       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                         DEXTER F. GEORGE,
                             Appellant,

                                    v.

               NATHANIEL GILBERT and SUJITTAR SINGH,
                             Appellees.

                             No. 4D17-3485

                           [February 20, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Nicholas R. Lopane, Judge; L.T. Case No. FMCE-16-
14204.

   Dexter F. George of Law Office of Dexter F. George, Plantation, pro se.

   Ellen S. Morris of Elder Law Associates, Boca Raton, for appellees.

GERBER, C.J.

   The former counsel to a spouse, whose marriage to an incapacitated
person was annulled, appeals from the circuit court’s order directing the
former counsel to pay 50% of the incapacitated person’s attorney’s fees
incurred in obtaining the annulment. The spouse’s former counsel
primarily argues that he was not afforded due process, because after he
had withdrawn from the case, he was not provided notice and an
opportunity to be heard regarding the court’s decision to impose attorney’s
fees against him. We agree with the former counsel’s argument. Therefore,
we reverse the order and remand for a new hearing providing due process.

                           Procedural History

   The former attorney filed an answer and affirmative defenses on behalf
of the spouse, whose marriage to an incapacitated person became the
subject of an annulment petition. The former attorney then withdrew from
representing the spouse, nineteen days before the trial on the petition.

   At the trial on the petition, a new attorney represented the spouse. At
the end of the trial, the circuit court not only granted the annulment, but
also found that “the attorney” (unspecified) and the spouse should have to
pay the incapacitated person’s attorney’s fees, because the spouse’s
opposition to the annulment was disingenuous:

         [N]ot only am I going to grant this annulment, but I’m going
      to find that [the spouse] is going to have to pay all [the
      incapacitated person’s] attorney’s fees for these proceedings.
      And here’s why: [The spouse] has engaged in a disingenuous
      argument by [having filed before the marriage] a petition to
      appoint an emergency temporary guardian [for the]
      incapacitated person.

         And then there was an actual finding by the courts saying
      that he was an incapacitated person and he needed an
      emergency guardian appointed. Then [the spouse] absolutely
      disingenuously and probably illegally ran out and married
      him regardless of the fact that she asked for him to be declared
      incapacitated. And the courts said, yes, he is incapacitated
      and then she went out and married him. There’s no way I’m
      not going to award attorney’s fees in this case . . . This is . . .
      some of the most malicious and intentionally and wantonly
      reckless litigation I’ve ever seen. I’m granting the entitlement
      to attorney’s fees.

          [To the incapacitated person’s counsel] Put together your
      billing statement. I’m going to award [attorney’s fees] and we’ll
      take a look at it because I'm awarding it as a sanction . . . I’m
      going to consider awarding against both the attorney and [the
      spouse] . . .

(emphasis added).

   Following the trial, the circuit court entered a written order granting
the petition for annulment. Consistent with the circuit court’s oral
pronouncement, the written order also indicated that the circuit court
would be directing the spouse and the spouse’s “counsel” (unspecified) to
pay the incapacitated person’s attorney’s fees:

         [The spouse] has engaged in a disingenuous defense of
      these annulment proceedings and maliciously and wantonly
      reckless litigation as she (a) was the initial petitioner in [the
      incapacitated person’s] mental health and guardianship
      proceedings alleging [he] was fully incapacitated; (b) petitioned
      to have an emergency temporary guardian appointed for [the

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      incapacitated person]; (c) knew [he] was determined to be fully
      incapacitated by Court Order [before the marriage]; [and (d)]
      disingenuously and illegally obtained a license to marry [the
      incapacitated person] and married [the incapacitated person].

         It is therefore ORDERED AND ADJUDGED:

         1. The Petition for Annulment of the marriage between [the
            incapacitated person] and [the spouse] is hereby
            GRANTED,       and    the  marriage     between     [the
            incapacitated person] and [the spouse] . . . is void ab
            initio.

         2. Attorney’s fees and costs are hereby awarded in favor of
            [the incapacitated person].

         3. By separate Order following an additional hearing, the
            Court shall determine the amount(s) to be paid to [the
            incapacitated person] by [the spouse] and/or [the
            spouse’s] counsel.

   Significantly, the written order did not indicate that a copy of the order
was furnished to the spouse’s former counsel. Rather, the written order
indicated that copies of the order were furnished to only the incapacitated
person’s counsel and the spouse’s trial counsel. The written order also
did not indicate which of the spouse’s “counsel” was the subject of the
Order, or the legal basis upon which the circuit court had awarded
attorney’s fees and costs in favor of the incapacitated person.

