### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

DANIEL PANSKY

, Appellant,

v.

VICTORIA PANSKY

, Appellee

.

No. 4D 15

- 3940

[ November 28, 2018 ]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County ; Tim othy L. Bailey , Judge; L.T. Case No.

062012DR013820AXXXCE

.

Troy William Klein, West Palm Beach, for appellant.

Barry S. Franklin of Barry S. Franklin & Associates, P.A., Aventura, for appellee.

K UNTZ , J

.

Daniel Pansky appeals the circuit court’s final order granting the Law Firm of Barry S. Franklin & Associates, P.A.’s motion for sanctions under section 57.105( 1), Florida Statutes (2015). Because t he record supports the court’s finding that Mr. Pansky’s third motion to vacate was meritless

, we affirm in part

. Yet we agree that the court erred when it determined

the amount of fees to award the Law Firm without receiving any testimony

or other evidence. Thus, we reverse in part.

“A finding that a party is entitled to recover attorney’s fees under section 57.105 must be based upon substantial, competent evidence presented at the hearing on attorney’s fees or otherwise before the court

and in the record.” Mason v. Highlands Cty. Bd . of Cty. Comm’rs , 817 So. 2d 922, 923 (Fla. 2d DCA 2002) (citing Strothman v. Henderson Mental Health Ctr., Inc. , 425 So. 2d 1185, 1185

– 86 (Fla. 4th DCA 1983)).

Here, t he court determined the amount of sanctions to award the Law

Firm based exclusively on argument of counsel. Although counsel provided a copy of certain billing records, those records were not admitted2 into evidence. As a result, the billing records we re not competent evidence to support the court’s determination of the amount of sanctions

. See, e.g.

, Diwakar v. Montecito Palm Beach Condo. Ass’n, Inc. , 143 So. 3d 958, 960 (Fla. 4th DCA 2014) (“Competent evidence includes invoices, records and other information detailing the services provided as well as the testimony from the attorney in su pport of the fee.” (quoting Brewer v. Solovsky , 945 So. 2d 610, 611 (Fla. 4th DCA 2006)) ); Chandler v. KCCS, Inc. , 224 So. 3d 929, 929 (Fla. 2d DCA 2017) (reversing amount of sanctions fees awarded where “the only evidence detailing the work actually completed consisted

of an affidavit and related documents that were neither introduced into evidence nor stipulated to at the hearing”). 1

The court’s final order is affirmed i n part and reversed in part, and we remand the case for the limited purpose of holding an evidentiary hearing

to determine the amount of sanctions to be awarded

.

Affirmed in part and reverse d in part.

T

AYLOR and C ONNER , JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

1 The Law Firm argues th is issue was not properly preserved because Mr. Pansky did not object to the court’s reliance on unsworn testimony as the basis for determining the

amount of sanctions. This is a compelling argument. But, as Judge Gross has explained, this panel is bound to conclude that “ in the absence of a stipulati on, unsworn statements by the attorneys cannot be the basis for factual findings by the trial court. ” Brow n v. Sch. Bd. of Palm Beach C t y

. , 855 So. 2d 1267, 1270 (Fla. 4th DCA 2003) (Gross, J., concurring specially) (“ It seems to me that the law should require an objection to preserve the issue for appellate review. ”).