5D04-3946 Sunset Park Church of God v. Gay

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D04-3946

Case Date: 11/14/2005

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2005

SUNSET PARK CHURCH OF GOD, INC., Appellant/Cross-Appellee, v. Case No. 5D04-3946

LAWTON GAY, Appellee/Cross-Appellant. ____________________________________/ Opinion filed November 18, 2005. Appeal from the Circuit Court for Sumter County, Hale R. Stancil, Judge. Scott S. Katz and Anthony J. Russo, of Butler, Pappas, Weihmuller, Katz and Craig, LLP,Tampa, for Appellant/Cross-Appellee. Steven J. Guardiano, Daytona Beach, for Appellee/Cross-Appellant.

THOMPSON, J. Sunset Park Church ("Sunset") appeals as insufficient the trial court's amended order1 finding a complete absence of justiciable issues and awarding Sunset $10,000 attorney's fees pursuant to section 57.105, Florida Statutes (2003). Gay, arguing that

The trial court amended the order finding that Gay's attorney acted in "good faith" as defined by section 57.105, Florida Statutes (2003), and was therefore not liable for the attorney's fees and costs incurred by Sunset.

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his claim was supported by the application of the law to the facts, cross appeals the award of fees. Sunset contends that the trial court erred because the award was made without requisite findings as to the number of hours reasonably expended and the reasonable hourly rate. We agree and reverse. The award of attorney's fees arose out of a dispute concerning Lawton Gay's attempt to purchase land from Sunset. The trial court found that there was no contract for the sale of the property and that Gay knew this at the commencement of the lawsuit. The trial court concluded that Gay's answer, defenses, and counterclaim were frivolous. Therefore, Sunset was entitled to attorney's fees and costs. At the hearing on

attorney's fees and costs, Sunset's attorney presented evidence to prove that his firm billed Sunset $30,000 in attorney's fees based upon 140 hours and an hourly rate of $235 or less. The attorney also presented evidence that it expended $320.43 in costs. The trial court disagreed that the hourly rate was reasonable for the county where the litigation was pending and entered a total judgment for $10,000, with no findings of fact. We affirm the determination that Sunset is entitled to attorney's fees and costs; however, we reverse and remand so the trial court can comply with the procedures outlined in Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), to assess section 57.105 fees. The order awarding attorney's fees contains no findings of fact. Thus we cannot determine how the trial court awarded $10,000. Under Rowe, the trial court must clearly articulate the basis for the fee. Key West Polo Club

Developers, Inc. v. Towers Constr. Co., 589 So. 2d 917 (Fla. 3d DCA 1991); see also

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Daniels v. Reeves, 712 So. 2d 839 (Fla. 1st DCA 1998); Fernandez v. Chiro Risk Management, Inc., 700 So. 2d 65 (Fla. 2d DCA 1997). AFFIRMED in part; REVERSED in part, and REMANDED with directions.

MONACO, J., concurs. SHARP, W. J., concurs specially, with opinion.

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CASE NO. 5D04-3946 SHARP, W., J., concurring specially. I agree with the majority opinion, which reverses the attorney fee awarded by the trial court pursuant to section 57.105. The trial court failed to state the basis for its award and failed to make findings to support its award for the services provided by counsel. The statute does not leave this to the court's gut feeling about what an

appropriate sanction would be in a particular case for presenting a claim or defense which was not supported by the material facts necessary to establish it, or which would not be supported by the application of then-existing law to the material facts.

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