    Approximately a month after trial, the incapacitated person’s counsel
filed a “Notice of Special Set Hearing,” set to occur approximately three
months after the notice, for “Determination and Assessment of [the
Incapacitated Person’s] Attorney’s Fees and Costs Against [the Spouse]
and/or Her Counsel.” The notice of hearing contained a certificate
indicating that the notice was being served on both the spouse’s trial
counsel and the spouse’s former counsel. However, like the written order,
the notice of hearing did not indicate which of the spouse’s “counsel” was
the subject of the hearing, or the legal basis for determination and
assessment of the incapacitated person’s attorney’s fees and costs against
the spouse and her “counsel.”

   The hearing occurred on the date it was noticed. The incapacitated
person’s counsel and the spouse’s trial counsel appeared. The spouse’s
former counsel did not appear. The incapacitated person’s counsel told

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the court: “To refresh your recollection . . . [the spouse] was [earlier]
represented by [former counsel], who you also directed to be here today.
The hearing was coordinated with him and noticed to him, although he’s
not here this morning.” (emphasis added). Although the record supports
that the hearing was noticed to the spouse’s former counsel, nothing in
the record indicates that the court specifically directed the spouse’s former
counsel to attend, or that the hearing was coordinated with the spouse’s
former counsel.

   The hearing then proceeded. The spouse’s trial counsel convinced the
circuit court to enter an order dismissing the sanctions against her
because she appeared on the spouse’s behalf just days before the trial.
The circuit court excused the spouse’s trial counsel from the courtroom.

   The circuit court then received the incapacitated person’s counsel’s
sworn testimony regarding the hours expended, hourly rate charged, and
costs. The circuit court stated it was granting the incapacitated person’s
counsel’s attorney’s fees and costs in full as requested.

   The circuit court later entered a written order to that effect. The written
order apportioned 50% of the attorney’s fees and costs upon the spouse,
and the other 50% upon the spouse’s former counsel. The written order
did not state the legal basis upon which the circuit court had awarded the
incapacitated person’s attorney’s fees and costs against the spouse and
the spouse’s former counsel. The written order also did not indicate that
copies of the order were being furnished to the spouse and the spouse’s
former counsel.

   In any event, ten days after the hearing, the incapacitated person’s
counsel e-mailed the order on attorney’s fees and costs, plus the transcript
of the hearing on the attorney’s fees and costs, to the spouse’s former
counsel.

                                This Appeal

   This appeal followed. The spouse’s former counsel argues that he was
not afforded due process, because after he had withdrawn from the case,
he was not provided notice and opportunity to be heard regarding the
circuit court’s decision to impose attorney’s fees against him.

    We agree with the spouse’s former counsel’s argument. “[T]o allow a
court to rule on a matter without proper pleadings and notice is violative
of a party’s due process rights.” Pro-Art Dental Lab, Inc. v. V-Strategic Grp.,
LLC, 986 So. 2d 1244, 1252 (Fla. 2008). “[W]hen a court considers issues

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not noticed for hearing, the court denies the litigant due process, and any
ensuing order or judgment must be reversed.” In re Assimakopoulos, 228
So. 3d 709, 715 (Fla. 2d DCA 2017). “Entry of judgment on a motion never
made, never served upon the opposing party, and never noticed for hearing
patently violates due process.” Id. at 716.

   Here, nothing in the record indicates that the spouse’s former counsel
had been given notice and an opportunity to be heard before the circuit
court orally announced it was ordering the spouse’s unspecified “attorney”
to pay the incapacitated person’s attorney’s fees and costs. Furthering
that denial of due process, the written order directing the spouse’s
unspecified “counsel” to pay the incapacitated person’s attorney’s fees and
costs apparently was never furnished to the spouse’s former counsel.

   The answer brief argues that the spouse’s former counsel was provided
due process, because the spouse’s former counsel later was served with
the “Notice of Special Set Hearing” for determination and assessment of
the amount of the incapacitated person’s attorney’s fees and costs. We
disagree with this argument, because due process already had been denied
to the spouse’s former counsel. The circuit court already had orally
announced, and by written order confirmed, its decision to order the
spouse’s unspecified “counsel” to pay the incapacitated person’s attorney’s
fees and costs. The only decision left for the special set hearing was the
amount of the attorney’s fees being awarded.

   The fact that the spouse’s former counsel did not attend the special set
hearing does not change our decision. While the proper and professional
action would have been for the spouse’s former counsel to have inquired
about the notice’s contents and attended the hearing, we must repeat that
due process already had been denied to the spouse’s former counsel. The
court already had orally announced, and by written order confirmed, its
decision to order the spouse’s unspecified “counsel” to pay the
incapacitated person’s attorney’s fees and costs, without first giving the
spouse’s former counsel notice and an opportunity to be heard.

