15 Fla. L. Weekly Supp. 984a
Attorney’s fees — Insurance — Personal injury protection — Amount — No abuse of discretion in setting amount of attorney fee award where trial court was provided with competent substantial evidence of hours expended, details of services performed and reasonable hourly rate — Costs — Where expert witness had to review records spanning two years and testified that he had expectation of being paid and that it was burdensome for him to work as expert witness, there is competent substantial evidence supporting decision to award expert witness fee — No abuse of discretion in denying continuance requested by insurer where trial court, dissatisfied with insurer’s attempt to lay predicate and foundation for admission of attorney’s affidavits and timesheets, asked attorney if he wanted to continue hearing and denied continuance when attorney stated that he did not want case to be continued
Cert. denied January 14, 2009 (Fla. 4DCA)
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. MANUEL E. BROOKNER, DC, PA, a/a/o NANCY VIVERA, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 07-20874 (CACE 04). July 31, 2008. Robert B. Carney, Judge. Counsel: Lara Edelstein, for Appellant. Dean A. Mitchell, for Appellee.
OPINION
THIS CAUSE having come before the Court on Appellant, United Automobile Insurance Company’s, appeal of the Final Judgment and Order on Plaintiff’s Motion to Set Reasonable Attorney’s Fees and Costs, and the Court having considered same, reviewed the transcript and the briefs of the parties, and being otherwise duly advised in premises, finds and decides as follows:
The insured, Nancy Vivera, received medical care from Appellee, Manuel E. Brookner, D.C., following a car accident. On November 14, 2006, Appellee sued Appellant for breach of contract providing personal injury insurance benefits. The Appellee filed a Motion for Summary Judgment against the Appellant, which was granted. The present action resulted from Appellee’s attorney, Cris Boyar’s, Motion for Attorney’s Fees and Costs pursuant to Florida Statute § 627.428, Florida’s insurance attorney’s fees statute. A fee hearing was held on August 7, 2007.
At the fee hearing, Mr. Boyar sought 48.6 hours at an hourly rate of $375.00 per hour. Mr. Boyar’s expert witness, Emilio Stillo, testified that Mr. Boyar’s time and hourly rate was reasonable. Appellant attempted to introduce Mr. Boyar’s fee records from prior cases, but was unsuccessful. Appellant also attempted to request a continuance so that the fee records could be authenticated. The request for a continuance was denied. Appellant appeals the Final Judgment entitling Mr. Boyar to 47.4 hours of reasonable hours spent in this case, at a rate of $350.00 per hour, plus entitling Mr. Stillo to $325.00 for 4 hours of reasonable hours spent in this case, and the denial of its motion for a continuance.
While there is no dispute as to Mr. Boyar’s entitlement to fees and costs, Appellant by this appeal argues that the trial court abused its discretion by a) awarding an unreasonable fee to Mr. Boyar where the amount of hours awarded is not supported by competent substantial evidence; b) not allowing the Appellant to continue the hearing; and c) in awarding a fee to the expert witness.
An award of attorney’s fees is a matter committed to sound judicial discretion which will not be disturbed on appeal, absent a showing of a clear abuse of discretion. DiStefano Construction, Inc. v. Fidelity and Deposit Co. of Maryland, 597 So.2d 248, 250 (Fla. 1992). To determine whether an abuse of discretion has occurred, the appellate court must look to the record for competent substantial evidence to support the trial court’s decision. Jannotta v. Hess, 959 So.2d 373, 374 (Fla. 1st DCA 2007).
