18 Fla. L. Weekly Supp. 379a
Online Reference: FLWSUPP 1804HERM
Insurance — Attorney’s fees — No merit to claim that trial court erred in ruling that insurer waived objections to time records and in limiting insurer’s argument and cross-examination of medical provider’s counsel where court later reversed that ruling and allowed insurer to continue — Where there is some competent substantial evidence to support fee award, but record is lacking essential testimony from attorney performing services or additional expert witnesses, court reverses and remands for further hearing
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. SCOTT J. HERMAN. D.C., P.A., a/a/o Jesus Garcia, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) and for Broward County. Case No. CACE09-63957. Honorable Peter Skolnik, Judge.
OPINION
(RODRIGUEZ-POWELL, Judge.) THIS CAUSE comes before the Court, sitting in its appellate capacity, upon the appeal by Appellant, United Automobile Insurance Company (herein “United Auto”), of the trial court’s Final Judgment and Order on Plaintiff’s Motion to Set Reasonable Attorney’s Fee (sic) and Costs (herein “Final Judgment”) in favor of Appellee, Scott J. Herman, D.C., P.A. a/a/o Jesus Garcia (herein “Appellee”). The Court, having considered the briefs filed by the parties and being duly advised in premises and law, dispenses with oral argument and finds and decides as follows:
United Auto appeals the trial court’s order awarding prevailing party attorney’s fees and costs to Appellee, Scott J. Herman, D.C., P.A., after they prevailed at trial.
Standard of Review:
This Court begins its analysis by recognizing that “the award of attorney’s fees is a matter committed to sound judicial discretion which will not be disturbed on appeal, absent a showing of clear abuse of discretion.” Turovets v. Khromov, 943 So. 2d 246, 248 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D2783a] (citing DiStefano Constr., Inc. v. Fid. & Deposit Co. of Md., 597 So. 2d 248, 250 (Fla. 1992)).
On the facts here, after Appellee prevailed at trial in the underlying matter, a timely motion for attorney’s fees and costs was filed. Thereafter, the trial court entered its “Order Preliminary to Hearing on Motion to Tax Costs and Award Attorney’s Fees.” (herein “Order Preliminary”) which set forth the procedures prior to the hearing on the matter. Also in the record is the parties’ “Agreed Order on Defendant’s Emergency Motion to Comply with the Order Preliminary to Hearing for Attorney’s Fees and Costs,” issued by the trial court on September 6, 2009. Therein, the trial court granted United Auto’s emergency motion and ordered them to comply with its Order Preliminary within 5 days of September 25, 2009.
On September 30, 2009, United Auto filed its timely “Demand for Hearing and Compliance with court’s order Preliminary to Hearing on Motion to Tax Costs and Award Attorney’s Fees and Objection to Order Preliminary” (herein “Objection”). In its Objection, United Auto reserved the right to object to all the time records submitted by Appellee’s counsel alleging the records were inaccurate and inadequate.
At the hearing on Appellee’s motion for attorneys’ fees and costs the trial court initially ruled that United Auto had waived their objections for failure to comply with the Order Preliminary. When United Auto failed to advise the trial court of their timely objections, Appellee’s counsel did so during his cross-examination. Accordingly, the record reflects that the trial court reversed his previous oral ruling and allowed United Auto to examine and cross-examine the witnesses on their objections. On the evidence presented at the hearing, the trial court entered its Final Judgment and Order on Plaintiff’s Motion to Set Reasonable Attorney’s Fee (sic) and Costs. United Auto’s timely appeal followed.
Standard of Review:
An appellate court reviews an order granting attorney’s fees or costs under the abuse of discretion standard. Turovets v. Khromov, 943 So. 2d 246 (Fla. 4th DCA 2006). The trial court has broad discretion to award attorney’s fees and, on appeal, a reviewing court will reverse a fee award only if there has been a clear abuse of discretion; absent an abuse of discretion, the trial court’s award of fees must he upheld. Humane Soc. of Broward County, Inc. v. Florida Humane Soc., 951 So. 2d 966 (Fla. 4th DCA 2007) [32 Fla. L. Weekly D702c].
On appeal, United Auto argues that there was no competent substantial evidence to support the fee award; and, the trial court prohibited them from presenting argument and cross-examination of Appellee’s counsel.
On the record here, at the hearing on the motion to tax attorney’s fees and costs. United Auto failed to advise the trial court of its order which extended the time for it to comply with the Order Preliminary. United Auto also failed to interpose any objection when the trial court ruled that United Auto waived its objections, made no objection to the entry of the attorneys’ time sheets and failed to oppose the trial court’s limitation of its cross examination of the attorneys. Still further, United Auto offered no proffer of the evidence it wished to elicit had the trial court not limited its cross-examination.
Nevertheless, Appellee’s counsel pointed out to the trial court that United Auto had made certain timely objections about their motion for attorneys’ fees in their Objections. Indeed, the record reflects that the trial court reversed its prior ruling and allowed United Auto to continue finding that they had “objected to all of the time based on grounds that the time records were inaccurate and inadequate. So if you have anything in that area and you want to expand on that.” As such, this Court finds no basis for United Auto’s argument that they were prohibited from presenting argument and cross-examination of Appellee’s counsel, and thus, affirm on this issue.
Turning now to the issue of competent substantial evidence, the Fourth District Court of Appeal has previously recognized that “an award of attorney’s fees must be supported by expert evidence, including the testimony of the attorney who performed the services.” Rodriguez v. Campbell, 720 So.2d 266, 267 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D2227c].
Generally, when an attorney’s fee or cost order is appealed and the record on appeal is devoid of competent substantial evidence to support the order, the appellate court will reverse the award without remand. However, like here, when the record contains some competent substantial evidence supporting the fee or cost order, yet fails to include some essential evidentiary support such as testimony from the attorney performing the services, or testimony from additional expert witnesses, the appellate court will reverse and remand the order for additional findings or an additional hearing, if necessary. Id.at 268 (citations omitted); see also DeMello v. Buckman, 991 So.2d 907, 909 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D1887a]. Accordingly it is
ORDERED AND ADJUDGED that the trial court’s Final Judgment and Order on Plaintiff’s Motion to Set Reasonable Attorney’s Fee (sic) and Costs is hereby REVERSED and REMANDED for an additional hearing and addition findings.
