16 Fla. L. Weekly Supp. 409a
Online Reference: FLWSUPP 165SMITH
Insurance — Personal injury protection — Attorney’s fees — Evidence — Where insurer objected to attorney’s affidavit and attached time log on basis that documents were hearsay, and insurer was unable to present evidence to establish that documents met business records exception to hearsay rule or present other admissible evidence of hours attorney spent on case, trial court did not err in excluding affidavit and time records and denying award of fees for attorney’s time — Expert witness fee — Error to deny award of fees for expert who testified at fee hearing
FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCIATES, M.D., P.A., a/a/o Daryl Smith, Appellant, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Appellee. Circuit Court, 18th Judicial Circuit (Appellate) in and for Seminole County. Case No. 07-74AP. L.C. Case No. 04-SC-4262. February 24, 2009. Appeal from County Court for Seminole County, Honorable Donald L. Marblestone, County Court Judge. Counsel: Kevin B. Weiss, Maitland, and Michael A. Mills, Orlando, for Appellant. Michael C. Clarke, Tampa, and George Milev, Orlando, for Appellee.
[Editor’s note: Lower court order at 14 Fla. L. Weekly Supp. 1164c]
Subsequent county court order awarding attorney’s fees, 16 Fla. L. Weekly Supp. 895c]
(Alley, J.,) Appellant appeals the trial court’s award of attorney’s fees and costs. Appellant asserts that: (1) the trial court erred by refusing to consider the attorney time of Florida Emergency Physicians’ (FEP) attorney, Christopher Reed; and (2) the trial court misinterpreted or misapplied Florida law by denying FEP’s request to tax expert witness fees as a prevailing party against Progressive.
At the hearing to determine the amount of reasonable attorney’s fees, Appellant sought to introduce the affidavit of attorney Christopher Reed. Progressive objected on the basis that the affidavit constituted hearsay. The trial court inquired as to whether Appellant had anyone who could testify as to Mr. Reed’s time based upon personal knowledge or if there was anyone who could testify to establish that the time log qualified as a business record. When Appellant was unable to do so, the trial court ruled that he could not consider Mr. Reed’s hours. At that point, Progressive stipulated to the number of hours Mr. Mills worked on the case. At that point, the trial court took testimony from Appellant’s expert and Progressive’s expert regarding what would constitute a reasonable fee in this case. Appellant called Kevin Weiss as an expert.
After the testimony of the experts, Progressive argued that Appellant was not entitled to Mr. Weiss’ expert witness fee as part of its costs. The trial court reserved ruling to give Appellant time to submit case law on this issue. In the final judgment awarding attorney’s fees and costs, the trial court found that Appellant was not entitled to its expert witness fees pursuant to Seminole Co. v. Chandrinos, 816 So. 2d 1241 (Fla. 5th DCA 2002) and Seminole Co. v. Boyle, 719 So. 2d 1004 (Fla. 5th DCA 1998).
Regarding Appellant’s first claim of error, Appellant fundamentally misunderstands the basis of the trial court’s ruling on this issue. Appellant argues that they are not required to have all of the attorneys who are seeking fees testify at the hearing to determine the amount. While this is correct, the party seeking attorney fees is still required to present admissible evidence to establish the number of hours. Progressive objected to the use of Mr. Reed’s affidavit and the attached time log on the basis that the documents constituted hearsay. Appellant was unable to either present evidence to establish that the time logs met a hearsay exception, i.e. business records, or present other admissible evidence of the number of hours Mr. Reed spent on the case.
Appellant relied upon Nants v. Griffin, 783 So. 2d 363 (Fla. 5th DCA 2001), which held, “the attorney performing 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.” (emphasis added). However, Appellant appears to overlook the “competent evidence” requirement. In Nants, the non-testifying attorney’s supervisor testified, authenticating the time slips and billing records so that they were admissible as business records. The supervisor also testified that he reviewed the attorney’s time slips and reduced the total number of hours because he thought the amount of time was excessive. Similarly, in Saussy v. Saussy, 560 So. 2d 1385 (Fla. 2d DCA 1990), an attorney from the firm testified as records’ custodian so that the time slips of the non-testifying attorneys could be admitted into evidence under the business records exception.
In the case at bar, Appellant failed to present any competent evidence to establish the hours worked by Mr. Reed. Therefore, the trial court did not err in excluding the affidavit and time records as hearsay.
