $3,900 in attorney’s fees as
a sanction for her bad faith conduct. Rufin appeals, claiming a violation
of her fundamental right to due process.
The United States and Florida Constitutions guarantee due process of
law. U.S. Const. amend. XIV, § 1; Fla. Const. art. I, § 9. “The denial of
due process rights, including the opportunity to be heard, to testify, and
to present evidence, is fundamental error.” Weiser v. Weiser,
132 So. 3d
309, 311 (Fla. 4th DCA 2014).
“A trial court possesses inherent authority to award attorney’s fees and
costs for bad faith conduct against a party.” Hicks v. Hicks,
284 So. 3d
576, 578 (Fla. 4th DCA 2019). Although the trial court has this authority,
the trial court still has the obligation to provide due process. Moakley v.
Smallwood,
826 So. 2d 221, 226-27 (Fla. 2002). Accordingly, such a
sanction is appropriate only after notice and an opportunity to be heard.
Id. at 227.
In the instant case, the trial court denied Rufin due process. The notice
of hearing stated that only two matters would be addressed: (1) the wife’s
motion for attorney’s fees against the husband, and (2) the wife’s motion
for contempt against the husband. Nothing in the notice of hearing put
Rufin on notice that the court would consider attorney’s fees as a sanction
against her personally at the hearing. “A trial court violates a party’s due
process rights when it expands the scope of a hearing to address and
determine matters not noticed for hearing.” Rodriguez v. Santana,
76 So.
3d 1035, 1037 (Fla. 4th DCA 2011) (citation and internal quotation marks
omitted); see also Williams v. Primerano,
973 So. 2d 645, 647 (Fla. 4th DCA
2008) (“A trial court cannot determine matters not noticed for hearing or
award relief not sought by the pleadings.”).
Because the trial court imposed the attorney’s fees sanction without
notice and opportunity to be heard, we reverse and remand. 1 See Rickard
v. Bornscheuer,
937 So. 2d 311, 311 (Fla. 4th DCA 2006) (reversing where
trial court imposed personal sanctions against attorney without adequate
notice and opportunity to be heard).
Reversed and remanded.
MAY and GERBER, JJ., concur.
1 We offer no opinion on the merits of the imposition of attorney’s fees as a
sanction. The motion for sanctions may be considered as long as the
requirements of due process are followed.
2
* * *
Not final until disposition of timely filed motion for rehearing.
3
