16 Fla. L. Weekly Supp. 149a
Online Reference: FLWSUPP 162 ORTIZ
Insurance — Personal injury protection — Attorney’s fees — Evidence — Timesheets — No error in refusing to consider summary compilation of attorney’s timesheets from other cases offered by insurer to show mistakes in attorney’s billing in current case where insurer elicited substance of summary compilation from fee expert — Trial court did not err in deciding not to reduce amount of attorney’s fees on basis of testimony of insurer’s fee expert where decision is supported by competent substantial evidence in timesheets and testimony of insured’s attorney and his fee expert
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. GLORIA ORTIZ, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 07-23795 (02). L.T. Case No. 06-11579. December 17, 2008. Counsel: Dean A. Mitchell, Ocala; and Cris Boyar, trial counsel, for Plaintiff. Ivy R. Ginsberg, Coral Gables.
OPINION
(JOHN B. BOWMAN, J.) THIS CAUSE is before the Court upon appeal from a final judgment awarding attorney’s fees to Appellee, Gloria Ortiz (“Ortiz”). The Court having considered the briefs filed by the parties, the record on appeal, applicable law, and otherwise being fully advised in the premises finds:
Appellee, Ortiz, sued United Automobile Insurance Company (“United”) for breach of contract for PIP benefits. After Appellee prevailed on the merits, her attorney Chris Boyar, moved for attorney’s fees and costs pursuant to Fla. Stat. 627.428. On August 23, 2007, the trial court had a hearing on the matters. During the hearing, United’s fee expert, Jeffrey Kaplan, testified that there were mistakes in the billing based on a compilation of Mr. Boyar’s time records from other cases. United attempted to offer these time sheets into evidence, however, Mr. Boyar objected to their admissibility based on lack of authentication and foundation. The trial court sustained Mr. Boyar’s objection and the summary compilations were not admitted into evidence. The trial court awarded attorney’s fees to Mr. Boyar for 55.7 hours at an hourly rate of $375.
While there is not any dispute as to Mr. Boyar’s entitlement to fees and costs, United argues that the trial court abused its discretion by (a) excluding exhibits (summary compilations) offered at the hearing; and (b) awarding an unreasonable fee to Mr. Boyar where the amount is not supported by competent substantial evidence.
The first issue on appeal is whether the trial court erred by excluding the summary compilation of Mr. Boyar’s time sheets from other cases. The law is well settled that a trial court’s ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion. Golden Yachts, Inc. v. Hall, 920 So.2d 777, 780 (Fla. 4th DCA 2006). In absence of clear showing of error, trial judge’s determination of admissibility of evidence should not be disturbed on review. Buchman v. Seaboard Coast Line, R. Co., 381 So.2d 229 (Fla. 1980).
In the present case, this Court finds that United elicited the substance of the summary compilation from their fee expert, Jeffrey Kaplan. As such, the trial court did not commit any reversible error by refusing to consider the summary compilation.
The next issue on appeal is whether the trial court abused its discretion by not reducing the amount of attorney fees, based upon the testimony of United’s fee expert. 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). Judicial discretion is abused when the trial court’s action is arbitrary or unreasonable. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980).
A review of the record reveals nothing that would indicate that the trial court’s ruling was arbitrary. The trial court’s decision is supported by competent, substantial evidence presented at the hearing. In the present case, the trial court heard testimony from Mr. Boyar, Mr. Boyar’s fee expert, Emilio Stillo, United’s fee expert, Jeffrey Kaplan, and reviewed Mr. Boyar’s time sheets for this case. It is not the prerogative of this Court to re-evaluate the weight or credibility of testimony or other evidence accorded by the trial court as the trial court has the superior vantage point from which to make these determinations. See Canakaris at 1203.
ORDERED AND ADJUDGED that the trial court is AFFIRMED.
