IN THE SUPREME COURT OF FLORIDA. Complainant, Case SC v. [TFB ,792(1B)] [TFB ,006(1B)] MICHAEL H. CREW, RESPONDENT S INITIAL BRIEF

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1 Filing # Electronically Filed 03/22/ :32:34 AM RECEIVED, 3/22/ :33:49, John A. Tomasino, Clerk, Supreme Court THE FLORIDA BAR, IN THE SUPREME COURT OF FLORIDA Complainant, Case SC v. [TFB ,792(1B)] [TFB ,006(1B)] MICHAEL H. CREW, Respondent. / RESPONDENT S INITIAL BRIEF Review of Report of Referee and Referee Orders CREW & CREW, P.A. Michael H. Crew Florida Bar No Miracle Strip Pkwy, SW Fort Walton Beach, FL Tel: (850) Attorneys for Respondent

2 TABLE OF CONTENTS Table of Citations ii Preliminary Statement 1 Statement of Case and Facts 2 Summary of the Argument 5 Standards of Review 6 Point 1 - Respondent Not Responsible for Bar s Expert Witness Fees A. The prevailing party cannot be responsible for the fees of the losing party s expert witness. B. The Fee Order is Improper. C. The Sanctions Order is Improper. D. Due Process Violations. 7 Point 2 - Report of Referee Is Unsubstantiated 21 Conclusion 26 Certificate of Service 27 Certificate of Compliance 27 Page ii

3 TABLE OF CITATIONS CASES BAC Home Loans Servicing, Inc. v. Headley, 130 So.3d 703 (Fla. 3rd DCA 2013). 6 Boca Burger, Inc. v. Forum, 912 So.2d 561 (Fla.2005) , 18 In re Cope, 848 So.2d 301 (Fla. 2003) Engel v. Rigot, 434 So.2d 954 (Fla. 3rd DCA 1983).... 8, 10 Ferdie v. Isaacson, 8 So.3d 1246 (Fla. 4th DCA 2009) , 16 Florida Patient s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985) Henn v. Ultrasmith Racing, LLC, 67 So.3d 444 (Fla. 4th DCA 2011)... 7 Hyster Co. v. Stephens, 560 So.2d 1334 (Fla. 1st DCA) Mason v. Highlands County Bd., 817 So.2d 922 (Fla. 2d DCA 2002) Moakley v. Smallwood, 826 So.2d 221 (Fla. 2002) N.C. v. Anderson, 882 So. 2d 990 (Fla. 2004) Palm Beach County School Dist. v. Ferrer, 990 So.2d 13 (Fla. 1st DCA 2008)... 7 Pelle v. Diners Club, 287 So. 2d 737 (Fla. 3d DCA 1974)... 6 Perlow v. Berg-Perlow, 875 So.2d 383 (Fla. 2004) Pevsner v. Frederick, 656 So.2d 262 (Fla. 4th DCA 1995) Philip Morris USA, Inc. v. Douglas, 110 So. 3d (Fla. 2013)... 6 Robin Roshkind, P.A. v. Machiela, 45 So.3d 480 (Fla. 4th DCA 2010) Rucker v. City of Ocala, 684 So. 2d 836 (Fla. 1st DCA 1996)... 6 Page iii

4 Santini v. Cleveland Clinic Fla., 65 So.3d 22 (Fla. 4th DCA 2011)... 14, 16-18, 20 Sea World of Fla., Inc. v. Ace Am. Ins. Cos., Inc., 28 So.3d 158 (Fla. 5th DCA 2010) Seminole County v. Chandrinos, 816 So.2d 1241 (Fla. 5th DCA 2002) Sexton v. Ferguson, 79 So.3d 51 (Fla. 4th DCA 2011) Shortes v. Hill, 860 So.2d 1 (Fla. 5th DCA 2003) State Farm Fire & Casualty Co. v. Palma, 629 So. 2d 830 (Fla. 1993) Strand v. Escambia County, 992 So.2d 150 (Fla. 2008) Swan Landing Development, LLC v. First Tennessee Bank Nat. Ass n, 97 So. 3d (Fla. 2d DCA 2012) The Florida Bar v. Del Pino, 955 So.2d 556 (Fla. 2007).... 6, 7, 22 Thornber v. City of Fort Walton Beach, 568 So.2d 914 (Fla.1990) Verizon Bus. Network Servs., Inc. v. Dep t of Corrs., 988 So.2d 1148 (Fla. 1st DCA 2008)... 6 Weatherby Associates, Inc. v. Ballack, 783 So.2d 1138 (Fla. 4th DCA 2001) Winter Park Imports, Inc. v. JM Family Enterprises, Inc., 77 So.3d 227 (Fla. 5th DCA 2011)... 8, 12 Page iv

5 STATUTES & RULES Fla. Stat Fla. Stat , 14, 18 Fla. Stat R. Regulating Fla. Bar (q)(5)... 8 R. Regulating Fla. Bar 3-7.6(m)(1)... 3 Page v

