17 Fla. L. Weekly Supp. 917a
Online Reference: FLWSUPP 1710OCCIInsurance — Personal injury protection — Attorney’s fees — No abuse of discretion in awarding fees to plaintiff’s attorney’s fee expert or in hourly rate used to calculate fees for plaintiff’s attorneys and fee expert — Issue of expert witness’s hourly rate was not waived by absence of formal objection in trial court where action was decided by court without jury
PROGRESSIVE AUTO PRO D/B/A PROGRESSIVE SELECT INSURANCE COMPANY, Appellant/Defendant, vs. DENNIS J. D’ERAMO, D.C., P.A., as assignee of Kimberly Occhionero, Appellee. Circuit Court, 18th Judicial Circuit (Appellate) in and for Seminole County. Case No. 09-06-AP. L.T. Case No. 05-SC-742-19-S. May 7, 2010. Donald L. Marblestone, Judge. Counsel: Betsy E. Gallagher and Amy L. Miles, for Appellant. Kevin B. Weiss, Weiss Legal Group, P.A., Maitland, for Appellee.
(RUDISILL, J.) In accordance with the Motion for Rehearing granted on April 6, 2010, the following opinion is issued and substituted for the opinion issued on March 16, 2010.
The Appellant brings this appeal from a final judgment for the Appellee, on attorney’s fees and costs in an action for Personal Injury Protection benefits. At the fee hearing, the trial court awarded attorney Tom Player 3.3 hours at $350 per hour; for a total of $1,155, attorney Roy Smith 200 hours at $325 per hour; for a total of $65,000, and attorney Glenn Klausman, an expert witness for the Appellee, 10.1 hours at a rate of $450 per hour, for a total of $4,545.
The Appellant raises two issues in its appeal: (1) the trial court abused its discretion in awarding fees to Plaintiff’s expert witness, and (2) the trial court abused its discretion in awarding excessive hourly rates to Plaintiff’s attorneys and fees expert. Neither the total number of hours expended nor the total fee awarded are at issue in this appeal. The Appellee asserts that Progressive waived any argument about Plaintiff’s expert witness’ hourly rate by not raising the issue in trial court.
The preservation issue should be addressed first, as a finding that the issues are not preserved would render further labor unnecessary. When an action has been tried by the court without a jury, the sufficiency of the evidence to support the judgment may be raised on appeal whether or not the party raising the question has made any objection thereto in the trial court or made a motion for rehearing, for new trial, or to amend the judgment. Fla. R. Civ. P. 1.530(e). Here, Progressive’s appeal arises out of the hearing on the Plaintiff’s motion for fees. This action was decided by the court without a jury, so a formal objection was not required to preserve the issue for appeal. As such, the Court may address the merits of the appeal.
Fla. Stat. §92.231(2) permits courts to award experts’ fees and costs to those who have testified in any cause. The use of the phrase “shall be allowed a witness fee” leaves little room for ambiguity on the plain language of the law. When a person is tendered and accepted by the court as an expert witness, the party calling the witness may have an expert witness fee taxed if costs are awarded to that party. Travieso v. Travieso, 474 So. 2d 1184 (Fla. 1985). However, expert witness fees do not have to be awarded in all cases. Id. Only in the exceptional case where the time required for preparation and testifying is burdensome, should the attorney expect compensation. Id.
The Second District Court of Appeal clarified Travieso by noting that expert witness fees paid to the testifying expert are not discretionary if the attorney expects to be compensated for his testimony. Stokus v. Phillips, 651 So. 2d 1244 (Fla. 2d DCA 1995). In Stokus, the court reasoned that the testifying attorney should be compensated because he did not agree to expend six hours as a matter of professional courtesy. Id. Here, attorney Klausman expected to be paid, as he would not have agreed to review the file in this case if he weren’t to be compensated for his time. He further testified that the 10.1 hours expended was burdensome. Accordingly, pursuant to Stokus, the trial court did not abuse its discretion by awarding expert witness fees.
When setting an appropriate hourly rate, the court should consider rates customarily charged in the community, and it is the party seeking an award of attorney’s fees that has the burden of establishing the prevailing market rate. Fla. Patient’s Comp. Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). In determining reasonable fees, the Court should consider (1) the time and labor required, the novelty and difficulty of the question involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. Id.
Next, in computing an attorney fee, the trial judge should (1) determine the number of hours reasonably expended on the litigation; (2) determine the reasonable hourly rate for this type of litigation; (3) multiply the result of (1) and (2); and, when appropriate; (4) adjust the fee on the basis of the contingent nature of the litigation or the failure to prevail on a claim or claims. Rowe, 472 So. 2d at 1151.
Hourly rates were awarded by the trial court to attorneys Player, Smith and Klausman. Player was awarded $350 per hour. Testimony and evidence was presented at the fee hearing outlining prior hourly rates awarded to attorney Player. Based upon this evidence, an hourly rate of $350 was reasonable, so the trial court did not abuse its discretion in awarding that hourly rate.
Attorney Smith was awarded $325 per hour. Attorney Smith provided evidence that he bills at $300-350 per hour. Attorney Smith provided the Court with his resume and testified as to his qualifications and experience. He stated that his hourly rate was consistent with the rate the community calls for and that this case was not a run of the mill case. Attorney Smith testified that his fee agreement with the Plaintiff was a contingency fee agreement and that the Plaintiff obtained a full recovery. The trial court did not abuse its discretion in awarding an hourly rate of $325 to Attorney Smith.
Attorney Klausman was compensated for 10.1 hours at a rate of $450 per hour. He testified that his standard hourly rate was $450, but he has been awarded as much as $500 per hour. Having examined the factors set forth in Rowe and Fla. R. Civ. P. 1.442(h)(2), the trial court did not abuse its discretion in awarding the Plaintiff’s expert witness an hourly rate of $450.
In sum, the trial court did not abuse its discretion by awarding Plaintiff’s expert witness fees and costs, nor did the trial court abuse its discretion by awarding hourly rates of $350, $325 and $450 to attorneys Player, Smith and Klausman, respectively. Accordingly, the judgments below should be
AFFIRMED.
