DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
REGINALD HICKS, former guardian,
Appellant,
v.
SHARON HICKS, successor guardian
and ELGIN POLO, accountant,
Appellees.
No. 4D19-340
[November 20, 2019]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Mark A. Speiser, Judge; L.T. Case No. PRC 07-5967.
Charles D. Franken of Franken & Lacher, P.A., Plantation, for
appellant.
Tieesha N. Taylor of Elderly Care Law Firm, Miami, for appellee Sharon
Hicks.
LEVINE, C.J.
A former guardian appeals an order holding him in indirect civil
contempt. The former guardian failed to comply with court orders
requiring him to file a final guardianship report. The court order required
the former guardian to pay $3,500 in attorney’s fees and $13,784.88 in
forensic accountant fees. We reverse the award of attorney’s fees because
the trial court failed to (1) make the requisite finding of “bad faith,” (2) link
the “bad faith” conduct to the attorney’s fees incurred by the opposing
party, and (3) take testimony and make findings as to the reasonable hours
and hourly rate of the opposing party’s counsel. As to the award of
accounting fees, we affirm, finding the former guardian’s appeal on this
issue to be without merit. Finally, we reverse the portion of the order
requiring incarceration if the purge amount is not paid because the trial
court failed to make the requisite finding of present ability to pay.
Reginald Hicks (“guardian”) acted as the guardian for his mother.
During the guardianship, the guardian failed to comply with several court
orders, including failure to place the ward’s property in a restricted
account; failure to file annual plans, annual accountings, and inventories;
and failure to complete a guardian education course.
The guardian’s sister, Sharon Hicks (“sister”), petitioned the trial court
to retain a forensic accountant. The court granted the petition and ordered
that the guardian pay for the accountant’s services. The guardian
repeatedly refused to provide information requested by the accountant and
failed to pay the accountant, resulting in multiple orders of contempt,
enforcement, and sanctions. The trial court ultimately entered an order
removing the guardian and directing him to file the final guardianship
report. When the guardian failed to file the final guardianship report, the
trial court entered additional orders for sanctions and contempt.
Meanwhile, the forensic accountant filed a report, finding “significant
differences” between the income reported to the IRS and income deposited
into the ward’s account. Thereafter, the sister moved for contempt,
requesting that the court compel the guardian to produce the final
guardianship report as well as grant sanctions and attorney’s fees. The
sister also petitioned for an order compelling the guardian to pay
$13,784.88 in forensic accountant fees.
After consulting with the guardian regarding his availability, the sister
noticed a hearing on the motion for contempt and petition for accounting
fees. Despite confirming the guardian’s availability, he failed to appear at
the hearing. The sister filed a motion for rule to show cause why the
guardian should not be held in contempt for failing to file the final
guardianship report and failing to appear at the hearing.
After a hearing, the trial court found the guardian in indirect civil
contempt for failing to comply with orders directing him to file the final
guardianship report. The trial court directed the guardian to pay $3,500
in attorney’s fees and $17,284.88 in forensic accounting fees. The order
admonished that the guardian’s failure to comply would result in
incarceration with a purge amount of $17,284.88. From this order, the
guardian appeals.
The guardian argues that the trial court erred in awarding attorney’s
fees because it failed to make a specific finding of “bad faith” and failed to
show that the attorney’s fees were related to that “bad faith” conduct. The
guardian further argues that the trial court failed to take any expert
testimony or make any findings as to the reasonable number of hours and
hourly rate. We agree.
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“A trial judge’s decision to impose sanctions for bad faith litigation
conduct is reviewed under an abuse of discretion standard.” Bennett v.
Berges, 50 So. 3d 1154, 1159 (Fla. 4th DCA 2010). “[A]n 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).
A trial court possesses inherent authority to award attorney’s fees and
costs for bad faith conduct against a party. Moakley v. Smallwood, 826
So. 2d 221, 224 (Fla. 2002). This inherent authority, known as the
“inequitable conduct doctrine,” “is reserved for those extreme cases where
a party acts in bad faith, vexatiously, wantonly, or for oppressive reasons.”