6 PRELIMINARY STATEMENT After pursuing this disciplinary action for over five years, the Bar filed a voluntary dismissal with prejudice in this case on July 25, R 156. The Bar dismissal expressly states: Each party shall bear its own costs. Id. Despite such dismissal, and despite Respondent being the prevailing party, the Bar and the Bar s expert sought to recover the expert witness s fees from Respondent, even though some of those fees had already been paid by the Bar. Based on misrepresentations of law and fact by Bar counsel and the Bar s expert, the Referee issued an order awarding such expert witness fee costs. Persons are referred to by the following short names: Bar Klein Respondent Sellers The Florida Bar Olivia Paiva Klein Respondent Michael H. Crew Steven E. Sellers, the Bar s expert witness Vann Judge Shane Vann, Referee (appointed September 24, 2013) The record is cited as R followed by the number for the item as shown on the Index to Pleadings prepared by the Referee and docketed with the Court on January 17, Pages, paragraphs, or line number(s) are included where applicable (e.g., R 19, p. 7, ln. 19). PAGE 1

7 STATEMENT OF THE CASE AND THE FACTS April 9, 2012, the Bar filed a complaint against Respondent based on two interrelated Bar complaints filed by Sandra Bifano and Jeff Prescott, alleging that Respondent charged excessive fees in their two civil cases. R 1. Bifano assisted Prescott with drafting the complaint and associated correspondence he filed with the Bar regarding Respondent. R 31, p. 1; R 200. In the underlying Bifano case, Respondent scheduled an evidentiary hearing on his liens, after which the trial court ruled in October 2008 that Respondent was entitled to charging and retaining liens against Bifano for his fees. R 32, Ex. A (Order Regarding Attorney Liens). The Bifano trial court later conducted a second evidentiary hearing on Respondent s charging lien. After this second hearing, the trial court issued an order in September 2012 finding that Respondent was entitled to a charging lien in the amount of $80,708 (approximately 87% of the fees Respondent billed to the Bifanos). R 32, Ex. B (Order on Charging Lien). Despite the Bifano trial court rulings confirming recovery of attorney fees by Respondent, the Bar continued prosecution of the instant case. On September 22, 2012, Respondent filed his motion for partial summary judgment. R 27. Respondent deposed two of the Bar s designated witnesses in October R 35 and R37. The Bar retained Steven E. Sellers as its expert witness in this case. R 56, p. 3. Respondent obtained production of documents from Sellers in November R 112. PAGE 2

8 On November 19, 2012, the Referee issued a memorandum order granting partial summary judgment against the Bar and in favor of Respondent (summary judgment order ultimately issued on June 24, 2013). R198; R 142. Respondent deposed the Bar s expert witness, Sellers, on June 28, R 123. The Bar conducted its first deposition in this case on July 2, 2013 (Respondent s expert witness, Fred Dudley). R 126. The Bar deposed Respondent on July 12, R 150. On July 25, 2013, the Bar filed a voluntary dismissal with prejudice which terminated this entire case. R 156. The Report of Referee should have been filed within 30 days of the Bar s dismissal. See R. Regulating Fla. Bar 3-7.6(m)(1) ( Within 30 days after the conclusion of a trial before a referee or 10 days after the referee receives the transcripts of all hearings, whichever is later, or within such extended period of time as may be allowed by the chief justice for good cause shown, the referee shall make a report and enter it as part of the record... ). Instead, the Bar s expert witness filed a motion to recover his fees from Respondent on August 5, R 157. On November 20, 2013, Respondent served counsel and the Referee with his proposed Report of Referee. R 201. In response, the Bar moved for an additional Report extension on November 22, 2013, despite the deadline for Report of the Referee already being extended twice. R 183. In the Motion to Extend, the Bar requested that the deadline for the Report be extended to January 17, R 183. The Bar requested the extension so that its expert could attempt to recover his witness fees from Respondent. R 183. (Motion to Extend, ( The Referee granted Mr. Sellers Motions regarding expert witness PAGE 3

9 fees in the amount of $3, Mr. Sellers will be submitting proposed orders to the Referee for his review and signature.... After reviewing Mr. Sellers [sic] proposed Orders and the case files, the newly-appointed Referee will need adequate time... ). On December 5, 2013, despite the Bar s dismissal, the Referee issued two orders requiring Respondent to pay compensation to Steven Sellers for his services as an expert witness for the Bar. R 187 and R 188. On December 16, 2013, Respondent filed his notice of intent to seek review of the orders. R 189. The Referee issued his Report of Referee on January 16, R 194. The Report apparently incorporates the prior two orders regarding Sellers fees. On February 14, 2014, Respondent filed his notice of intent to seek review of the Report. Respondent s Notice of Intent to Seek Review, The Florida Bar v. Crew, No. SC On February 17, 2014, Respondent filed his motion to consolidate the pending reviews. Respondent s Motion to Consolidate Reviews, The Florida Bar v. Crew, No. SC On March 6, 2014, the Court granted the motion to consolidate. Order, The Florida Bar v. Crew, No. SC PAGE 4

