JADE EVA MERRIMAN vs BRAIAN URIEL ADLER

• Court: District Court of Appeal of Florida
• Decided: May 13, 2022
• Docket: 21-2372
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

JADE EVA MERRIMAN,

Appellant,

v. Case No. 5D21-2372 LT Case No. 2018-DR-000147 BRAIAN URIEL ADLER,

Appellee. ________________________________/

Opinion filed May 13, 2022

Appeal from the Circuit Court for Flagler County, Christopher France, Judge.

Michael L. Duncan, of Duncan Trial & Mediation, Jacksonville, for Appellant.

Stacy Geiger and Andrea Burns, of Geiger Law, PLLC, Palm Coast, for Appellee.

WOZNIAK, J. Jade Eva Merriman (“Former Wife”) appeals the Amended Order on

Former Husband’s Motion for Civil Contempt and to Enforce Order on

Dissolution of Marriage in which the trial court resolved a number of issues and awarded Braian Uriel Adler (“Former Husband”) $1,500 in attorney’s

fees. Former Husband’s motion stemmed from Former Wife’s failure to

refinance the marital home within the twenty-four months required by the

parties’ marital settlement agreement and to make the payments on,

refinance, or sell the Honda Pilot, as agreed, resulting in its repossession.

Of the arguments Former Wife raises on appeal, we find merit in only her

contention that the trial court erred in awarding attorney’s fees to Former

Husband without the requisite findings of fact to support the amount of the

award.

While this Court’s review of the propriety of the trial court’s finding of

entitlement to fees is precluded by the lack of a transcript of the fee hearing,1

the absence of findings in the order to support the amount of fees awarded

is error on the face of the order that may be addressed on appeal, even

absent a transcript. See Duke v. Duke, 211 So. 3d 1078 (Fla. 5th DCA 2017)

(“The trial court’s failure to set forth specific findings about the hourly rate

and number of hours is error apparent from the face of the final judgment.”

1 See, e.g., Dood v. Dood, 268 So. 3d 254 (Fla. 2d DCA 2019) (holding absence of transcript precluded appellate review of sufficiency of evidence supporting entitlement to fees); Frezza v. Frezza, 216 So. 3d 758, 760 (Fla. 2d DCA 2017) (observing that specific findings of fact to support fee award can be made either in written final judgment or at hearing and thus absence of transcript prevented appellate court from determining trial court had erred in its entitlement determination).

2 (citation omitted)); Macarty v. Macarty, 29 So. 3d 434, 435 (Fla. 2d DCA

2010) (“[A]n award of attorney’s fees without adequate findings justifying the

amount of the award is reversible even where the appellant has provided an

inadequate record of the trial court proceedings.” (quoting Esaw v. Esaw,

965 So. 2d 1261, 1265 (Fla. 2d DCA 2007))); Hoffay v. Hoffay, 555 So. 2d

1309, 1310 (Fla. 1st DCA 1990) (“The presence of competent substantial

evidence to support the award does not obviate the need for such specific

findings.”). Because the order fails to include factual findings supporting the

amount of attorney’s fees awarded, we reverse the award of attorney’s fees

and remand to the trial court to make and set forth specific findings regarding

the reasonable hourly rate and the number of hours reasonably expended in

counsel’s representation of Former Husband. See Gilliland v. Gilliland, 266

So. 3d 866, 869 (Fla. 5th DCA 2019) (citations omitted). The remainder of

the order is affirmed.

AFFIRMED in part; REVERSED in part; REMANDED with instructions.

EDWARDS, J., concurs. SASSO, J., concurs and concurs specially, with opinion.

3 Case No. 21-2372 LT Case No. 2018-DR-000147 SASSO, J., specially concurring.

I concur in this court’s opinion reversing because I cannot meaningfully

distinguish this case from Duke v. Duke, 211 So. 3d 1078 (Fla. 5th DCA

2017). However, writing on a clean slate, I would conclude that the trial

court’s failure to include written findings in its order supporting the amount of

fees is not reversible error because Appellant has failed to provide a

transcript of the hearing or an acceptable substitute.