The trial court awarded Mr. Boyar $350.00 per hour for a total of 47.4 hours. In doing so, the trial court considered Mr. Boyar’s experience, especially in the field of PIP cases. The record reveals Mr. Boyar has concentrated in PIP litigation for approximately fourteen years. Additionally, Mr. Boyar testified he has tried over 63 cases, and is asked by other South Florida attorneys to try cases on their behalf. The trial court also considered Mr. Boyar’s education, as the record shows that Mr. Boyar graduated in the top ten percent of his class. Appellant counsel’s expert witness testified that in his opinion, all of the time Mr. Boyar billed for was reasonable. Mr. Stillo also testified that the billing for the pre-suit work was reasonable considering that the case was a year old, the insurer did not respond to the bills, did not provide an itemized calculation of benefits, and did not respond to the demand letter. Mr. Stillo is a local attorney who testified that Mr. Boyar’s hourly rate should be $375.00. Appellant’s expert witness testified that Mr. Boyar’s hourly rate should be $350.00 an hour. Additionally, Mr. Boyar provided the court with a sworn time sheet that detailed the amount of work performed and the time he spent performing each task. See Faircloth v. Bliss, 917 So.2d 1005, 1006 (Fla. 4th DCA 2006) (fee award that is supported by competent substantial evidence “must include evidence detailing the services performed and the reasonableness of the fees”). Because the trial court was provided with competent, substantial evidence of the hours Mr. Boyar expended, the details of the services he performed, and the reasonable hourly rate, this Court is unable to say the trial court abused its discretion.
Pursuant to Florida Statute § 92.231, trial courts have the discretion to tax expert witness fees as costs for an attorney who testifies as an expert as to reasonable attorney’s fees. Travieso v. Travieso, 474 So.2d 1184, 1186 (Fla. 1985). The Travieso Court cautions that a court should only award expert witness attorney’s fees where the time applied for preparation and testifying is burdensome. Id. at 1186. However, if the testifying attorney states that he expects to be compensated for his testimony, the court must award him expert witness fees. Stokus v. Phillips, 651 So.2d 1244, 1246 (Fla. 2nd DCA 1995).
The Appellant attempts to rely upon the holding of United States Fidelity and Guaranty Co. v. Rosado, 606 So.2d 628 (Fla. 3rd DCA 1992), which repeats the Travieso statement that a court should limit itself to only awarding expert attorney’s fees where the attorney was burdened by his work in the capacity of expert witness. However, it is significant the particular PIP case in Rosado was settled six (6) days after the case was filed. In contrast, in the instant case, Mr. Stillo had to review records that spanned the two years that Mr. Boyar worked on it the present case. Therefore, Mr. Stillo had to spend more time reviewing Mr. Boyar’s time records than the expert in Rosado did. Mr. Stillo also testified he had an expectation of being paid and that it was burdensome for him to work as Mr. Boyar’s expert witness. There is competent substantial evidence that supports the trial court’s decision to award Mr. Stillo the amount of $325.00 for four (4) hours for his work as Mr. Boyar’s expert witness.
The question for this Court is not whether a continuance should have been granted, but whether the trial judge abused his discretion in failing to grant the continuance. Glades Gen. Hosp. v. Louis, 411 So.2d 1318, 1319 (Fla. 4th DCA 1981). “The grant or denial of a continuance is a matter within the sound discretion of the trial judge.” Id. at 1319 citing State v. Florida Turnpike Authority, 134 So.2d 12 (1961). The trial court has a “far superior vantage point as to prior discovery which has gone on, the necessity for further discovery, and the many considerations which too into managing a trial docket and granting continuances.” Id. at 1319. If a trial court does not grant a continuance, its decision should not be disturbed “unless there is clearly shown to have been a palpable abuse of judicial discretion has been clearly shown.” Id. citing Edwards v. Pratt, 335 So.2d 597 (Fla. 3rd DCA 1976); Williams v. Gunn, 279 So.2d 69 (Fla. 1st DCA 1973). The party who contends that the trial court abused its discretion in failing to grant a continuance has the burden of proving it to the appellate court. Id.
In the instant case, the trial court was dissatisfied with Appellant’s attempt to lay a predicate and a foundation for the admission of Mr. Boyar’s affidavits and time sheets, and asked Mr. Boyar if he wanted to continue the case. When Mr. Boyar stated he did not want to continue the case, the trial court exercised its broad discretion and denied the continuance.
Accordingly, it is hereby,
ORDERED AND ADJUDGED that the trial court’s “Final Judgment and Order on Plaintiff’s Motion to Set Reasonable Attorney’s Fees and Costs” is AFFIRMED. Appellant’s Motion for Appellate Attorney’s Fees pursuant to § 627.428, Florida Statutes, is GRANTED. The trial court shall determine the reasonable amount of attorney’s fees to be awarded. Appellant’s Motion for Appellate Attorney’s Fees pursuant to Florida Statute 57.105 is DENIED.