   The answer brief also argues that the circuit court was permitted to
order the spouse’s former counsel to pay the incapacitated person’s
attorney’s fees without prior notice, because the circuit court’s order was
issued upon the court’s own motion under section 57.105, Florida
Statutes (2017). In support of that argument, the answer brief relies on
our decision in Watson v. Stewart Tilghman Fox & Bianchi, P.A., 195 So.
3d 1163 (Fla. 4th DCA 2016), for the proposition that, in the answer brief’s
words, “procedurally deficient proceedings are not enough to quash
sanctions on a court’s own motion.”

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  We disagree with the answer brief’s argument, and its reliance on
Watson, for two reasons.

    First, from a technical standpoint, while it is reasonable to assume that
the circuit court’s order was initiated on its own motion under section
57.105, at no point did the circuit court indicate that its order was being
initiated on its own motion under section 57.105 (which the spouse’s
former counsel argues is a secondary due process violation).

   Second, Watson does not stand for the general proposition that
“procedurally deficient proceedings are not enough to quash sanctions on
a court’s own motion.” Watson’s holding was more specific than that.

   In Watson, after final judgment was entered in the defendants’ favor,
the defendants filed a motion for attorney’s fees under section 57.105. 15
So. 3d at 1165. However, the defendants did not comply with section
57.105(4)’s safe harbor provision. Id. The defendants argued it did not
matter that they did not comply with the safe harbor provision, because
the trial court could grant attorney’s fees on its own motion. Id. The
plaintiffs responded that because the defendants’ motion was insufficient,
the trial court could not grant attorney’s fees on its own motion. Id. at
1166. Ultimately, the trial court, on its own motion, granted attorney’s
fees to the defendants, explaining “I am not simply adopting a failed 57.105
attempt by the Defendants,” but was making its own finding that the
plaintiffs’ action was frivolous. Id.

   On appeal, the plaintiffs contended that the trial court circumvented
section 57.105’s safe harbor provision by adopting the defendants’ motion
as the trial court’s own motion. Id. at 1167. We disagreed with the
plaintiffs’ argument, reasoning:

      [A] bright-line rule that prevents a trial court from imposing
      sanctions on its own if a motion filed by the moving party is
      procedurally deficient would not only be inconsistent with the
      plain meaning of the statute, but would also obtrusively
      infringe on the trial court’s power to sanction a party which it
      determines is deserving of such a sanction.

      ...

      [W]e now expressly hold that a trial court does not abuse its
      discretion in ordering a party to pay attorney’s fees pursuant
      to section 57.105(1) on its own initiative, even if a motion is filed

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      by a party and the moving party fails to comply with the safe
      harbor requirements of the rule, as long as it can be determined
      from the record that the trial court is not simply adopting the
      moving party’s motion.

Id. at 1167-68 (emphasis added). As can be seen from the quote above,
our reference in Watson to excusing a section 57.105 procedural deficiency
was limited to the situation in which the trial court’s motion did not
adopt the moving party’s non-compliant motion. We did not hold, and
Watson should not be read to hold, that any section 57.105 procedural
deficiency, including a due process violation, may be excused without
consequence.

   Based on the foregoing, we reverse the circuit court’s order directing
the spouse’s former counsel to pay 50% of the incapacitated person’s
attorney’s fees incurred in obtaining the annulment. We remand for the
circuit court to give notice of its intent to entertain a motion for attorney’s
fees on its own initiative to the spouse’s former counsel (including stating
the basis for the circuit court’s motion), and to give the spouse’s former
counsel an opportunity to be heard on the motion before the circuit court
decides whether to order the payment of attorney’s fees.

   Reversed and remanded for proceedings consistent with this opinion. 1

   1 The answer brief’s reliance on Watson has caused us to reconsider the

soundness of dicta from that opinion. That dicta provided, in pertinent part:

      We . . . do not construe [section 57.105] to require the trial court to
      give a separate notice of its intent to entertain a section
      57.105 motion on its own initiative, when a motion for such fees is
      filed by a party and notice of hearing on the party's motion is given.
      Such a construction would . . . give the appearance of impropriety,
      suggesting in advance that the motion will be granted.

We consider that paragraph to be dicta, because no issue existed in Watson
regarding whether the trial court was required to give a separate notice of its
intent to entertain a section 57.105 motion on its own initiative. Nevertheless,
based on our holding in this case, we use this opportunity to clarify that a court
must give notice of its intent to entertain a section 57.105 motion on its own
initiative. As in this case, failure to provide such notice and an opportunity to be
heard before ordering the payment of attorney’s fees under section 57.105, or any
other basis, results in a deprivation of due process. The need to provide due
process outweighs any perceived departure of neutrality resulting from a court’s
initiation of its own section 57.105 motion.



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CIKLIN and KUNTZ, JJ., concur.

                           *      *        *

   Not final until disposition of timely filed motion for rehearing.




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