A recent Daily Business Review article by Jonathan Mann, "Appellate Brief: When Expert Testimony is Required to Obtain an Award of Attorney Fees," reports on whether a party seeking an award of attorney fees needs an expert witness to testify in support of the reasonableness of fees requested in Florida. This article was posted with permission. The article reads:
Whether a party seeking an award of attorney fees needs an expert witness to testify in support of the reasonableness of the fees requested has been the subject of much discussion and many written legal opinions in Florida. The answer depends on the type of case, against whom fees are being sought, and in what area of the state the case is proceeding.
The general rule is that a party seeking an award of attorney fees from the other party to litigation must introduce the testimony of an expert witness in support of the request. Family law proceedings under Chapter 61 are a notable exception, as the statute expressly provides that expert testimony of a fee witness is unnecessary to seek an award of attorney’s fees from the other side in proceedings under that chapter. The general rule requiring expert testimony appears to hold true when seeking fees in the same proceeding pursuant to a charging lien. See, Roshkind v. Machiela, 45 So.3d 480 (Fla. 4th DCA 2010). But things are more uncertain when an attorney seeks unpaid attorney fees from the attorney’s own client or former client.
The Fourth DCA held in Valentin Rodriguez v. Altomare, 261 So. 3d 590 (Fla. 4th DCA 2018) that expert fee witness testimony was unnecessary in a separate breach of contract suit by an attorney against his former client. The attorney sued his former client for unpaid legal fees under a flat fee contract in a criminal case. Notably, the case involved a flat fee arrangement. The former client did not dispute the amount of the fee, and had even acknowledged the debt by executing a promissory note for the unpaid balance.
The Fourth DCA recently reaffirmed and clarified its position on the issue of the necessity of expert fee witness testimony in separate breach of contract actions in Ramblewood East Condominium Association v. Kaye Bender Rembaum, 294 So. 3d 923 (Fla. 4th DCA 2020). Robin Bresky assisted in presenting oral argument for the appellee before the Fourth DCA in the Ramblewood appeal, and the appellee successfully defended the award of attorney fees. In that case, the Fourth DCA relied upon Rodriguez in affirming an award of attorney fees for a law firm that filed a separate breach of contract action to collect unpaid attorney fees even though the firm did not present expert testimony as to the reasonableness of fees. The fee agreement at issue in Ramblewood was not a flat fee like the one in Rodriguez.
The Third DCA also recently followed Rodriguez in Law Offices of Granoff & Kessler v. Glass, 305 So. 3d 345 (Fla. 3d DCA 2020). In Granoff, a law firm sued its former client for unpaid attorney fees incurred in a dissolution of marriage proceeding by bringing a separate breach of contract claim against the former client under the attorney-client fee agreement. The Third DCA held that expert fee witness testimony is not necessary when an attorney files a separate breach of contract suit as long as the attorney testifies regarding the fees and submits the billing invoices into evidence. The court noted that in such a case, the fees are sought from a former client who agreed to pay them rather than an adverse party who did not.
In so ruling, the Third DCA certified conflict with Snow v. Harlan Bakeries, 932 So. 2d 411 (Fla. 2d DCA 2006) and the case went to the Florida Supreme Court. The Granoff & Kessler case was fully briefed and awaiting disposition in the Florida Supreme Court until March 26. However, on that date the Supreme Court entered an order determining that it should decline to exercise jurisdiction.
As a result, the apparent split that currently exists among Florida DCAs on the issue of whether an attorney pursuing fees from a former client in a separate proceeding must introduce the testimony of an expert fee witness remains. Thus, whether a party seeking attorney fees requires diligent attention to the facts and circumstances of the particular situation. For now, it appears that expert fee witness testimony is unnecessary to pursue attorney fees in a separate action in the circuit courts within the Third and Fourth Districts, whereas the opposite is true in the Second and Fifth Districts. The answer is unclear in the First District, but the cautious practitioner would always be wise to introduce such testimony in support of the request for attorney fees to avoid any possibility of a challenge on such grounds on appeal.
Jonathan Mann is a senior associate at Bresky Law. Prior to joining the firm, Mann worked as a judicial staff attorney to Judge George A. Shahood at Florida’s Fourth District Court of Appeal. In this role, Mann managed civil and criminal appeals and gained extensive experience in the appellate process and procedural rules.