               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT


BENNY G. SANTIAGO, a/k/a                     )
BENITO G. SANTIAGO,                          )
                                             )
              Appellant,                     )
                                             )
v.                                           )          Case No. 2D13-1205
                                             )
SUNSET COVE INVESTMENTS, INC.,               )
                                             )
              Appellee.                      )
                                             )

Opinion filed November 20, 2015.

Appeal from the Circuit Court for
Hillsborough County; James H. Barton, II,
Judge.

Brian C. Chase of Meridian Partners,
Tampa, for Appellant.

David M. Carr of David Michael Carr, P.A.,
Tampa; and Matias Blanco, Jr., Tampa, for
Appellee.


MORRIS, Judge.

              Benito Santiago appeals a final judgment awarding sanctions against him

and in favor of Sunset Cove Investments. Santiago raises six issues relating to the

award of sanctions. However, we find merit only in one: that the trial court's inclusion of

appellate attorneys' fees in the sanctions was erroneous because Sunset Cove never
moved for attorneys' fees in this court. He also challenges the underlying 2005 order

finding him in contempt, but we conclude that his challenge is barred by the law of the

case doctrine. Sunset Cove has moved for appellate attorneys' fees pursuant to section

57.105(1)(b), Florida Statutes (2015), based on Santiago's challenge to the 2005

contempt order, and as explained herein, we grant that motion solely as against

Santiago's counsel.

           I. The Trial Court Erred by Including Appellate Attorneys' Fees in the
Award of Sanctions.

              We review a trial court's determination of entitlement to attorneys' fees for

abuse of discretion. See Discovery Experimental & Dev., Inc. v. Dep't of Health, 824

So. 2d 195, 196 (Fla. 2d DCA 2002). Here, we find it unnecessary to include a

complete recitation of the facts because the inclusion of appellate attorneys' fees in the

trial court's award is an abuse of discretion based on the undisputed facts.

              We have previously held that "[a] trial court cannot award appellate

attorney's fees unless the appellate court has authorized such an award." Bartow HMA,

LLC v. Kirkland, 146 So. 3d 1213, 1215 (Fla. 2d DCA 2014) (quoting Rados v. Rados,

791 So. 2d 1130, 1131 (Fla. 2d DCA 2001)). Parties are required to file a motion for

appellate attorneys' fees in this court during an appeal because this court has exclusive

jurisdiction to award such fees. See id. "Absent an appellate court's authorization, a

circuit court has 'no authority to award attorney's fees for services in [the appellate]

court, even as a sanction.' " Id. (alteration in original) (quoting Closuit v. Crane Envtl.,

Inc., 850 So. 2d 652, 653 (Fla. 2d DCA 2003)).

              It is undisputed that Sunset Cove never sought appellate fees during prior

appeals between the parties in this court, nor did this court ever authorize such an



                                             -2-
award. We reject Sunset Cove's contention that Santiago waived any challenge to the

award of appellate attorneys' fees because he conceded that the amount of the fees

was reasonable. Santiago's agreement about the reasonableness of the amount does

not negate his strenuous objection below as to Sunset Cove's entitlement to such fees.

Further, while a party opposing an attorneys' fees award generally "has the burden of

pointing out with specificity which hours should be deducted," Levine v. Keaster, 862

So. 2d 876, 882 (Fla. 4th DCA 2003), the fact that Santiago did not do so here is not an

impediment to granting him relief. This is because Sunset Cove conceded below that

appellate fees were included in the amount requested. Consequently, we reverse the

order awarding sanctions to the extent that it includes appellate attorneys' fees. On

remand, the trial court shall determine what portion of the award constitutes appellate

attorneys' fees and shall deduct that amount accordingly. In all other respects, the

order awarding sanctions is affirmed.

            II. Santiago Is Barred by the Law of the Case Doctrine From
Challenging the 2005 Contempt Order.

             We also write briefly to address Santiago's challenge to the 2005

contempt order. The underlying dispute involved a real estate deal gone awry. After

Sunset Cove filed suit, the parties entered into a mediated settlement agreement which

was then incorporated into a final judgment. The subsequent contempt order was

based on Santiago's refusal to close on the real estate deal and his election to instead

sell the relevant properties to a third-party purchaser. Santiago contends that he should

not have been held in contempt because the final judgment did not prohibit him from

selling the properties to a third-party purchaser once the ninety-day closing deadline

expired.



