Opinion
No. 91-02354.
October 28, 1992. Rehearing Denied January 5, 1993.
Appeal from the Circuit Court, Sarasota County, Peter A. Dubensky and Becky A. Titus, JJ.
David G. Bowman, Jr., Robert L. Moore, and Robert E. Turffs of Kanetsky, Moore DeBoer, P.A., Longboat Key, for appellants.
Nancy K. Donnellan of deManio Young, P.A. Sarasota, for appellees.
The appellants contend that the trial court erred in awarding attorney's fees and costs incurred by the appellees in the underlying action to review the association's corporate books.
We do not agree with this contention as to the association; however, the appellants are correct as far as their contention applies to the individual appellants and any liability is restricted solely to the association. From our examination of the record, particularly the motion for indemnification filed on November 13, 1989, it is evident that the trial court did not abuse its discretion in awarding fees and costs under section 607.014(9)(c), Florida Statutes (1987).
The appellants further point out that the first order does not comply with Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985). We agree. It was error for the trial court to enter a final order on attorney's fees without consideration of the factors set forth in Rowe and a specific finding as to each of the Rowe criteria. Riesgo v. Weinstein, 523 So.2d 752 (Fla. 2d DCA 1988).
We affirm the order determining entitlement to attorney's fees and costs. We reverse the order determining the reasonable fee to be awarded and remand for findings and judgment consistent herewith.
CAMPBELL, A.C.J., concurs.
ALTENBERND, J., concurs specially.
With some hesitation, I agree that the trial court was entitled to decide that the appellees, as former directors of a nonprofit corporation and as plaintiffs in the trial court, were "fairly and reasonably entitled to indemnification" for their expenses reasonably and necessarily related to this lawsuit "in view of all the relevant circumstances." § 607.014(9)(c), Fla. Stat. (1987); see § 617.028, Fla. Stat. (1987). Because this indemnification is primarily a reimbursement for legal fees, I agree that the findings required by Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), must be satisfied in the trial court's order.
I write separately to emphasize that the former directors are only entitled to indemnity for those fees that were reasonably and necessarily incurred to obtain access to the records of this nonprofit corporation. Given that no one disputes that the plaintiffs were members and had been directors of this nonprofit corporation, their right of access to corporate records and the conditions for that access would seem to be reasonably simple issues that could have been resolved in the circuit court in a short amount of time. See §§ 617.041, 607.157, Fla. Stat. (1987).
I do not believe that the former directors are entitled to fees in a broader dispute which has never resulted in a lawsuit — much less a claim on which the plaintiffs have prevailed. Even though the broader dispute has involved discovery in this action, I can see little or no necessity to perform that discovery in the simple dispute over access to records. At least on initial examination, most of the $21,900 awarded in the judgment on appeal appears related to the other dispute. On remand, I hope that the trial court will be able to use the Rowe findings to separate the expenses incurred in the litigation for which the plaintiffs are entitled to indemnity from those arising out of the remaining dispute.