DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

DANIEL PANSKY,

Appellant,

v.

VICTORIA PANSKY,

Appellee.

No. 4D15-3940

[November 28, 2018]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Timothy 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.

KUNTZ, 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 the 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, the 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 admitted
2

into evidence. As a result, the billing records were 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 support 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 in 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 reversed in part.

TAYLOR and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

 

1 The Law Firm argues this 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 stipulation, unsworn statements 

by the attorneys cannot be the basis for factual findings by the trial court.” Brown v. Sch. 

Bd. of Palm Beach Cty., 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.”).