Smallwood v. Perez, 96-3243.

• Decision Date: 16 September 1998
• Docket Number: No. 96-3243.,96-3243.
• Citation: 735 So.2d 490
• Parties: Sheri SMALLWOOD, Chartered, and Sheri Smallwood, Esquire, Appellants, v. Michelle Marie PEREZ, Appellee.
• Court: Florida District Court of Appeals

735 So.2d 490

Sheri SMALLWOOD, Chartered, and Sheri Smallwood, Esquire, Appellants, v. Michelle Marie PEREZ, Appellee.

No. 96-3243.

District Court of Appeal of Florida, Third District.

September 16, 1998.

Sheri Smallwood, Key West, and Cynthia L. Greene, Miami, for appellants.

Horan & Horan and David Paul Horan, Key West, for appellee.

Before SCHWARTZ, C.J., and COPE, and GODERICH, JJ.

On Rehearing Granted

COPE, Judge.

We grant the motion for rehearing, withdraw the court's previously issued opinion, and substitute the following opinion:

Sheri Smallwood, counsel for the husband in an action for dissolution of marriage, appeals an order assessing $14,000 in attorney's fees against her personally. We reverse.

I.

In 1994, appellee Michelle M. Perez filed an action for dissolution of marriage against her husband, Corey A. Perez. The wife works as a legal secretary in the law office of Horan & Horan, in Key West. The wife was represented by David Paul Horan in the dissolution action.

This was a five-year marriage during which the parties had two children. The parties have modest incomes and few assets. Most of the issues had been resolved by the parties themselves, with the exception of the amount of child support to be paid by the husband, the wife's claim for temporary alimony, and who would bear responsibility for the payments on the wife's car. The wife dropped the latter two claims during the litigation. By the conclusion of the case, the only disputed issue was the husband's income level for purposes of the child support guidelines. This boiled down to a dispute over how much income should be attributed to him from an irregular part-time job which he worked in addition to his full-time employment.

From an early point in the litigation, Mr. Horan pressed Ms. Smallwood for simplification of the case and prompt resolution, pointing out that the parties had limited funds and could not afford litigation. The original trial judge, Judge Taylor, echoed those sentiments.

The case proceeded to final hearing at which the unresolved issues were the child support to be paid by the husband, and the wife's claim for attorney's fees. The court resolved the child support issue and, after considering the history of the case as well as the relative incomes of the parties,¹ awarded the wife $5,000 as a partial reimbursement of her attorney's fees and costs.²

The husband took an appeal, in which he was represented by independent appellate counsel Deborah Marks. The appeal was affirmed without opinion. See Perez v. Perez, 676 So.2d 426 (Fla. 3d DCA 1996).

One week after this court's affirmance, the wife filed a motion for sanctions in which she sought an award of attorney's fees against Ms. Smallwood as trial counsel and Ms. Marks as appellate counsel. The wife contended that most of the trial and appellate litigation on behalf of the husband was baseless, and that the court should exercise its inherent power to assess attorney's fees as sanctions against the husband's counsel individually.

A successor judge conducted an evidentiary hearing and exonerated Ms. Marks, the appellate attorney. The court found the wife's claim against Ms. Smallwood to be well-founded, and assessed $14,000 in attorney's fees against her individually. Ms. Smallwood has appealed.

II.

We first note that the trial court was without jurisdiction to entertain the wife's motion for appellate attorney's fees. As explained by Judge Padovano:

Rule 9.400(b) outlines the procedural requirements for obtaining an award of attorneys' fees for legal representation in an appellate proceeding. The rule provides, in essence, that a motion for attorneys' fees must be filed in the appellate court, and that it must be served within the time for service of the reply brief. The appellate court will ordinarily consider a motion for attorneys' fees when it reviews the merits of the case and, in most cases, the court will dispose of the motion at the time the case is decided. If attorneys' fees are awarded, the appellate court will remand the case to the lower tribunal for a determination of the proper amount.

Philip J. Padovano, Florida Appellate Practice § 20.2, at 351 (2d ed.1997); see also Fla. R.App. P. 9.400(b).³

It is, of course, true that under the matrimonial statute, "[t]he trial court shall have continuing jurisdiction to make temporary attorney's fees and costs awards reasonably necessary to prosecute or defend an appeal on the same basis and criteria as though the matter were pending before it at the trial level." § 61.16(1), Fla. Stat. (1997) (emphasis added); see Fla. R.App. P. 9.600(c)(1); Amendments to Florida Rules of Appellate Procedure, 657 So.2d 897, 898 (Fla.1995); Swartz v. Swartz, 691 So.2d 2 (Fla. 3d DCA 1996); Padovano, supra, § 20.6, at 362.