10 SUMMARY OF ARGUMENT Respondent is the prevailing party and, as a matter of law, cannot be responsible for the losing party s expert witness fees. Such expert witness fees are deemed to be costs, for which recovery by the Bar or its expert is prohibited. Sellers failed to prove that his fees were reasonable and necessary. Sellers failed to provide the required independent testimony supporting his motion for fees. The fee orders fail to include the required elements of a fee award, including specific findings of the number of hours reasonably expended. The purported award of sanctions is improper because such sanctions are not available in disciplinary cases. Respondent had no notice or opportunity to present evidence regarding the matter. The Referee failed to conduct an evidentiary hearing, and made no findings as the specific acts of bad faith conduct or the specific fees incurred as a result of the alleged bad conduct. The Referee violated Respondent s due process rights by conducting an ex parte hearing and by signing multiple orders proposed by the Bar without giving Respondent an opportunity to be heard or comment on such orders. The Report of Referee is replete with errors and is not supported by competent substantial evidence. PAGE 5

11 STANDARDS OF REVIEW A judgment or report of a referee should be reversed where it is erroneous, unlawful, or unjustified. Rule 3-7.7(c)(5) Rules Regulating The Florida Bar. Whether the procedure employed by the referee constituted a due process violation is reviewed de novo. Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419, fn. 7 (Fla. 2013). Procedural due process requires both reasonable notice and a meaningful opportunity to be heard. N.C. v. Anderson, 882 So. 2d 990, 993 (Fla. 2004). The constitutional guarantee of due process requires that judicial decisions be reached by a means that preserves both the appearance and reality of fairness. Verizon Bus. Network Servs., Inc. v. Dep t of Corrs., 988 So.2d 1148, 1151 (Fla. 1st DCA 2008) ( the right of every litigant to appear before an impartial tribunal is a fundamental tenet of the constitutional guarantee of due process. ). To constitute sufficient procedural due process, the opportunity to be heard must be meaningful and complete and not merely colorable or illusive. Rucker v. City of Ocala, 684 So. 2d 836, 841 (Fla. 1st DCA 1996). See also Pelle v. Diners Club, 287 So. 2d 737, 738 (Fla. 3d DCA 1974) ( It is fundamental that the constitutional guarantee of due process, which extends into every proceeding, requires that the opportunity to be heard be full and fair, not merely colorable and illusive. ). Denial of due process constitutes fundamental error. BAC Home Loans Servicing, Inc. v. Headley, 130 So.3d 703, 706 (Fla. 3rd DCA 2013); Verizon Bus. Network Servs., Inc. v. Dep t of Corrs., 988 So.2d 1148, 1151 (Fla. 1st DCA 2008). The referee s findings that present a question of law are reviewed de novo. The Florida Bar v. Hines, 39 So.3d 1196, 1199 (Fla. 2010). The referee s findings of fact are insufficient where there is a lack of supporting evidence in the record or the record clearly contradicts the referee s conclusions. The Florida Bar v. Del Pino, 955 So.2d 556, 560 (Fla. 2007). PAGE 6

12 POINT 1 Respondent Not Responsible for Bar s Expert Witness Fees After pursuing this disciplinary action for over five years, the Bar filed a voluntary dismissal with prejudice in this case on July 25, R 156. The Bar dismissal expressly states: Each party shall bear its own costs. Id. Despite such dismissal, and despite Respondent being the prevailing party, the Bar and the Bar s expert sought to recover the expert witness s fees from Respondent, even though some of those fees had already been paid by the Bar. Based on misrepresentations of law and fact by Bar counsel and the Bar s expert, the Referee issued orders requiring Respondent to pay fees to Sellers. As this Point involves the application of law to facts and due process violations, the Court reviews these issues de novo. A. The prevailing party cannot be responsible for the fees of the losing party s expert witness. Here, Respondent is the prevailing party because he prevailed on his motion for summary judgment and because the Bar dismissed the entire action with prejudice. E.g., Thornber v. City of Fort Walton Beach, 568 So.2d 914, 919 (Fla.1990) ( In general, when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party. ); Henn v. Ultrasmith Racing, LLC, 67 So.3d 444, 445 (Fla. 4th DCA 2011) ( The general rule is that when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party... [citation omitted]); and Palm Beach County School Dist. v. Ferrer, 990 So.2d 13, 15 (Fla. 1st DCA 2008) ( A defendant generally becomes the prevailing party when a plaintiff dismisses its action. [citations omitted] ). PAGE 7

13 Florida law authorizes the prevailing party to recover costs from the losing party, not vice versa. E.g., Fla. Stat ( Costs; recovery from losing party. (1) The party recovering judgment shall recover all his or her legal costs... ). Despite Respondent prevailing in the case, the Bar asserts that Respondent is responsible for the fees of its expert witness. These fees are costs, and recovery of these costs is expressly prohibited under the circumstances of this case. R. Regulating Fla. Bar (q)(5) ( costs may not be assessed against the respondent unless the bar is successful in some part... ). The Bar Rules define witness expenses as Taxable Costs. R (q)(1)(f) (Taxable Costs includes witness expenses ). Throughout Florida statutes and rules, expert witness fees are defined as costs. E.g., Fla. Stat Expert witnesses; fee. (2) Any expert or skilled witness who shall have testified in any cause shall be allowed a witness fee including the cost of any exhibits used by such witness in an amount agreed to by the parties, and the same shall be taxed as costs. ; Winter Park Imports, Inc. v. JM Family Enterprises, Inc., 77 So.3d 227, 231 (Fla. 5th DCA 2011) ( taxation of expert witness fees as costs, citing Fla. Stat ); Hyster Co. v. Stephens, 560 So.2d 1334, 1337 (Fla. 1st DCA), rev. denied, 574 So.2d 141 (Fla.1990) (determining that expert witness fee may be taxed as cost against deposing party); Engel v. Rigot, 434 So.2d 954, 956 (Fla. 3rd DCA 1983) ( We note that Dr. Engel may ultimately be responsible for these costs [expert witness fees]. ); FRCP 1.390(c) ( Any reasonable fee paid to an expert or skilled witness may be taxed as costs. ); Statewide Uniform Guidelines for Taxation of Costs in Civil Actions ( I. Litigation Costs That Should Be Taxed. C. Expert Witnesses. 1. A reasonable fee for deposition and/or trial testimony, and the costs of preparation of any court ordered report. ). PAGE 8