Id. (citations and quotation marks omitted). However, any such award by
the trial court “must be based upon an express finding of bad faith conduct
and must be supported by detailed factual findings describing the specific
acts of bad faith conduct that resulted in the unnecessary incurrence of
attorneys’ fees.” Id. at 227; see also Ochalek v. Rivera, 232 So. 3d 1050,
1053 (Fla. 4th DCA 2017) (reversing and remanding for further
proceedings because “the trial court failed to make an express finding of
bad faith conduct”). Although the magic words “bad faith” are not
necessary, the trial court must use equivalent language to describe the
sanctionable conduct. See Robinson v. Ward, 203 So. 3d 984, 990 (Fla.
2d DCA 2016) (affirming award of attorney’s fees as a sanction where the
trial court set forth a list of eight instances of improper conduct and
specifically concluded that defense counsel’s actions were “‘improper and
deliberate,’ had resulted in a miscarriage of justice, and had solely and
directly caused [appellee] ‘to incur additional time and expense of
relitigating a trial’”).
In the instant case, the trial court’s order is insufficient on its face to
support the fee award. Significantly, the trial court did not make the
requisite express finding of “bad faith” conduct. Moakley, 826 So. 2d at
224; Bennett, 50 So. 3d at 1159. In its order, the trial court found that
the guardian failed to comply with court orders to file the guardianship
report and failed to appear at a hearing. The trial court also noted that
the forensic accountant testified regarding discrepancies between the
income on the annual guardianship accounts and income reported to the
IRS. Absent from the trial court’s order were any findings of “bad faith” or
“sanctionable conduct.”
Nor did the order show how any bad faith conduct by the guardian
directly caused the sister to incur $3,500 in attorney’s fees. “[A]n award
of fees as a sanction must be directly related to the attorney’s fees and
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costs that the opposing party has incurred as a result of the specific bad
faith conduct.” Bennett, 50 So. 3d at 1160; Moakley, 826 So. 2d at 224.
Even the sister effectively concedes error and “confess[es] that the purpose
of the funds is not clear from the order.”
The trial court also failed to take testimony and make findings as to the
reasonable hours and hourly rate of the sister’s counsel. In awarding
attorney’s fees, a trial court must set forth specific findings, predicated on
expert testimony, as to the hourly rate and number of hours reasonably
expended. Fla. Patient’s Comp. Fund v. Rowe, 472 So. 2d 1145, 1151-52
(Fla. 1985); Mitchell, 94 So. 3d at 707. The same rule applies with respect
to an award of attorney’s fees as a sanction. Rakusin v. Christiansen &
Jacknin, P.A., 863 So. 2d 442, 445 (Fla. 4th DCA 2003). The sister also
concedes error in the trial court’s failure to include the lodestar.
Finally, reversal is also required because the trial court failed to make
an affirmative finding that the guardian had the present ability to pay the
purge amount. See St. Onge v. Carriero, 252 So. 3d 1280, 1282 (Fla. 1st
DCA 2018). “[T]he key safeguard in civil contempt proceedings is a finding
by the trial court that the contemnor has the ability to purge the
contempt.” Parisi v. Broward Cty., 769 So. 2d 359, 365 (Fla. 2000). Thus,
“[b]efore a court can enforce an order of contempt, it must first determine,
by competent substantial evidence, that the contemnor has the present
ability to pay from some available asset.” Whitby v. Infinity Radio, Inc., 961
So. 2d 349, 354 (Fla. 4th DCA 2007). Accordingly, we reverse the portion
of the order providing for the guardian’s incarceration without prejudice
for the trial court to reimpose incarceration should competent evidence
support the guardian’s present ability to pay any purge amount.
In sum, we affirm the award of accounting fees, reverse the award of
attorney’s fees, reverse the incarceration portion of the contempt order,
and remand for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
CONNER and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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