IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

RONALD HOROWITZ,

Appellant,

v. Case No. 5D21-2738

LT Case Nos. 2017-SC-000086, 

2019-AP-000001

ROSSDALE CLE, INC., 

Appellee. 

________________________________/

Opinion filed February 17, 2023 

Appeal from the County Court 

for Flagler County, 

D. Melissa Distler, Judge.

Ronald Horowitz, Palm Coast, pro se. 

Jordan A. Dresnick, Miami, for 

Appellee. 

JAY, J. 

In this case from the small claims division of the county court, the court 

dismissed Appellant’s complaint and ordered him to pay attorney’s fees 

pursuant to section 57.105, Florida Statutes (2019). We affirm the dismissal 
2

of the complaint without further discussion. However, we reverse the award 

of attorney’s fees.

Among his arguments for reversal, Appellant maintains that the court’s 

fee award was not supported by competent, substantial evidence. Normally, 

the lack of a hearing transcript would preclude review of this issue. See 

Lizardi v. Federated Nat’l Ins. Co., 322 So. 3d 184, 190 (Fla. 2d DCA 2021). 

Here however, the face of the order, which includes an inventory of the 

evidence presented at the hearing, shows that Appellee (“Rossdale”) failed 

to present the evidence necessary to receive an attorney fee award. Thus, 

review is possible. See Biss v. Biss, 292 So. 3d 846, 847 (Fla. 5th DCA 2020) 

(noting that the lack of a transcript does not prevent the court from addressing 

errors that appear on the face of the record); see also Phillips v. Phillips, 1 

So. 2d 186, 188 (Fla. 1941) (recognizing that statements in a trial court’s 

judgment are presumed to be accurate unless they are contradicted by other 

parts of the record).

I.

An award of attorney’s fees under section 57.105 must be supported 

by competent, substantial evidence. See Shortes v. Hill, 860 So. 2d 1, 2 (Fla. 

5th DCA 2003). This evidence should include “records detailing the amount 

of work performed and the time to perform each task” as well as expert 
3

testimony to establish “both the reasonableness of the hours and a 

reasonable hourly rate.” Nants v. Griffin, 783 So. 2d 363, 366 (Fla. 5th DCA 

2001). But the attorney who performed the work “is not required to testify 

when there is competent evidence filed in support of the motion or introduced 

at the hearing detailing the services performed.” Id.

In this case, the order indicates that the court received the following 

evidence from Rossdale: affidavits from two fee experts, testimony from one 

of those experts, an affidavit from Rossdale’s Counsel—which Rossdale did 

not file until “after the conclusion of the hearing”—and two other documents. 

The court’s order describes the first of those documents as “an exhibit which 

purports to be an unsworn timesheet with no other title or description,” and 

the second as “a document titled Defendant’s calculation of fees & costs 

against Plaintiff following the Court’s granting of attorney’s fees.” The court 

noted that the second document, while declaring to be under penalty of 

perjury, did not otherwise comply with the requirements for an affidavit.

The court went on to note that no corporate representative for 

Rossdale testified and that “[t]here was never any retainer agreement or 

billing submitted.” The court then attempted to complete a Rowe1 analysis, 

1 Fla. Patient’s Comp. Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985) 

(identifying the factors that a court is to consider when deciding whether 

requested attorney’s fees are reasonable). Here, it was proper to use the 
4

but as to several of the factors, it indicated that the factor was “unknown due 

to lack of evidence.” And before decreeing its calculated fee award, the court 

acknowledged that Appellant’s “point regarding the lack of competent 

substantial evidence as to [Counsel for Rossdale’s] actual hourly rate and 

hours expended is well taken.”

Thus, the court did not have an adequate evidentiary foundation to 

calculate a reasonable amount of fees to award Rossdale. See Nants, 783 

So. 2d at 366; see also Schreiber v. Schreiber, 331 So. 3d 874, 877 (Fla. 5th 

DCA 2021) (“In the instant case, Former Wife presented solely expert 

testimony of fees; there was no properly authenticated fee affidavit or 

testimony from any of Former Wife’s attorneys, nor did Former Wife introduce 

Rowe factors to evaluate the reasonableness of the requested fee. Section 

57.105(1) allows a court to award “reasonable” attorney’s fees. This is the 

same term that appears in the statute that was at issue in Rowe, which 

predates section 57.105 by several years. Therefore, as the Fourth DCA

observed in Safeco Insurance Co. of Illinois v. Heikka, 294 So. 3d 324, 332 

(Fla. 4th DCA 2020), the prior construction canon applies. See Fla. Highway 

Patrol v. Jackson, 288 So. 3d 1179, 1182–83 (Fla. 2020) (“The prior 

construction canon teaches that, ‘when judicial interpretations have settled 

the meaning of an existing statutory provision, repetition of the same 

language in a new statute indicates, as a general matter, the intent to 

incorporate its judicial interpretations as well.’” (quoting Rowe v. N.H. Motor 

Transp. Ass’n, 552 U.S. 364, 370 (2008))); see also Taggart v. Lorenzen, 

139 S. Ct. 1795, 1801 (2019) (“Our conclusion rests on a longstanding 

interpretive principle: When a statutory term is ‘obviously transplanted from 

another legal source,’ it ‘brings the old soil with it.’” (quoting Hall v. Hall, 138 

S. Ct. 1118, 1128 (2018))).
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into evidence, or even proffer, any time sheets or billing records from any of

Former Wife’s attorneys. Former Wife’s failure to adduce competent evidence

of fees resulted in a complete lack of evidence on which a fee award could

properly be based and requires reversal.” (footnote omitted)).