14 Here, Sellers had already invoiced the Bar for his fees and the Bar had already paid Sellers for at least some of these fees, so the Bar and Sellers had to avoid the prohibition on the Bar recovering costs by having Sellers return the paid fees back to the Bar. See communications below: Date Communication Sellers invoices the Bar for all of his fees and tells Klein that he will deduct from his invoice the amount he receives from Respondent. R 179, Ex. D, from Sellers Klein to Sellers: Since we dismissed the case, there are no taxable costs to be paid by either party. We each pay our own - see Rule 3-7.6(q). So I would designate your fees as expert fees and not taxable costs, or Crew could claim that there are no costs to either party in this case. R 179, Ex. D, from Klein to Sellers Sellers to Klein: I think the Bar already paid this invoice and so I will refund the money if the court includes it as part of my fee. R 179, Ex. D, from Sellers to Klein Klein to Respondent: Mr. Sellers is entitled to payment of his expert witness fee for preparation and appearance at the deposition on June 28, The Florida Bar is not seeking any costs. R 179, Ex. E, from Klein to Respondent Sellers pleading: There is no need for discovery [regarding his fee motion]. R 161, Klein to Sellers: I think we already paid that [court reporter] bill. I will check with Trudy - If you are going to pay it then we need to get our check back from trudy or you may need to send us a check for reimbursement. thanks. R 179, Ex. D, from Klein to Sellers Sellers to Klein: I looked at my account with TFB and see that TFB paid one of the two invoices that Crew should be paying. What is the best procedure for me to get a refund to TFB for $825?. R 179, Ex. F, from Sellers to Klein Klein to Sellers: Send a check made out to the Florida Bar for $825 to me and I will take care of it. R 179, Ex. F, from Klein to Sellers Klein discovery objection: The Florida Bar is not seeking reimbursement of its costs paid to Mr. Sellers from Crew. R 175, Sellers discovery objection: Request nos. 1, 2, 3, 4, 5, and 8 are not relevant in any sense to my motion... R 180, Ex. B, Sellers to Respondent, objecting to R 170. PAGE 9

15 Klein to Respondent: What Mr. Sellers was paid by The Florida Bar is irrelevant to the expert witness fee that you need to pay him, because his fees in response to your subpoenas are not costs. R 179, Ex. G, from Klein to Respondent. As shown above, Klein knows that the Bar cannot recover costs from Respondent, so Klein tells Sellers to make sure he does not designate his fees as costs. They arrange to have Sellers return some of his paid fee to the Bar, so that this amount can be recharacterized as allowable expert fees instead of disallowed costs. During this arrangement between Sellers and Klein, Klein is telling Respondent that he must pay Sellers fee and that the Bar is not seeking reimbursement of its costs paid to Sellers. See Table, supra. Also during this arrangement between Sellers and Klein, they are both objecting to Respondent s discovery requests on the issue. Id. Both Sellers and Klein objected to producing the above communications to Respondent. Sellers never provided the communications. Klein produced the communications only after repeated demands from Respondent, Respondent s objection to the fee hearing, and an order from the Court requiring production. R 160 and R 172. Klein ultimately admits that at least some of the fees sought by Sellers are costs and that the Bar already paid Sellers for those costs. R 174, p. 35 ln p. 36, ln. 2 ( In fact, we covered some of the costs relating to his third-party deposition duces tecum last November and last January, and we did we paid those costs. ). Sellers PAGE 10

16 also admits that: The Florida Bar paid Sellers for the time he spent serving as The Florida Bar expert witness. Respondent may not be liable to the [sic] reimburse The Florida Bar for this cost. R 161, 5. Despite such admissions, both Klein and Sellers continue to prosecute Sellers motion for recovery of fees from Respondent. As a result of their misrepresentations of law and fact, the Referee eventually issued orders requiring Respondent to pay fees to Sellers. In addition to the above communications, Sellers gets Klein to help him with his recovery efforts, since he knows that Referee Vann will defer to Klein. R 179, Ex. D, from Sellers to Klein dated Sept. 26, 2013 ( Thanks for coordinating the dates. I would do it but I think the referee will listen to you more. ) Sellers contract with the Bar had a cap of $3,000. R 179, Ex. B. Sellers and the Bar could circumvent the cap by having Respondent pay some of Sellers fee directly. According to Klein and Sellers, a voluntary dismissal can proceed as follows: 1. Plaintiff pays fees to its expert witness. 2. Plaintiff voluntarily dismisses the case. 3. Plaintiff has its expert witness return the amounts paid by Plaintiff. 4. Plaintiff s expert witness seeks recovery of its fees from Defendant. Added to the above process is that Plaintiff and its expert do not disclose that expert witness fees have been paid and returned. Also added is that Plaintiff and PAGE 11

