DANIEL PANSKY
v.
VICTORIA PANSKY
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Daniel Pansky appeals a circuit court order awarding sanctions against him under Florida Statute § 57.105(1) for filing a meritless motion to vacate. The appellate court affirmed the finding that Pansky's motion was meritless but reversed the sanctions award amount because it was determined without competent evidence.
The court affirmed that Pansky's third motion to vacate was meritless and that sanctions were appropriate, but reversed the sanctions award amount because it was based exclusively on unsworn oral argument and billing records that were not admitted into evidence. The case was remanded for an evidentiary hearing to properly determine the sanctions amount.
[1] The amount of attorney's fees awarded under section 57.105, Florida Statutes must be supported by competent evidence such as admitted invoices, records detailing services…
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Join FLexlaw to unlock all legal intelligence“A finding that a party is entitled to recover attorney's fees under section 57.105 must be based upon substantial, competent evidence presented at the hearing on attorney's fees or otherwise before the court and in the record.”
Court's statement of the governing legal standard for attorney's fee awards in sanctions cases.
Pansky filed a third motion to vacate in a case before the circuit court. The Law Firm of Barry S. Franklin & Associates moved for sanctions under § 5…
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Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Timothy L. Bailey, Judge; L.T. Case No. 062012DR013820AXXXCE.
Troy William Klein, West Palm Beach, for appellant. Barry S. Franklin of Barry S. Franklin & Associates, P.A., Aventura, for appellee.
KUNTZ, J. Daniel Pansky appeals the circuit court’s final order granting the Law Firm of Barry S. Franklin & Associates, P.A.’s motion for sanctions under section 57.105(1), Florida Statutes (2015). Because the record supports the court’s finding that Mr. Pansky’s third motion to vacate was meritless, we affirm in part. Yet we agree that the court erred when it determined the amount of fees to award the Law Firm without receiving any testimony or other evidence. Thus, we reverse in part.
“A finding that a party is entitled to recover attorney’s fees under section 57.105 must be based upon substantial, competent evidence presented at the hearing on attorney’s fees or otherwise before the court and in the record.” Mason v. Highlands Cty. Bd. of Cty. Comm’rs, 817 So. 2d 922, 923 (Fla. 2d DCA 2002) (citing Strothman v. Henderson Mental Health Ctr., Inc., 425 So. 2d 1185, 1185–86 (Fla. 4th DCA 1983)).
Here, the court determined the amount of sanctions to award the Law Firm based exclusively on argument of counsel. Although counsel provided a copy of certain billing records, those records were not admitted into evidence. As a result, the billing records were not competent evidence to support the court’s determination of the amount of sanctions. See, e.g., Diwakar v. Montecito Palm Beach Condo. Ass’n, Inc., 143 So. 3d 958, 960 (Fla. 4th DCA 2014) (“Competent evidence includes invoices, records and other information detailing the services provided as well as the testimony from the attorney in support of the fee.” (quoting Brewer v. Solovsky, 945 So. 2d 610, 611 (Fla. 4th DCA 2006))); Chandler v. KCCS, Inc., 224 So. 3d 929, 929 (Fla. 2d DCA 2017) (reversing amount of sanctions fees awarded where “the only evidence detailing the work actually completed consisted of an affidavit and related documents that were neither introduced into evidence nor stipulated to at the hearing”).1 The court’s final order is affirmed in part and reversed in part, and we remand the case for the limited purpose of holding an evidentiary hearing to determine the amount of sanctions to be awarded.
Affirmed in part and reversed in part. TAYLOR and CONNER, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing.
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Authorities Cited
- Diwakar v. Montecito Palm Beach Condo. Ass'n, Inc., 143 So. 3d 958 (Fla. 4th DCA 2014)
- Marcellus M. Mason, Jr. v. Highlands Cnty. Bd. OF Cnty. Comm'rs, 817 So. 2d 922 (Fla. 2d DCA 2002)
- Strothman v. Henderson Mental Health Ctr., Inc., 425 So. 2d 1185 (Fla. 4th DCA 1983)
- Brewer v. Solovsky, 945 So. 2d 610 (Fla. 4th DCA 2006)
- Brown v. The Sch. Bd. OF Palm Beach Cnty., 855 So. 2d 1267 (Fla. 4th DCA 2003)
- Jaques v. State, 224 So. 3d 929 (Fla. 2d DCA 2017)
- Chandler v. KCCS, Inc., 224 So. 3d 929 (Fla. 2d DCA 2017)