Bennett v. Berges
2010 Fla. App. LEXIS 18663
| Fla. Dist. Ct. App. | 2010Background
- This is an attorney’s fees appeal arising from an adversarial probate proceeding following a settlement about acceptability of a 2005 will and related assets.
- The trial court awarded fees against Bennet and Miller personally as a sanction for vexatious conduct, not pursuant to statutory entitlement.
- The 2006 settlement approved by the court was vacated due to changes, but the probate continued under the terms of the vacated settlement.
- Bennett, representing herself, opposed enforcement of the settlement and alleged misappropriation of assets from the profit-sharing plan.
- The court held a November 2008 hearing and a January 2009 hearing, finding vexatious conduct for unsubstantiated misappropriation claims and sanctioning the appellants.
- The court awarded $12,500 in fees (out of $15,990 requested) and all costs, but failed to make specific findings on hours or rate and assessed the entire amount personally against the appellants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Basis of fee award | Appellees rely on statutory fees under 733.106(3). | Fee award was a sanction, not statutory, so personal liability is permissible. | Fee award was sanction, not statutory entitlement. |
| Appropriateness of sanction | Appellants engaged in vexatious litigation by unverified assertions. | Some delay was caused by appellants’ defenses; sanctions may be appropriate. | Sanctions for vexatious conduct were within the court’s discretion. |
| Relation of the sanction to conduct | Fees should reflect only those incurred due to the sanctionable conduct. | The award should cover broader incurred fees for delay and enforcement efforts. | Fees were excessively broad and must be re-determined to reflect only sanctionable conduct. |
| Need for hour-by-hour and rate findings | Expert evidence supported a reasonable rate and hours. | The court can consider expert input but must specify hours and rate. | Remand to set proper hours and rate; lump-sum award improper. |
| Allowance of fees-on-fees and expert costs | Fees-on-fees and expert costs may be appropriate under sanctions. | Such awards must be tied to the sanctionable conduct and reasonable costs. | Permissible on remand, but limited to proportionate related costs. |
Key Cases Cited
- Moakley v. Smallwood, 826 So.2d 221 (Fla. 2002) (inherent authority to impose fees for bad faith; requires explicit findings)
- State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830 (Fla. 1993) (fees for litigating entitlement to fees but not the amount)
- Condren v. Bell, 853 So.2d 609 (Fla. 4th DCA 2003) (sanctions including expert fees may be upheld; time spent on fee issue can be compensated)
- Bates v. Islamorada, 939 So.2d 171 (Fla. 3d DCA 2006) (fees awarded as sanctions differ from statutory fee awards)
- Franklin v. Mascola, 711 So.2d 46 (Fla. 4th DCA 1998) (need for reasonable hourly rate and hours in fee awards)
- Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla. 1985) (reasonableness of fees and careful factual findings)
- Allegheny Cas. Co. v. Roche Sur., Inc., 885 So.2d 1016 (Fla. 5th DCA 2004) (inequitable conduct requires express bad faith finding and related fees)
- Dep’t of Children & Families v. M.G., 838 So.2d 703 (Fla. 5th DCA 2003) (continuance on eve of trial supports sanctions; fees incurred due to delay may be sanctioned)