                                           -3-
              However, in an earlier appellate proceeding between the parties, Santiago

v. Sunset Cove Investments, Inc., 2D07-1598, Santiago filed a petition to enforce writ of

prohibition and/or for expedited order to show cause or stay, writ of prohibition or

alternative writs and remedies. In the petition, he made the same argument: because

the final judgment contained no specific or express terms regulating or prohibiting the

sale of the property after the designated closing deadline lapsed, his sale of the

properties to the third-party purchaser could not support a finding that he willfully

violated the final judgment. On April 13, 2007, we denied with prejudice the portion of

the petition raising that ground.1 The denial with prejudice constituted a decision on the

merits. See Sumner v. Sumner, 707 So. 2d 934, 935 (Fla. 2d DCA 1998); see also

Barwick v. State, 660 So. 2d 685, 691 (Fla. 1995), abrogated on other grounds by

Topps v. State, 865 So. 2d 1253 (Fla. 2004). We subsequently denied his motion for

rehearing on that point. Consequently, because that issue has already been decided by

this court, the law of the case doctrine applies. See Specialty Rests. Corp. v. Elliott,

924 So. 2d 834, 837 (Fla. 2d DCA 2005). We decline to alter the law of the case on this

issue.

            III. Sunset Cove is Entitled to Appellate Attorneys' Fees Pursuant to
Section 57.105(1)(b) as Against Santiago's Counsel Only.

              Sunset Cove seeks appellate attorneys' fees pursuant to section 57.105(1)

and requests separate judgments against both Santiago and his counsel. We agree

with Sunset Cove that because Santiago's challenge to the 2005 contempt order is



              1The  denial was rendered via unpublished order. The proceeding was
then partially converted into a nonfinal appeal to address another unrelated ground that
ultimately resulted in an opinion. See Santiago v. Sunset Cove Invs., Inc., 988 So. 2d
10 (Fla. 2d DCA 2008).


                                            -4-
based on the same argument that he made in his prior petition for writ of prohibition,

which we denied with prejudice, his presentation of the argument in this case is not

supported by the application of existing law to the material facts. Consequently, Sunset

Cove is entitled to an award of appellate attorneys' fees pursuant to section

57.105(1)(b). We find no merit in Santiago's contention that Sunset Cove cannot

recover fees because it is not the prevailing party on appeal. This is because section

57.105(1) provides in relevant part that

              the court shall award a reasonable attorney's fee, including
              prejudgment interest, to be paid to the prevailing party in
              equal amounts by the losing party and the losing party's
              attorney on any claim or defense at any time during a civil
              proceeding or action in which the court finds that the losing
              party or the losing party's attorney knew or should have
              known that a claim or defense when initially presented to the
              court or at any time before trial:
              (a) Was not supported by the material facts necessary to
              establish the claim or defense; or
              (b) Would not be supported by the application of then-
              existing law to those material facts.

(Emphasis added.) Because the statute refers to "any claim or defense," it does not

require that the entire action be unsupported by material facts or the application of then-

existing law. See Albritton v. Ferrera, 913 So. 2d 5, 8 (Fla. 1st DCA 2005) (citing

Mullins v. Kennelly, 847 So. 2d 1151, 1154 (Fla. 5th DCA 2003)). We note that at least

one Florida court has sanctioned a party's counsel for filing a brief containing an

argument that had already been raised and ruled upon in a prior appeal. See

Waddington v. Baptist Med. Ctr. of the Beaches, Inc., 78 So. 3d 114, 117 (Fla. 1st DCA

2012). However, because we base the award of appellate attorneys' fees on section

57.105(1)(b), the fees may only be awarded as against Santiago's counsel. See §

57.105(3)(c) (prohibiting the imposition of sanctions pursuant to section 57.105(1)(b)



                                           -5-
against a represented party); see also Waddington, 78 So. 3d at 117. We therefore

grant Sunset Cove's motion and award Sunset Cove its reasonable attorneys' fees that

were incurred for defending the claim related to the 2005 contempt order; the fees shall

be paid in full by Santiago's counsel. See Waddington, 78 So. 3d at 117. We remand

for the trial court to determine the amount.

              Affirmed in part, reversed in part, and remanded with instructions.


VILLANTI, C.J., and BADALAMENTI, J., Concur.




                                           -6-
