Levine v. Keaster

862 So. 2d 876, 2003 WL 22959620
CourtDistrict Court of Appeal of Florida
DecidedDecember 17, 2003
Docket4D03-648
StatusPublished
Cited by10 cases

This text of 862 So. 2d 876 (Levine v. Keaster) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Levine v. Keaster, 862 So. 2d 876, 2003 WL 22959620 (Fla. Ct. App. 2003).

Opinion

862 So.2d 876 (2003)

Julie LEVINE, Appellant,
v.
Herbert KEASTER, Appellee.

No. 4D03-648.

District Court of Appeal of Florida, Fourth District.

December 17, 2003.

*878 James A. Herb of Herb & Mednick, P.A., Boca Raton, for appellant.

Michael J. Lavery of Michael J. Lavery, P.A., Boynton Beach, for appellee.

ROSENBERG, ROBERT A., Associate Judge.

This unnecessarily contentious (and convoluted) matter is before this court on issues related to attorneys' fees.[1] This court has jurisdiction pursuant to Florida Rules of Appellate Procedure 9.030(b)(1)(A) and 9.110(a)(1).

Herbert Keaster, appellee, filed suit against Julie Levine, appellant, alleging *879 causes of action for the unauthorized recording, use, and disclosure of private telephone conversations. A default was entered against Levine. Levine subsequently filed a Motion to Quash Service of Process and Set Aside Default. Attached to the motion was an affidavit alleging that she did not reside at the New Jersey address where service of process was made. The trial court denied the motion without prejudice and scheduled an evidentiary hearing. Levine appealed the trial court's order (case number 4D02-1939).[2] This court relinquished jurisdiction for the subsequent evidentiary hearing.

Keaster, while the appeal was pending, filed a Motion to Strike/Motion for Contempt in the trial court alleging that Levine had perjured herself in the affidavit. On August 14, 2002, the trial court held a hearing on the motion. At the hearing, the trial court learned that Levine's attorney had communicated with her at the New Jersey address where service was made. This contradicted Levine's statement in her affidavit that she did not reside, and moreover, never resided at that address. The trial court issued an Order To Show Cause why she should not be held in civil contempt and be sanctioned. A hearing was held on October 10, 2002, but Levine failed to appear. On October 29, 2002, the court entered an Order holding Levine in civil contempt and imposing attorneys' fees, costs and sanctions. The Order states as follows: "Defendant Julie Levine failed to attend the hearing or present any credible firsthand evidence to justify her conduct with regard to submitting a perjured Affidavit to this Court." In addition, the trial court determined that Keaster was entitled to attorneys' fees and costs, and placed a $1,000 sanction on Levine.

Levine filed a Supplemental Notice of Appeal of a Non-Final Order in Case No. 4D02-1939, appealing the October 29, 2002 order. This court dismissed that appeal but left the original appeal pending. Levine then filed a motion for rehearing of the October 29, 2002 order which was denied by the trial court.

Keaster subsequently filed a Motion to Determine Amount of Plaintiff's Attorney's Fees. A hearing was held and on January 7, 2003, Keaster's attorney submitted an affidavit attesting to the amount of attorneys' fees expended. The affidavit stated that the total amount of attorneys' fees was $20,412.36 and the total amount of costs was $1,284.30. At the hearing, Keaster presented the testimony of Jeff Brown, an expert witness who had reviewed the pleadings and motions that were filed in the case. He testified that reasonable attorneys' fees for the matter were $25,000. Levine presented no evidence or rebuttal testimony. The trial court entered an order in favor of Keaster awarding attorneys' fees of $24,000, costs of $1,284.30 and expert fees of $1,500. Levine again filed a motion for rehearing which was denied by the trial court.

The specific matters raised on appeal are:[3]

1. Whether the trial court committed reversible error in finding that Keaster *880 was entitled to attorney's fees, costs, and expert witness fees.
2. Whether the trial court committed reversible error in determining the amount of attorney's fees awarded.

We affirm the trial court on the first issue, and reverse on the second.

I. THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR IN FINDING THAT APPELLEE WAS ENTITLED TO ATTORNEYS' FEES

Levine argues that the trial court committed the following reversible errors in determining Keaster was entitled to attorneys' fees and costs:

A. Denying due process by holding a hearing, effectively, on two day's notice, and denying motions for continuance;
B. Denying due process by overruling the objections at the August 14, 2002 hearing, on the grounds that Levine was in default on the main action;
C. Granting Keaster the relief he requested at the August 14, 2002 hearing when he submitted no admissible evidence.
D. Entering an order dated September 9, 2002, prepared by the attorney for Keaster, which contained various findings of fact and case citations not pronounced by the trial court;
E. Including in that order findings of fact, where no documents or testimony were put into evidence before the trial court.
F. Denying due process by entering the September 9, 2002 order, setting another hearing on the issue of contempt, finding that her affidavit was false, and specifically placing the burden on Levine to "show why she should not be held in civil contempt for filing a false affidavit in this court and why this Court should not impose sanctions upon her as a result of that conduct."
G. Denying due process by entering the October 29, 2002 contempt order, following the October 10, 2002 hearing in which appellee failed to carry the burden of proof by failing to submit evidence in its case in chief, and where the only testimony was by the mother of appellant regarding Levine's residence address.[4]

The court finds the issue of entitlement to fees is properly before this court.[5] The goal of civil contempt is remedial and for the benefit of the complainant. See Levey v. D'Angelo, 819 So.2d 864, 867 (Fla. 4th DCA 2002). If a party is found in contempt, it is proper for the court to compensate the injured party by assessing attorney's fees for the contempt proceedings. See Lake Worth Utils. Auth. v. Haverhill Gardens, Ltd., 415 So.2d 125 (Fla. 4th DCA 1982). Compensation must be based upon evidence of an injured party's actual loss. See Levey, 819 So.2d at 868.

*881 In the instant case, the trial court found that as a direct result of Levine's conduct, Keaster had been unnecessarily compelled to expend attorney's fees for representation emanating from the filing of Levine's fraudulent affidavit on March 11, 2002. The arguments raised by Levine, on this issue, are unsupported or insupportable, and in any event unpersuasive. Accordingly, the trial court was within its authority to order Levine to pay attorneys' fees. Its decision to do so is affirmed.

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DETERMINING THE AMOUNT OF ATTORNEY'S FEES

In her second point on appeal, Levine argues that the trial court made the following reversible errors regarding the amount of attorney's fees awarded to Keaster:

A. Failing to set forth findings as to the reasonable number of hours and the reasonable hourly rate, as required by Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985);
B. Awarding an amount of fees in excess of that agreed to between appellee and his counsel, in violation of Perez-Borroto v. Brea, 544 So.2d 1022 (Fla.

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Bluebook (online)
862 So. 2d 876, 2003 WL 22959620, Counsel Stack Legal Research, https://law.counselstack.com/opinion/levine-v-keaster-fladistctapp-2003.