Sandra T. Fuller v. Steve Torcise

• Court: District Court of Appeal of Florida
• Decided: January 3, 2024
• Docket: 2023-0182
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed January 3, 2024. Not final until disposition of timely filed motion for rehearing.

Nos. 3D23-0180, 3D23-0182 Lower Tribunal Nos. 19-1925, 18-4907

Sandra T. Fuller, Appellant,

vs.

Steve Torcise, Appellee.

Appeals from the Circuit Court for Miami-Dade County, Jorge E. Cueto, Judge.

Bilzin Sumberg Baena Price & Axelrod LLP, Mitchell E. Widom, and Raquel Fernandez; The Nguyen Law Firm, and Hung V. Nguyen, for appellant.

Akerman LLP, Gerald B. Cope, Jr., Richard C. Milstein, and Dale Noll, for appellee.

Before FERNANDEZ, HENDON and MILLER, JJ.

FERNANDEZ, J. Sandra Fuller (“Fuller”) appeals the trial court’s orders granting

attorney’s fees in favor of Steve Torcise (“Torcise”) in connection with the

incapacity and guardianship proceedings of the parties’ mother, Joyce

Torcise, and a related trust case. Because the trial court abused its discretion

by failing to hold an evidentiary hearing prior to determining the amount in

fees, we reverse the trial court’s orders awarding attorney’s fees and remand

with instructions to conduct an evidentiary hearing on the reasonableness of

attorney’s fees.

This is an appeal of the following three final orders awarding attorney’s

fees and costs: 1) Order on Sandra Fuller’s and Her Counsels’ Motion for

Award of Attorneys’ Fees and Costs, 2) Order Granting Akerman LLP’s

Motion for Determination of Amount of Award of Attorneys’ Fees and Costs,

and 3) Order Granting Dunwody White & Landon P.A.’s Motion for

Determination of Attorneys’ Fees and Costs. After the conclusion of

approximately two years of proceedings involving a Health Care Surrogate

Designation, the parties entered a settlement and submitted an agreed

order.

The trial court bifurcated entitlement to fees and costs from

determination of the amount of attorney’s fees. On July 20, 2021, the trial

court entered an order awarding entitlement to both parties and ordered the

2 parties to mediate to resolve the amount of fees. The parties were unable to

reach an agreement. As a result, Fuller requested an evidentiary hearing to

determine the amount and reasonableness of attorney’s fees. Though an

evidentiary hearing was scheduled, the hearing was never held. Instead,

after the evidence was submitted to the trial court, the court requested each

party to submit proposed orders. The parties complied. The trial court

adopted Torcise’s order, awarding Torcise over $800,000 in attorney’s fees

and costs to be paid from Fuller’s share of two trusts and awarding Fuller

only $6,718.60 of the $742,732.30 she requested. Fuller filed a motion for

rehearing, which the trial court denied. Fuller now appeals the three final

orders awarding attorney’s fees and costs.

The standard of review for an award of attorney’s fees and costs is

abuse of discretion. Bateman v. Serv. Ins. Co., 836 So. 2d 1109, 1111

(Fla. 3d DCA 2003). “We review the trial court’s evidentiary findings

regarding the attorneys’ fee award for competent, substantial

evidence.” Universal Prop. & Cas. Ins. Co. v. Deshpande, 314 So. 3d 416,

419 (Fla. 3d DCA 2020).

It is clear from the record that Sandra requested an evidentiary

hearing. The trial court entered multiple orders stating that an evidentiary

hearing was to be held, and an evidentiary hearing was scheduled.

3 Nevertheless, the trial court chose an alternative method to decide fees.

Therefore, the dispositive issue before this Court is whether the trial court

abused its discretion by not holding an evidentiary hearing.

Steve argues that Sandra waived her right to an evidentiary hearing

by: 1) failing to object to the trial court’s procedure until after entry of the fee

orders and 2) entering an agreed order extending the timelines for submitting

materials to the trial court, including proposed orders. We find no affirmative

waiver of the evidentiary hearing. Additionally, this case is almost identical

to United Automobile Insurance Company v. Professional Medical Group,

Inc., 318 So. 3d 1261 (Fla. 3d DCA 2021), which is controlling.

In United Auto, this Court reversed and remanded an attorney’s fee

order finding:

“By requesting that the court hold an evidentiary hearing on the issue of attorney's fees, appellant[ ] preserved [its] right to a hearing.” The outcome of this appeal would have been different if the interim order for discovery was in preparation for an evidentiary hearing, but instead, the trial court improperly substituted discovery procedures for a mandatory evidentiary hearing in violation of due process.

Id. at 1263 (internal citations omitted). As in the instant case, the appellee in

United Auto argued that the appellant waived its right to an evidentiary

hearing, in that case for failure to file evidence pursuant to a trial court order.

Id. This Court reasoned that because the appellant requested an evidentiary

4 hearing before the trial court issued its discovery order, which was in lieu of

an evidentiary hearing, and because the trial court denied appellant’s

request for an evidentiary hearing, the appellant preserved its right to an

evidentiary hearing. Id.

In the present case, the trial court did not outright deny the request for

an evidentiary hearing, but this has no bearing on the case. As this

Court stated in Bateman, 836 So. 2d at 1111, “given that the trial court

failed to conduct an evidentiary hearing, especially after entering an

order which stated that the parties were entitled to said hearing, the

Record clearly lacks evidentiary support for the fees disbursed by the trial

court.” In the instant case, the trial court issued multiple orders stating that

an evidentiary hearing was to be held, including an order scheduling

an evidentiary hearing. Therefore, it is clear from our Court’s precedent

that Sandra did not waive her right to an evidentiary hearing.

Because the trial court abused its discretion by failing to conduct an

evidentiary hearing before deciding the reasonableness of fees in violation

of due process, we reverse the trial court’s orders awarding attorney’s fees

and remand with instructions to conduct an evidentiary hearing on the

reasonableness of fees.

Reversed and remanded with instructions.