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Sunday, March 29, 2020

Appellate court rules attorney doesn't have to pay fees as sanction


By Kyla Asbury | Mar 12, 2020

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WEST PALM BEACH — An appeals court ruled that an attorney does not have to pay attorney's fees to opposing counsel because her due process rights were violated.

Fourth District Court of Appeals Judges Spencer D. Levine, Melanie G. May and Jonathan D. Gerber found that the trial court imposed the attorney's fees sanction without first providing notice and an opportunity for a hearing. The opinion was filed on Feb. 26 and Levine authored the majority opinion.

Wanda Rufin was ordered to pay $3,900 to opposing counsel as a sanction for her conduct, but the issue was not provided notice for a hearing, the opinion states.

Rufin was representing Marco Aurelio Perez in a divorce case and a hearing was to be held involving a motion for attorney's fees "based on her need and the husband's ability to pay" and a motion for contempt against Perez due to failure to comply with a production request.

"Significantly, the notice of hearing made no mention that any attorney’s fees would be sought against Rufin personally as a sanction," the opinion states.

During the hearing, the trial court granted the attorney's fees motion, but Alicia Maria Borga's counsel immediately asked that the court award the attorney's fees as a sanction against Rufin in the amount of $3,900, which the court granted, according to the appellate court opinion.

"Because the trial court imposed the attorney’s fees sanction without notice and opportunity to be heard, we reverse and remand," Levine wrote. 

Since the notice of hearing only noted the attorney's fees against Perez and the motion for contempt against Perez, there was no notice regarding sanctions against Rufin, according to the opinion.

The court found that Rufin's due process rights were violated because she was not given a hearing or notice for the sanctions.

Florida Fourth District Court of Appeals Case number 4D19-491

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