DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

GREGORY M. OCHALEK,

Appellant,

v.

ANTONIO RIVERA and JOCELYNE GOMEZ,

Appellees.

No. 4D17-165

[December 20, 2017]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Dale C. Cohen, Judge; L.T. Case No. FMCE07-004184 

(37/91).

Gregory M. Ochalek of Gregory M. Ochalek, P.L.L.C, Miami, for 

appellant.

No brief filed on behalf of appellees.

MAY, J.

An attorney appeals a sanctions order entered against him. He argues 

the trial court erred in entering the order because he was not given notice 

and an opportunity to be heard, and the court failed to make a bad faith 

finding and articulate the grounds for the sanctions. We agree and 

reverse.

The attorney previously represented the mother in a family law dispute. 

He filed three motions to withdraw. Following his first motion, he filed a 

limited notice of appearance regarding a discovery matter. He 

subsequently filed two agreed motions to withdraw, with the final motion 

reflecting the mother had obtained new counsel and the father was 

representing himself pro se.

The mother’s new counsel filed a pleading, and the trial court granted 

the attorney’s motion to withdraw. When the father failed to respond to 

the pleading, the mother’s new counsel moved for a default.

The attorney suggests that although he had withdrawn from 
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representation of the mother, he was still her “non-advocate” counsel. He 

claims the mother retained him to review her new counsel’s billing 

methods, case progress, and provide “strategic advice.” Due to this 

relationship, the mother asked him to attend the hearing on the motion 

for default.

He claims he pulled the docket to prepare for the hearing, and 

discovered that the mother’s new counsel filed a pleading before he 

withdrew as counsel. He appeared at the hearing on the motion for default 

and argued that the new counsel had inappropriately filed a pleading 

before he withdrew and had not filed a notice of appearance or substitution 

of counsel. He claims to have told the trial court that the Florida Bar had 

disciplined the new counsel in the past, and the father was unaware of 

any record activity since the new counsel became the mother’s attorney.

The father filed a motion to strike the mother’s pleading six days before 

the attorney claims to have attended the hearing. In the motion, the father

alleged the attorney informed him about the pending motion for default, 

and he moved for sanctions against the mother’s new counsel. He claimed 

that the new counsel was aware the father was pro se, but served her 

pleading and default motion on the father’s previous lawyer, who had 

withdrawn.

The trial court denied the motion for default in light of the father’s 

motion to strike. It also denied the father’s motion to strike and for 

sanctions against the mother’s new counsel.

The mother’s new counsel then set the father’s deposition. The same 

day, the attorney filed a notice of appearance so he could attend the 

deposition. The father failed to appear for the deposition.

The mother’s new counsel then filed a petition for a rule to show cause

why the father should not be held in contempt for missing the deposition. 

She also moved to strike the attorney’s new notice of appearance and for 

sanctions against him. The motion alleged that the attorney was 

interfering in the case despite no longer representing the mother.

The mother requested the court to hold the attorney responsible for the 

fees and costs stemming from the missed deposition, and time spent 

preparing the motion for sanctions. The attorney responded in opposition

detailing his “non-advocate” relationship with the mother. He argued there 

was no record evidence to support the mother’s allegations in the motion 

for sanctions. And, he requested an evidentiary hearing.
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The trial court granted the motion for sanctions and entered the 

following order.

Granted. Mr. Ochalek’s is barred from interfering and 

involving himself any further in the above captioned matter. 

Unless [the mother] comes into court and tells the court she 

no longer wishes Ms. Bassichis to represent her and wants 

Mr. Gregory M. Ochalek to represent her instead. Mr. Ochalek 

shall not file pleadings in this matter. The court award two 

(2) hour of attorney fees to respondent’s councel, reasonable 

and necessary at $300 per hour, totaling $600 to be paid to 

Jodie Bassichis PA within thirty days (30). In regards to the 

order to show cause, the court request same to be a special 

set hearing.

(Errors in the original). From the order, the attorney now appeals.

The attorney argues the order is deficient because the trial court did 

not: 1) list the authority it relied upon to impose sanctions; 2) make an 

express finding of bad faith conduct; and 3) provide an opportunity to be 

heard.

We review a trial court’s sanctions order for an abuse of discretion. 

Rivero v. Meister, 46 So. 3d 1161, 1163 (Fla. 4th DCA 2008).

Generally, a court may only award attorney’s fees if authorized by a 

statute, rule, or contract. Bane v. Bane, 775 So. 2d 938, 940 (Fla. 2000). 

But, trial courts have the inherent authority to assess attorney’s fees for 

attorney misconduct. Moakley v. Smallwood, 826 So. 2d 221, 224 (Fla. 

2002).

This inherent authority is known as the “inequitable conduct doctrine,” 

and is reserved for those extreme cases where a party acts in bad faith, 

vexatiously, wantonly, or for oppressive reasons. Id.; see also Bitterman v. 

Bitterman, 714 So. 2d 356, 365 (Fla. 1998) (recognizing that such orders 

are rare).

The inherent authority of the court carries with it the obligation of 

restrained use and due process. Moakley, 826 So. 2d at 227. If the court 

exercises its inherent authority to assess attorneys’ fees against an 

attorney, it “must be based upon an express finding of bad faith conduct 

and must be supported by detailed factual findings describing the specific 

acts of bad faith conduct that resulted in the unnecessary incurrence of 

attorneys’ fees.” Id.
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“Thus, a finding of bad faith conduct must be predicated on a high 

degree of specificity in the factual finding.” Id. And, the amount of the 

award must be directly related to the attorneys’ fees and costs incurred as 

a result of the specific bad faith conduct of the attorney. Id. “Moreover, 

such a sanction is appropriate only after notice and an opportunity to be 

heard-including the opportunity to present witnesses and other evidence.” 

Id.

We have reversed orders when they failed to contain factual findings or 

state the basis for awarding personal sanctions. Rickard v. Bornscheuer, 

937 So. 2d 311, 311 (Fla. 4th DCA 2006). Similarly, we have reversed 

orders where notice and an opportunity to be heard are lacking. Id.

Here, the trial court failed to make an express finding of bad faith 

conduct. It failed to make any detailed factual findings describing the 

specific conduct that resulted in the mother’s unnecessary incurrence of 

attorneys’ fees. The order merely recites that the attorney must pay $600 

to the mother’s new counsel because the attorneys’ fees were “reasonable 

and necessary.” This conclusory statement is insufficient under Moakley.

We therefore reverse and remand the case to the trial court for 

proceedings consistent with this opinion.

Reversed and remanded.

GROSS and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.