The wife's motion for sanctions sought attorney's fees for the just-concluded appeal, not temporary attorney's fees. That being so, the trial court was without jurisdiction to consider it, and should not have reached the merits of the appellate attorney's fees claim. The error was harmless, however, for the trial court reached the correct result in denying appellate attorney's fees. See Select Builders of Florida, Inc. v. Wong, 367 So.2d 1089, 1091 (Fla. 3d DCA 1979)

.

III.

Ms. Smallwood challenges the attorney's fee award entered against her. We conclude that the former wife's motion was procedurally barred and reverse the award.

Courts have the inherent power to assess attorney's fees against counsel for litigating in bad faith. See Patsy v. Patsy, 666 So.2d 1045, 1047 (Fla. 4th DCA 1996)

; Sanchez v. Sanchez, 435 So.2d 347, 350 (Fla. 3d DCA 1983); see also Roadway Express, Inc., v. Piper, 447 U.S. 752, 764-67, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980). See generally Alan Stephens, Annotation, Attorney's liability under state law for opposing party's counsel fees, 56 A.L.R.4th 486 (1987); Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Ins. Co., 639 So.2d 606, 608-09 (Fla.1994) (discussing trial court's inherent powers). "A court must, of course, exercise caution in invoking its inherent power, and it must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees...." Chambers v. NASCO, Inc., 501 U.S. 32, 50, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (citation omitted); see also Patsy, 666 So.2d at 1047.

Ms. Smallwood contends, and we agree, that the motion for sanctions in this case was untimely. The wife in her petition for dissolution of marriage requested attorney's fees, see § 61.16, Fla. Stat., and the trial court ruled on the claim for attorney's fees in the final judgment. The Florida Supreme Court has outlined the factors to be considered in making an attorney's fee award under section 61.16:

Under this scheme, the financial resources of the parties are the primary factor to be considered. However, other relevant circumstances to be considered include factors such as the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation.

Rosen v. Rosen, 696 So.2d 697, 700 (Fla. 1997) (emphasis added).

Under Rosen, the respective financial positions of the parties are the main consideration in determining an attorney's fee award. However, Rosen clearly mandates that the court consider all other relevant circumstances, including the entire history of the litigation, the merit (or lack of merit) in the party's respective positions, and whether the litigation was pursued for an improper purpose, such as to harass, frustrate, or stall. See id.

In the present case, the original final judgment shows that the trial court considered these factors. The first four pages of the final judgment reviewed the pleadings in this case, in terms which were critical of the number and length of the husband's pleadings and discovery requests, inconsistency in the presentation of the husband's income information, and the husband's repeated motions for disqualification.

After this litany, the judgment next states, "At the conclusion of the June 21, 1995 final hearing, the attorneys for both parties stipulated on the record that a `proper amount' of attorney's fees to be assessed (in favor of the Husband or the Wife) would be $5,000.00." (Emphasis added). The court then awarded the wife $5,000 in fees as follows:

15. The Court having reviewed the pleadings filed by the parties, and having considered the relative income of the parties and having considered the fact that the temporary (statutory) child support set by Judge Taylor on September 14, 1994 is nearly identical to the final amount set in this order, the Court hereby orders the Respondent/Husband to pay the Petitioner/Wife the sum of $5,000.00 as a partial reimbursement of the attorney's fees and costs she has incurred in these proceedings.

In the wife's post-appeal motion for sanctions, the wife travels the identical ground. She raises again the very same complaints she made at the final hearing in the dissolution proceeding.⁴

Efficiency requires one attorney's-fee proceeding, not two. Where a litigant has a viable basis to invoke the inherent power of the court to assess attorney's fees against opposing counsel for bad faith litigation in a matrimonial case, the motion must be made and considered in conjunction with any attorney's fee request under section 61.16. To hold otherwise would allow successive attorney's fee motions in which the trial court must first visit, and then revisit, the history and merits of the case. Cf. Bass v. State Farm Life Ins. Co., 649 So.2d 924, 926 (Fla. 3d DCA 1995)

(denying post-appeal "motion for trial court attorney's fees, which was filed approximately twenty-two months after final...