final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Mark A. Speiser, Judge; L.T. Case No. PRC
Charles D. Franken of Franken & Lacher, P.A., Plantation,
Tieesha N. Taylor of Elderly Care Law Firm, Miami, for
appellee Sharon Hicks.
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.
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.
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
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
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
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.
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.
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).
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