Typically, we would conduct a harmless error analysis in determining

whether the failure to make written findings is reversible error. See, e.g.,

Klette v. Klette, 785 So. 2d 562, 563 (Fla. 1st DCA 2001) (applying harmless

error to trial court’s failure to make findings in support of alimony award);

Vaughn v. Vaughn, 714 So. 2d 632, 633–34 (Fla. 1st DCA 1998) (applying

a harmless error analysis to trial court’s failure to make findings in support of

unequal division of marital assets). Here, though, we are unable to do so due

to the lack of transcript, so we would affirm. See, e.g., Nunes v. Nunes, 112

So. 3d 696, 700–01 (Fla. 4th DCA 2013) (observing that appellate courts will

not assume trial court error due to the lack of a transcript; the trial court may

have orally pronounced its findings); Lewis v. Lewis, 807 So. 2d 777, 778

(Fla. 1st DCA 2002) (court was precluded from applying harmless error

4 analysis to award of permanent periodic alimony, where neither transcript of

final hearing nor statement of proceedings was provided to the court and

there were no inconsistencies in final judgment).

But this court’s Duke opinion requires a different result. 2 In Duke, our

court characterized the failure to make written findings as to attorneys’ fees

“error apparent from the face of the final judgment” that requires reversal

even when an appellant provided an inadequate record of trial court

proceedings. Duke, 211 So. 3d at 1082. In Harris v. McKinney, 20 So. 3d

400 (Fla. 2d DCA 2009), Judge Davis specially concurred, explaining that

the rule our court perpetuated in Duke sprouted with the idea that the failure

to make express written findings in an attorneys’ fee award is fundamental

error. As Judge Davis stated:

The seminal case on this issue is Giltex Corp. v. Diehl, 583 So. 2d 734 (Fla. 1st DCA 1991). In that case, the trial court made an award of attorney’s fees pursuant to Rowe, 472 So. 2d 1145. However, the trial court failed to include in its order specific findings as to the reasonable number of hours expended and the reasonableness of the hourly rate charged. Additionally, the appellant failed to provide the appellate court with a transcript of the trial court proceedings. The First District reversed the fee

2 Weiand v. State, 732 So. 2d 1044, 1047 (Fla. 1999) (stating that a district court of appeal does not have the authority to overrule a decision of the Florida Supreme Court); In re Rule 9.331, Determination of Causes by a District Court of Appeal En Banc, Fla. Rules of Appellate Procedure, 416 So. 2d 1127, 1128 (Fla. 1982) (noting a three-judge panel of a district court should not overrule or recede from a prior panel’s ruling on an identical point of the law).

5 award, concluding that “[w]hile the lack of a transcript or stipulated statement might otherwise require affirmance, this rule is not applicable in this case because the trial court's order is fundamentally erroneous on its face for failure to make the express findings required by Rowe.” 583 So. 2d at 735.

As support for this conclusion, the First District cited Southeast Bank, N.A. v. David A. Steves, P.A., 552 So. 2d 292, 293 (Fla. 2d DCA 1989), in which this court quoted from In re Guardianship of Read, 555 So. 2d 869, 871 (Fla. 2d DCA 1989), as follows: “‘Where there is no record of the testimony of witnesses or of evidentiary rulings and where a statement of the record has not been prepared, a judgment which is not fundamentally erroneous on its face must be affirmed.’” However, neither Guardianship of Read nor Southeast Bank defines the term “fundamentally erroneous on its face.” The Giltex court nevertheless concluded- without explanation or citation to authority-that the order under review there was “fundamentally erroneous on its face for failure to make the express findings required by Rowe.” Giltex Corp., 583 So. 2d at 735.

Harris, 20 So. 3d at 406 (Davis, J., concurring). Judge Davis questioned

whether the evolution of this distinction was the intended result of Rowe,

especially where Rowe requires the trial court to make findings but does not

specify those findings must be in writing. Id.

In my view, there is nothing about the language in Rowe that requires

the rule our court adopted in Duke. And other than Duke, Appellant has

presented no other reason to suggest the omission of express written

findings in the context of attorneys’ fees constitutes fundamental error. So,

in the absence of Duke, I would conclude the error here is subject to the

harmless error test—a test we cannot conduct in the absence of a transcript.

6 As a result, I would affirm. See Esaw v. Esaw, 965 So. 2d 1261, 1264 (Fla.

2d DCA 2007) (“The most salient impediment to meaningful review of the

trial court’s decision is not the absence of findings, but the absence of a

transcript.”).