Fees Without Facts: Evidentiary Hearing Necessary to Determine Amount & Reasonableness of Attorney’s Fees

The case holds that the trial court abused its discretion and violated due process by determining the amount and reasonableness of attorney’s fees in contested guardianship/trust proceedings without conducting the evidentiary hearing that had been requested and ordered; the fee orders are reversed and remanded for an evidentiary hearing. Facts • The appeal arises from incapacity and guardianship proceedings concerning the parties’ mother, Joyce Torcise, and a related trust case, after roughly two years of litigation involving a Health Care Surrogate Designation. • The trial court bifurcated entitlement to fees from amount, later entering an order on July 20, 2021 awarding entitlement to both parties and directing mediation on the amount of fees. • Mediation failed, and Sandra Fuller requested an evidentiary hearing to determine the amount and reasonableness of attorney’s fees; the court entered multiple orders stating an evidentiary hearing would be held and even scheduled one.F • Instead of actually holding that hearing, the court directed the parties to submit evidence and proposed orders, then adopted Torcise’s proposed order verbatim, awarding Torcise over $800,000 in fees and costs from Fuller’s share of two trusts and awarding Fuller only $6,718.60 of the $742,732.30 she had requested. • Fuller moved for rehearing, arguing due process and evidentiary-hearing error; the trial court denied rehearing, leading to this consolidated appeal of three fee orders. Issue Whether the trial court abused its discretion and violated due process by failing to conduct a requested and repeatedly-ordered evidentiary hearing on the amount and reasonableness of attorney’s fees before entering substantial fee awards in favor of Torcise and against Fuller. Rule • Awards of attorney’s fees and costs are reviewed for abuse of discretion, and evidentiary findings must be supported by competent, substantial evidence. • When a party requests an evidentiary hearing on attorney’s fees, the court must hold one before fixing the amount, and a court cannot substitute paper submissions or discovery for the mandatory evidentiary hearing in a contested fee matter without violating due process. • A party preserves the right to an evidentiary hearing by requesting it; the right is not waived merely because the party later participates in procedures the court substitutes for that hearing or fails to object again after the court pursues its alternative process. • The court relies on United Automobile Insurance Co. v. Professional Medical Group, Inc., 318 So. 3d 1261 (Fla. 3d DCA 2021), which held that requesting an evidentiary hearing preserves the right to it and that substituting discovery procedures for an evidentiary hearing constitutes a due process violation. • The court also cites Bateman v. Service Insurance Co., 836 So. 2d 1109 (Fla. 3d DCA 2003), recognizing that when a trial court fails to conduct an ordered evidentiary hearing on fees, the record lacks evidentiary support for the fee award. Application • Fuller expressly requested an evidentiary hearing on the amount and reasonableness of attorney’s fees; the trial court entered multiple orders recognizing that an evidentiary hearing was to be held and even set one, which preserved her right to that hearing. • Despite these orders, the court elected not to conduct the evidentiary hearing and instead requested submissions of evidence and proposed orders, ultimately adopting Torcise’s proposed order and awarding him more than $800,000 while largely denying Fuller’s requested fees. • Under United Auto, Fuller’s initial request for an evidentiary hearing was sufficient to preserve her right; the fact that the trial court moved to a “paper” procedure and that Fuller later entered an agreed order extending deadlines for submissions did not amount to an affirmative waiver of the previously requested evidentiary hearing. • The appellate court rejects Torcise’s waiver arguments (failure to object again and participation in the extended submission process), noting there is no affirmative waiver and emphasizing that the trial court had repeatedly committed to an evidentiary hearing. • As in Bateman, the failure to actually conduct the evidentiary hearing—despite orders promising one—means the record lacks the necessary evidentiary foundation to support the fee amounts, so the trial court’s reliance on written submissions in lieu of that hearing constitutes an abuse of discretion and a denial of due process. Conclusion The Third District holds that the trial court abused its discretion and violated Fuller’s due process rights by failing to conduct the requested and ordered evidentiary hearing on the amount and reasonableness of attorney’s fees, and that Fuller did not waive her right to such a hearing. The court reverses the three attorney’s fee and cost orders and remands with instructions to conduct an evidentiary hearing on the reasonableness of the fees before determining the amounts to be awarded.