Posted by Nydia Streets of Streets Law in Florida Florida Family Law Procedure

When attorney’s fees are awarded as a sanction in a Florida family law case, an expert must testify as to the reasonableness of the fees in order for the court to properly set an amount to be paid. Without the expert testimony, the fee awarded may be subject to being overturned on appeal. If it is appealed, there may not be a second opportunity to present the necessary testimony. This was an issue in the case Mitchell v. Flatt, 2D21-487 (Fla. 2d DCA August 5, 2022).

In the underlying case, an attorney representing a former wife in litigation between former spouses advised her not to attend her deposition. As a result, the trial court awarded attorney’s fees to the former husband as a sanction against the former wife’s attorney. A hearing was held regarding the amount of fees to be awarded. Although the former husband’s attorney hired an expert to attend the hearing and testify regarding the reasonableness of the fees, the expert was not available and did not attend the hearing. Opportunity to continue the hearing was offered, but the former husband’s counsel declined and proceeded to enter the fee expert’s affidavit which drew a hearsay exception from the former wife’s counsel. The former husband’s attorney then tried to testify as to his own fees, and the former wife’s counsel objected that the expert’s testimony was still needed. The former husband’s attorney argued the court could decide this issue without an expert, and the trial court awarded the fees requested despite the expert not being present to testify. The former wife’s lawyer appealed.

The appellate court affirmed the sanctions against the former wife’s lawyer, but reversed the attorney’s fee award. One central issue on appeal was whether or not the case should be remanded to give the former husband the opportunity to present expert testimony. The appellate court decided it was not proper to remand, holding “This is not a case where the attorney testified as to the amount of time expended and the rate charged but simply neglected to obtain testimony from an expert witness on the reasonable amount of the fees, such that the instances articulated as "exceptions" that allow for remand despite the general rule might be read to apply. This is a unique case involving counsel's conscious decision to not present necessary evidence and to proceed without it. Under such circumstances, Rodriguez acknowledges, apart from even the general rule and certainly without resort to examining possible exceptions thereto, a case from the Fourth District in which the court refused to remand for an additional evidentiary hearing where ‘the fee-seeking attorney admitted to the trial court he was aware of the need for additional expert testimony substantiating the reasonableness of his fees, yet failed to provide the evidence he promised.’”

The court continued “To now allow remand solely for the purpose of presenting this exact expert testimony—which [the former husband’s attorney] touted was not required—impermissibly grants a ‘second bite at the apple.’ [. . .] Therefore, because [the former husband’s attorney] conceded at oral argument that he knew it was his obligation to present expert testimony establishing that the fee he was requesting was reasonable and because a conscious decision was made to forego any continuance and instead proceed without that very evidence, we reverse that portion of the order awarding a fee without remand for further hearing.”

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