With regard to Appellant’s second claim of error, based upon the arguments presented at the hearing and the written order awarding fees, it appears that the trial court concluded that it could not award expert witness fees as a matter of law pursuant to Seminole Co. v. Chandrinos, 816 So. 2d 1241 (Fla. 5th DCA 2002) and Seminole Co. v. Boyle, 719 So. 2d 1004 (Fla. 5th DCA 1998). (R. 545-48, 588-592). This is a misapplication of the law.
Chandrinos addressed the entitlement to an expert witness fee incurred in the defense of an eminent domain proceeding. Appellee asserts that Chandrinos should be read to establish that a party cannot recover expert witness fees for litigating the amount of fees. In Chandrinos, the Court concluded, “We see no cogent reason why a consistent rule [to that applied to attorney’s fees] should not be followed in considering expert witness fees, and conclude that fees cannot be awarded for time spent litigating the amount of expert fees.” Chandrinos, 816 So. 2d 1246. However, contrary to Appellee’s assertion, the expert witness in Chandrinos was more akin to Appellant’s trial counsel in the suit below than Appellant’s expert witness attorney. Therefore, it makes sense to apply the same principle applied to attorney’s fees to the eminent domain expert witness fee. The case does not address what expert witness fees are recoverable when the witness is testifying as part of a fee hearing instead of as part of the underlying suit. The same is true of Seminole County v. Boyle, 719 So. 2d 1001 (Fla. 5th DCA 1998). Furthermore, this reading of Chandrinos and Boyle is consistent with the Florida Supreme Court holding in Travieso v. Travieso, 474 So. 2d 1184 (Fla. 1985).
In Travieso, the Florida Supreme Court address the exact issue in this case. The Florida Supreme Court held:
[P]ursuant to section 92.231, expert witness fees, at the discretion of the trial court, may be taxed as costs for a lawyer who testifies as an expert as to reasonable attorney’s fees. We do not hold that such expert witness fees must be awarded in all cases. Generally, lawyers are willing to testify gratuitously for other lawyers on the issue of reasonable attorney’s fees. This traditionally has been a matter of professional courtesy. An attorney is an officer of the court and should be willing to give the expert testimony necessary to ensure that the trial court has the requisite competent evidence to determine reasonable fees. Only in the exceptional case where the time required for preparation and testifying is burdensome, should the attorney expect compensation.
Id. at 1186.
The Second District Court of Appeal has construed Travieso as requiring an award of such fees “if the testifying attorney expects to be compensated for his testimony.” Stokus v. Phillips, 651 So. 2d 1244, 1246 (Fla. 2d DCA 1995) (citing Straus v. Morton F. Plant Hosp. Foundation, Inc., 478 So. 2d 472 (Fla. 2d DCA 1985)). However, the Second District appears to be the only court to adopt such a broad reading of Travieso. B & H Const. & Supply Co., Inc. v. District Bd. of Trustees of Tallahassee Community College, Florida, 542 So.2d 382, 392 (Fla. 1st DCA 1989) (the trial court has discretion in awarding expert fees and should consider Travieso when exercising said discretion); Tuerk v. Allstate Ins., 498 So.2d 504 (Fla. 3d DCA 1986), rev. den., 506 So.2d 1040 (Fla.1987) (disapproved on other grounds, Miami Children’s Hosp. v. Tamayo, 529 So.2d 667 (Fla.1988)); Rivers v. Integon General Ins. Corp., 719 So.2d 384 (Fla. 4th DCA 1998). Finally, the Fifth District Court of Appeal has both upheld and reversed rulings of the trial court that denied awards of attorney expert witness fees. Orlando Regional Medical Center v. Chmielewski, 573 So.2d 876, 883 (Fla. 5th DCA 1990), abrogated on other grounds, Boulis v. Florida Department of Transportation, 733 So.2d 959 (Fla.1999) (“Expert witness fees may be awarded in the trial court’s discretion, in complex cases when the preparation for testifying is lengthy and burdensome”); Mangel v. Bob Dance Dodge, Inc., 739 So.2d 720 (Fla. 5th DCA 1999) (finding an award of fees appropriate under Travieso based upon the facts of the case).
Thus, although Travieso allows the court discretion to deny fees, the order in the case at bar was submitted without that option. The order based the denial on a lack of entitlement. The only other choice was to grant the fees. The practice to submit such an order left the court without the discretionary choice. Thus this matter should be remanded for further proceedings.
Accordingly, the order awarding attorney’s fees and costs is AFFIRMED with regard to the denial of attorney’s fees for the time of attorney Christopher Reed. To the extent the order denied Appellant an award of its expert witness fees, the order is REVERSED and the case REMANDED for further proceedings consistent with Travieso.