II.

As for whether Rossdale should have another opportunity to present 

the required evidence on remand, this court “has consistently held that a party 

must have presented some competent evidence of fees at the fee hearing in 

order to justify remand for another opportunity to prove fees after reversal.” 

Schreiber, 331 So. 3d at 878; see Warner v. Warner, 692 So. 2d 266, 268 

(Fla. 5th DCA 1997) (“Remand for the requisite [Rowe] findings is not 

appropriate here because the wife failed to bring forth any evidence to 

support such findings.”). Here, the only evidence that Rossdale timely 

presented was the testimony of its expert—along with his affidavit and the 

affidavit of a second fee expert who did not testify—and the two non-affidavit 

documents described above. There was no viable affidavit from Rossdale’s 

Counsel because he did not file his affidavit until “after the conclusion of the 

hearing.”2 And neither he nor any other member of Rossdale’s legal team

2 Under the facts of this case, relying on the untimely affidavit would be

error. See Michael A. Polesso, Inc. v. Williams, 582 So. 2d 96 (Fla. 5th DCA

1991) (finding that the trial court erred by determining attorney’s fees “merely 
6

testified at the hearing. Without such evidence, the court had no basis for 

calculating a fee award because no witness provided testimony 

authenticating any sworn billing records that detailed the nature and volume 

of the legal work completed. See Nants, 783 So. 2d at 366.

Under comparable facts, this court has held that the party seeking fees 

should not receive another opportunity to present the required evidence. See 

Schreiber, 331 So. 3d at 877–78 (holding that remand for another evidentiary 

hearing was not appropriate when the moving party had “presented solely 

expert testimony of fees” without a “properly authenticated fee affidavit or 

testimony” from any of the moving party’s attorneys); Wiley v. Wiley, 485 So. 

2d 2, 3 (Fla. 5th DCA 1986) (reaching the same result in a case where the 

attorney who performed the work at issue did not testify or submit an affidavit 

regarding his services); see also Ali v. Wells Fargo Bank, N.A., 264 So. 3d 

1096, 1097 n.1 (Fla. 5th DCA 2019) (declining a party’s invitation to remand 

on contested, untimely affidavits”); Soundcrafters, Inc. v. Laird, 467 So. 2d 

480, 481 (Fla. 5th DCA 1985) (reversing an award of attorney’s fees in a 

case where the court permitted a witness “to testify by way of affidavit” 

without being cross-examined); see also Robinson v. Nationstar Mortg. LLC, 

301 So. 3d 1059, 1063 (Fla. 2d DCA 2019) (noting that to reopen a case to 

present additional evidence, a movant must show that the presentation of 

evidence does not unfairly prejudice the opposing party and that reopening 

serves the best interests of justice, and holding that reopening was not 

appropriate in a case where it “greatly prejudiced” the opposing party by 

giving the movant a “proverbial second bite at the apple to prove an essential 

element of its case”).
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for additional evidence, reasoning that “[t]he cases cited by Wells Fargo in 

support of remand are distinguishable where, unlike here, the party seeking

attorney’s fees presented some evidence to support the fees awarded and 

had filed attorney’s fees affidavits prior to trial that substantiated the fees.”).

Therefore, remand for another evidentiary hearing would be improper here.

Accordingly, we reverse the award of attorney’s fees and remand with 

instructions to the trial court to enter an order finding that Rossdale is not 

entitled to attorney’s fees.

3

AFFIRMED, in part; REVERSED, in part; and REMANDED with 

instructions.

LAMBERT, C.J. and EVANDER, J., concur.

3 We also deny Rossdale’s motion for appellate attorney’s fees. The 

record does not support an award of appellate fees based on a contractual 

obligation. Moreover, because Appellant is the prevailing party on a 

significant appellate issue, there is no basis for awarding appellate fees 

under section 57.105(1). See Treat v. State ex rel. Mitton, 163 So. 883, 883 

(Fla. 1935) (“A frivolous appeal is not merely one that is likely to be 

unsuccessful. It is one that is so readily recognizable as devoid of merit on 

the face of the record that there is little, if any, prospect whatsoever that it 

can ever succeed. It must be one so clearly untenable, or the insufficiency 

of which is so manifest on a bare inspection of the record and assignments 

of error, that its character may be determined without argument or research.” 

(footnote and internal citation omitted)).