FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Marion County, Lisa D. Herndon,
Michael V. Laurato, Kimberly Hendee and Hannah E. Austin, of
Austin & Laurato, PA, Tampa, for Appellant.
E. Samis, of Traub Lieberman Straus & Shrewsberry LLP,
St. Petersburg, for Appellee.
sinkhole case, Austin & Laurato, P.A. ("Law
Firm") appeals the final judgment on entitlement to
attorney's fees that the trial court entered in favor of
State Farm Florida Insurance Company ("State Farm")
as a sanction for filing a frivolous complaint under section
57.105(1), Florida Statutes (2012). The final judgment
imposed attorney's fees jointly and severally against Law
Firm and its client, Armelle Cleophat.We reverse.
awarding attorney's fees as a sanction under section
57.105(1) for raising frivolous claims or defenses are
reviewed for an abuse of discretion. Jean-Pierre v.
Glaberman, 192 So.3d 613, 613 (Fla. 4th DCA 2016)
(quoting Lago v. Kame By Design, LLC, 120 So.3d 73,
74 (Fla. 4th DCA 2013)). Under this standard, "[i]f
reasonable men could differ as to the propriety of the action
taken by the trial court, then the action is not unreasonable
and there can be no finding of an abuse of discretion."
Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.
57.105(1) permits a prevailing party to seek an award of
attorney's fees, including prejudgment interest, against
the losing party and the losing party's attorney in equal
amounts if the court finds that the losing party and its
attorney knew or should have known that the claim or defense
"[w]as not supported by the material facts necessary to
establish the claim or defense" or "[w]ould not be
supported by the application of then-existing law to those
material facts." However, monetary sanctions may not be
awarded "if the court determines that the claim or
defense was initially presented to the court as a good faith
argument for the extension, modification, or reversal of
existing law or the establishment of new law, as it applied
to the material facts, with a reasonable expectation of
success." § 57.105(3)(a), Fla. Stat. (2012). A
trial court's findings on imposing attorney's fees as
a sanction under section 57.105(1) must "be based upon
substantial competent evidence presented to the court at the
hearing on attorney's fees or otherwise before the court
and in the trial record." Blue Infiniti, LLC v.
Wilson, 170 So.3d 136, 140 (Fla. 4th DCA 2015) (quoting
Montgomery v. Larmoyeux, 14 So.3d 1067, 1073 (Fla.
4th DCA 2009)).
order awarding attorney's fees as a sanction under
section 57.105(1) "must include findings by the trial
court to support the award." Goldberg v. Watts,
864 So.2d 59, 60 (Fla. 2d DCA 2003) (citing Mason v.
Highlands Cty. Bd., 817 So.2d 922, 923 (Fla. 2d DCA
2002)). "[T]he trial court must find that there were no
justiciable issues of law or fact and that the losing
party's attorney did not act in good faith based on the
representations of his or her client." Siegel v.
Rowe, 71 So.3d 205, 211 (Fla. 2d DCA 2011) (quoting
Weatherby Assocs., Inc. v. Ballack, 783 So.2d 1138,
1143 (Fla. 4th DCA 2001)). Findings are also required to
justify the amount of attorney's fees awarded in the
case. Jackson v. Jackson, 177 So.3d 639, 641 (Fla.
2d DCA 2015) (citing Perez v. Perez, 100 So.3d 769,
771 (Fla. 2d DCA 2012)). These findings cannot be made by the
appellate court, and, in their absence, the case must be
remanded to the trial court for it to make the findings.
Boca Burger, Inc. v. Forum, 912 So.2d 561, 569 (Fla.
2005) (quoting Kurzweil v. Larkin Hosp. Operating
Co., 684 So.2d 901, 903 (Fla. 3d DCA 1996)).
the order on entitlement to attorney's fees contains a
recitation of the facts of the case, but only two findings
related to sanctions. The first, in paragraph 14, was that
after the motion for sanctions was served on them, Cleophat
and Law Firm "refused to take corrective action and
pursued the lawsuit without pause." The second, found in
paragraph 18, was that "the [p]laintiff and her
attorneys failed to show any good faith basis for the
action." Standing alone, such findings are insufficient
to assess attorney's fees against an attorney for the
losing party as there must also be a finding that counsel
knew or should have known at the time the complaint was filed
that the claims against State Farm were not supported by
material facts necessary to establish the claims or were not
supported by the application of then-existing law to the
material facts.  See Ballack, 783 So.2d at 1143.
The trial court must also consider whether the claim was
"initially presented to the court as a good faith
argument for the extension, modification, or reversal of
existing law or the establishment of new law" because
such a finding would preclude sanctions under section 57.105.
See § 57.105(3)(a), Fla. Stat.
we are unwilling to conclude that the trial court abused its
discretion in awarding attorney's fees to State Farm as a
sanction, see Canakaris, 382 So.2d at 1203 ("In
reviewing a true discretionary act, the appellate court must
fully recognize the superior vantage point of the trial judge
and should apply the 'reasonableness' test to
determine whether the trial judge abused his
discretion."), we are compelled to reverse because the
trial court failed to make the requisite factual findings in
its order. The trial court also erred in imposing joint and
several liability on Law Firm and Cleophat as, under these
circumstances, each could only be responsible for fifty
percent of the attorney's fees sanction. See
§ 57.105(1), Fla. Stat.
Accordingly, we reverse the order on entitlement to
attorney's fees and the final judgment entering
attorney's fees jointly and severally against Law Firm
and Cleophat, and remand for further
BERGER, J., and PAULK, G. T, ...