17 expert object to any discovery requests from Defendant on this issue, claiming that such information is irrelevant. Finally, when Defendant objects to the above process, Plaintiff or its expert increase the harassment by threatening Defendant with sanctions under Fla. Stat Allowing the Bar or Sellers to recover their fees/costs in this manner would set a precedent allowing every dismissing party to shift the costs of its expert witnesses to the prevailing party. B. The Fee Order is Improper. Apparently incorporated in the Report of Referee are the two orders issued by the Referee on December 5, R 187 and R 188. These two orders purport to award fees to Sellers. Sellers can recover only his fees that were reasonable and necessary. Statewide Uniform Guidelines for Taxation of Costs in Civil Actions ( Burden of Proof. Under these guidelines, it is the burden of the moving party to show that all requested costs were reasonably necessary either to defend or prosecute the case at the time the action precipitating the cost was taken. ); Winter Park Imports, Inc. v. JM Family Enterprises, Inc., 77 So.3d 227, 231 (Fla. 5th DCA 2011) ( prevailing party will have to present testimony concerning necessity and reasonableness of fee ). Sellers had the burden to show that his work was necessary and reasonable for the case. But here, where the Bar dismisses its case with prejudice, none of its expert PAGE 12

18 costs are reasonably necessary. How can a party that loses the entire case prove that any of its efforts in the case were reasonably necessary? The Bar s voluntary dismissal of the case was a waiver of any claim to fees or costs, and an acknowledgment that no part of the Bar s efforts in the case were reasonably necessary. Sellers was required to provide independent testimony for the necessity of his services. Sea World of Fla., Inc. v. Ace Am. Ins. Cos., Inc., 28 So.3d 158, 160 (Fla. 5th DCA 2010) ( independent expert testimony is required ); Robin Roshkind, P.A. v. Machiela, 45 So.3d 480, 481 (Fla. 4th DCA 2010) ( case law throughout this state has adhered to the requirement of an independent expert witness to establish the reasonableness of fees. ). Despite such requirement, no expert testified for Sellers at his November 2013 fee hearing. R 195, Transcript of fee hearing on Nov. 13, The orders fail to include the required elements of a fee award, including specific findings of the number of hours reasonably expended. See Florida Patient s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985). As stated above, without independent expert testimony, there was no competent substantial evidence in the record to support any finding as to the number of hours that were reasonably necessary. PAGE 13

19 C. The Sanctions Order is Improper. Apparently incorporated in the Report of Referee is an order issued by the Referee that purports to award sanctions to Sellers. R 187. However, the purported award of sanctions violates applicable law (reviewed de novo), the purported sanctions hearing violated the Respondent s due process rights (reviewed de novo), there is no competent substantial evidence in the record supporting sanctions, and the Referee abused his discretion. See Boca Burger, Inc. v. Forum, 912 So.2d 561, 573 (Fla.2005) ( A lower court s decision to impose sanctions is reviewed under an abuse of discretion standard. ). This Court has expressly held that sanctions under Fla. Stat are not available in a disciplinary proceeding. In re Cope, 848 So.2d 301, 305 (Fla. 2003) ( Section sanctions apply only to civil proceedings. We have never applied the statute to proceedings before the JQC, or to any other administrative proceeding, for that matter. [internal citation omitted] ). Sellers admits at the fee hearing that the Referee could not award sanctions pursuant to Sellers unfiled motion for sanctions. R. 195, p. 7, ln. 20 ( I have a motion that I sent to him. It has to wait 21 days before I can file it. ). Thus, the Referee apparently adopted Sellers premature sanctions motion as his bases for sanctions. This is prohibited. Santini v. Cleveland Clinic Florida, 65 So.3d PAGE 14

20 22, 37 (Fla. 4th DCA 2011) ( a trial court cannot simply adopt a party s motion as its own in order to circumvent the safe harbor ). Since his motion had not yet been filed, Sellers never provided any notice for a hearing on his motion. Also, the Referee never provided any notice that he would consider sanctions at the hearing. Thus, Respondent had no notice or opportunity to be heard on the sanctions issue. See Moakley v. Smallwood, 826 So.2d 221, 227 (Fla. 2002) ( the trial court s exercise of the inherent authority to assess attorneys fees against an attorney... is appropriate only after notice and an opportunity to be heard-including the opportunity to present witnesses and other evidence. ). Furthermore, the Referee made no findings as the specific acts of bad faith conduct or the specific fees incurred as a result of such conduct. See Moakley v. Smallwood, 826 So.2d 221, 227 (Fla. 2002) (sanctions must be supported by detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorneys fees. Thus, a finding of bad faith conduct must be predicated on a high degree of specificity in the factual findings. In addition, the amount of the award of attorneys fees must be directly related to the attorneys fees and costs that the opposing party has incurred as a result of the specific bad faith conduct of the attorney. ). A full evidentiary hearing is required on the motion for sanctions. Ferdie v. Isaacson, 8 So.3d 1246, 1250 (Fla. 4th DCA 2009) ( A trial court s decision under PAGE 15

21 section (1) must be supported by competent substantial evidence; therefore, it follows that a full evidentiary hearing on the good faith issue is necessary. ). A full evidentiary hearing is one during which the party was represented by counsel, examined witnesses, and had the opportunity to offer evidence. Ferdie v. Isaacson, 8 So.3d 1246, 1250 (Fla. 4th DCA 2009). E.g., Santini v. Cleveland Clinic Florida, 65 So.3d 22, 35 (Fla. 4th DCA 2011) ( We then defined a full hearing as one during which the party was represented by counsel, examined witnesses, and had the opportunity to offer evidence. (citation and internal quotation marks omitted). A motion for sanctions must be supported by substantial, competent evidence presented at the hearing on attorney s fees or otherwise before the court and in the record. Mason v. Highlands County Bd., 817 So.2d 922, 923 (Fla. 2d DCA 2002), review dismissed, 839 So.2d 698 (Fla.2003) ( A finding that a party is entitled to recover attorney s fees under section must be based upon substantial, competent evidence presented at the hearing on attorney s fees or otherwise before the court and in the record. ). See also, Swan Landing Development, LLC v. First Tennessee Bank Nat. Ass n, 97 So. 3d 326, 328 (Fla. 2d DCA 2012) ( A finding that a party is entitled to recover attorney s fees under section must be based upon substantial, competent evidence presented at the hearing on attorney s fees or otherwise before the court and in the record. (citation omitted)); Weatherby Associates, Inc. v. Ballack, 783 So.2d 1138, 1141 (Fla. 4th DCA 2001) ( The trial PAGE 16

22 court s finding must be based upon substantial competent evidence presented to the court at the hearing on attorney s fees or otherwise before the court and in the trial court record. ); Shortes v. Hill, 860 So.2d 1, 2 (Fla. 5th DCA 2003) ( A finding that a party is entitled to recover attorney s fees under section must be based on substantial, competent evidence presented at the hearing on attorney s fees or otherwise before the court and in the record. ). Here, there was no notice to Respondent, no evidentiary hearing, no opportunity for Respondent to be heard, no opportunity to examine witnesses, no opportunity to present evidence, and no competent substantial evidence in the record that supports sanctions. This violates Respondent s due process rights. E.g., Santini v. Cleveland Clinic Florida, 65 So.3d 22, 39 (Fla. 4th DCA 2011) ( the trial court made several due process errors with regard to sanctioning McCoy based on section , Florida Statutes (2007). The most critical were not making express findings of bad faith and never holding a full evidentiary hearing regarding the paramount issue of good faith. ). The Referee apparently awarded sanctions because Respondent contested Sellers claim for fees and asked for an evidentiary hearing on the matter. R. 187 ( Respondent nevertheless required Sellers to attend the hearing in Blountstown, Florida, on September 11, 2013, and to provide an expert witness to confirm the PAGE 17

23 reasonableness of his expert witness fees. ). As stated above, Sellers was required to provide such an expert witness as a basic element of his request for fees. In effect, the Referee is awarding Sellers his fees for litigating the amount of his fees, which is prohibited. See State Farm Fire & Casualty Co. v. Palma, 629 So. 2d 830 (Fla. 1993) (attorney fees not recoverable for litigating the amount of fees); and Seminole County v. Chandrinos, 816 So.2d 1241, 1256 (Fla. 5th DCA 2002) ( fees cannot be awarded for time spent litigating the amount of expert fees ). In addition to the above deficiencies, Sellers is not a party to this case and thus is not covered by Fla. Stat See, e.g., Sexton v. Ferguson, 79 So.3d 51 (Fla. 4th DCA 2011), and Pevsner v. Frederick, 656 So.2d 262, 265 (Fla. 4th DCA 1995) ( designated expert witness who is not a party to the action ). Sanctions can be imposed on appeal where the appellee asserts a frivolous defense of a patently erroneous trial order. Boca Burger, Inc. v. Forum, 912 So.2d 561 (Fla. 2005); and Santini v. Cleveland Clinic Florida, 65 So.3d 22, 40 (Fla. 4th DCA 2011). D. Due Process Violations. Referee Vann signed four proposed orders submitted by Klein without asking Respondent for a proposed order or allowing Respondent an opportunity to comment on the proposed order. R 187, 188, 193, and 194. Such actions are an abuse of discretion and violated Respondent s due process rights. E.g., Santini v. Cleveland PAGE 18

24 Clinic Florida, 65 So.3d 22, (Fla. 4th DCA 2011); and Strand v. Escambia County, 992 So.2d 150, 155 (Fla. 2008). Accordingly, these four orders are void. Klein sent the first two proposed orders to the Referee on December 3, R 202, from Klein to Referee. In response, Respondent sent an to Klein and the Referee on December 4, 2013, stating that he was in depositions all week and would provide comments to the proposed orders the following week. R 203, from Respondent. The Referee signed both of Klein s proposed orders the next day, December 5, 2013, without making any changes. Klein sent the third proposed order to the Referee on December 20, R 205, letter from Klein to Referee regarding the Report of Referee. Respondent previously sent the Referee his proposed Report of Referee on November 20, R 201. Without conducting any hearing or inviting comment on Klein s proposed order, the Referee signed Klein s proposed order on January 16, 2013, without making any changes. As stated below, the signed Report of Referee is replete with errors and statements that are not supported by any competent substantial evidence in the record. Klein sent the fourth proposed order to the Referee on January 6, R 206. Without conducting any hearing or inviting comment on Klein s proposed order, the Referee signed Klein s proposed order on January 7, 2014, without making any changes. PAGE 19

25 This Court has made it clear that: While a trial judge may request a proposed final judgment from either or both parties, the opposing party must be given an opportunity to comment or object prior to entry of an order by the court. Moreover, the better practice would be for the trial judge to make some pronouncements on the record of his or her findings and conclusions in order to give guidance for preparation of the proposed final judgment. Perlow v. Berg-Perlow, 875 So.2d 383, 390 (Fla. 2004). Here, the Referee entered the orders proposed by Klein without making pronouncements on the record, allowing opportunity for comment, and in two cases without conducting any hearing at all regarding the subject matter of the proposed orders. This amounts to an abuse of discretion and violates Respondent s due process rights. E.g., Santini v. Cleveland Clinic Florida, 65 So.3d 22, (Fla. 4th DCA 2011) ( On this basis alone, we could reverse the order as the trial court abused its discretion by not exercising independent judgment. ). The conduct of the hearing on November 13, 2013, also violated Respondent s due process rights. See Respondent s Motion to Correct the Record (e.g., Referee knew that Respondent was delayed by road construction, but failed to delay the hearing or allow Respondent to appear by telephone). PAGE 20

26 POINT 2 Report of Referee Is Unsubstantiated The Summary of Proceedings within the Report of Referee contains a lengthy and superfluous recitation of statements for which there is no competent substantial evidence in the Record. The Report of Referee also contains numerous errors that conflict with evidence in the record. The errors in the Report are summarized below. Pg Erroneous Statement Correct Statement 1 On April 9, 2012, The Florida Bar filed its Complaint against Respondent... On April 10, 2012, The Florida Bar filed its Complaint against Respondent... 3 Case No ,792(lA) Case No ,792(lB) 3 Respondent also filed a Motion for Judicial Notice dated October 5, Respondent filed a Notice of Production from Non-Parties for 3 additional witnesses 3 Notices of Deposition Duces Tecum on the same witnesses 4 The Referee rescheduled the final hearing until December 11, 12, and 15, filed Objections to Respondent s Requests for NonParty Production... on October 15, Florida Bar also filed its Objections to Respondent s Motion for Protective Order Respondent also filed a Motion for Judicial Notice dated October 4, 2012 Respondent filed a Notice of Production from Non-Parties for two additional witnesses (Sandra & Carl Bifano) Notices of Deposition Duces Tecum on the two witnesses and Jeff Prescott The Referee rescheduled the final hearing until December 11, 12, and 14, filed Objections to Respondent s Requests for NonParty Production... on October 12, Florida Bar also filed its Objection to Crew Notice of Hearing and Motion for Protective Order PAGE 21

27 4-5 Florida Bar also filed its Objections to... Respondent s Motion Opposing Florida Bar s Objection to Non-party Production. 5 On October 23, 2012, Respondent cancelled the Summary Judgment hearing... 5 On October 23, 2012, Respondent... requested a continuance... 5 Respondent also rescheduled his other Motions Opposing The Florida Bar s Objection to Non-Party Production and Motion for Protective Order... 6 The third-party witnesses who had been served with Respondent s Subpoena Duces Tecum Without Deposition filed objections... 6 The third-party witnesses who had been served with Respondent s Subpoena Duces Tecum Without Deposition filed... motions for protective order... 6 The third-party witnesses... filed objections to production of the voluminous documents requested... 6 The third-party witnesses... filed objections... on November 26, and November 27, The Referee stated on the record that he would not rule on Respondent s Motion for Protective Order without an evidentiary hearing being set on the matter. Florida Bar also filed its Objections to... Crew Notice of Hearing and Crew Motion Opposing Florida Bar s Objection to Non-party Production. On October 23, 2012, Respondent cancelled the Summary Judgment hearing due to the affidavits filed in bad faith by The Florida Bar. On October 25, 2012, Respondent... requested a continuance... Due to the Bar s objections, Respondent had to reschedule his Motion for Protective Order and Motion Opposing Florida Bar s Objection to Non-party Production... Three out of the five third-party witnesses who had been served with Respondent s Subpoenas Duces Tecum Without Deposition filed objections... Two out of the five third-party witnesses who had been served with Respondent s Subpoenas Duces Tecum Without Deposition filed... motions for protective order... The third-party witnesses... filed objections to production on the bases of relevance and privilege... The third-party witnesses... filed objections... on [date cannot be determined from the Record] [there is no basis in the Record for this statement] PAGE 22

28 7 The Referee entered an Order rescheduling the final hearing for August 28, 29, and 30, The Referee issued his decision on February 26, The Florida Bar served Respondent s expert witness, Frederick Dudley, with a Notice of Taking Deposition Duces Tecum on June 17, Mr. Prescott filed an Affidavit on July 8, 2013, stating that he had produced all the documents that he had to Respondent. 8 The Referee instructed Respondent to prepare and submit proposed orders to the Referee which he failed to do. 8 The Referee entered an Order on Partial Summary Judgment... regarding only the issue of excessive fees... 9 Based on information obtained in conjunction with Respondent s deposition, The Florida Bar filed a Notice of Voluntary Dismissal with Prejudice a date to which Respondent had initially agreed to which Respondent objected on October 10, requiring The Florida Bar and Mr. Sellers to provide limited discovery responses. The Referee entered an Order rescheduling the final hearing for March 26, 27, and 28, The Referee issued his decision on November 19, The Florida Bar served Respondent s expert witness, Frederick Dudley, with a Subpoena Duces Tecum for Deposition on June 21, Mr. Prescott filed an Affidavit on July 8, 2013, stating: I have completed another search of my office and have provided Michael Crew with a copy of all of the documents he does not have. The Referee instructed Respondent to prepare and submit proposed orders to the Referee which he did not do before the Bar filed its Voluntary Dismissal with Prejudice. The Referee entered an Order on Partial Summary Judgment... regarding the issue of excessive fees and costs... [there is no basis in the Record for this statement] [there is no basis in the Record for this statement]... to which Respondent filed a second objection on October 10, requiring The Florida Bar and Mr. Sellers to provide all documents that relate to the issue of the expert witness fees. PAGE 23

29 10... without the agreement of the Referee or Mr. Sellers. 10 The Florida Bar and Mr. Sellers responded to Respondent s Motion for Contempt. 10 At the November 13, 2013, motion hearing... [there is no basis in the Record for this statement] The Florida Bar responded to Respondent s Motion for Contempt. At the November 13, 2013, motion hearing conducted without the participation of Respondent Respondent failed to appear... [see Respondent s Motion to Correct the Record] and the Referee granted both of Mr. Sellers motions Respondent filed a Motion for Stay Pending Appeal All items properly filed... constitute the record in this case and are forwarded to the Supreme Court of Florida. [first two lines omit that the Referee signed Klein s proposed orders without obtaining proposed orders from Respondent or allowing time for Respondent to comment] [Report omits that the Referee signed Klein s proposed order without conducting a hearing, obtaining a proposed order from Respondent, or allowing time for Respondent to comment] [The record documents forwarded by the Referee to the Supreme Court fail to include all items properly filed. See Respondent s motions to correct and supplement the record.] Instead of conducting a hearing on the proposed Report of Referee or carefully reviewing the evidence in the record, the Referee simply adopted the Bar s proposed Report without any changes. As stated above, the Referee s verbatim adoption of the Bar s proposed Report is an abuse of discretion and a violation of Respondent s due process rights. PAGE 24

30 Furthermore, such an extensive recitation of the items listed would require a lengthy evidentiary hearing so that the parties could submit evidence or testimony substantiating each item. Rather than conducting such an unnecessary hearing and prolonged effort, the Court should instead adopt the proposed Report submitted by Respondent. See R 201. PAGE 25

31 CONCLUSION Respondent is the prevailing party and, as a matter of law, cannot be responsible for the losing party s expert witness fees. Such expert witness fees are deemed to be costs, for which recovery by the Bar or its expert is prohibited. Sellers failed to prove that his fees were reasonable and necessary. Sellers failed to provide the required independent testimony supporting his motion for fees. The fee orders fail to include the required elements of a fee award, including specific findings of the number of hours reasonably expended. The purported award of sanctions is improper because such sanctions are not available in disciplinary cases. Respondent had no notice or opportunity to present evidence regarding the matter. The Referee failed to conduct an evidentiary hearing, and made no findings as the specific acts of bad faith conduct or the specific fees incurred as a result of the alleged bad conduct. The Referee violated Respondent s due process rights by conducting an ex parte hearing and by signing multiple orders proposed by the Bar without giving Respondent an opportunity to be heard or comment on such orders. The Report of Referee is replete with errors and is not supported by competent substantial evidence. As a result of these pervavise defects and violations of Respondent s due process rights, the Court should correct the Report of Referee and reverse any award in favor of Sellers. PAGE 26

32 CERTIFICATE OF SERVICE The undersigned certifies that on March 21, 2014, a copy hereof was furnished by to Olivia Klein, Adria E. Quintela, and Steven Sellers: oklein@flabar.org, aquintel@flabar.org, ldaughton@flabar.org, ssellers@sellersfirm.com. CERTIFICATE OF COMPLIANCE I certify that this brief complies with the font requirements of Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. Crew & Crew, P.A. Attorneys for Respondent 238 Miracle Strip Pkwy SW Ft. Walton Beach, FL (850) ; fax mike@crewlaw.com; service@crewlaw.com /s/ Michael H. Crew (FBN 81213) PAGE 27