A recent Law.com story by Lisa Willis, “New Ruling Affects Fees For Lawyers Who Serve as Expert Witnesses”, reports that, an appeal in Florida’s Fourth District Court of Appeals— challenging a trial court’s decision to award appellate attorney fees and include an expert witness fee as a cost—has been affirmed.
One South Florida attorney said this appeals case ruling seemingly undid the Florida Supreme Court’s 1985 decision in Travieso v. Travieso, which had found that such fees were awarded at the court’s discretion. Now, the new opinion clarifies whether an expert witness is necessary to confirm the amount of fees being claimed.
“Basically, they said they’re kind of overruling the 1985 Supreme Court case, saying that if you have an attorney testifying as an expert, [the] fees must be awarded as costs,” Palm Beach County attorney Peter M. Feaman said. Feaman and Nancy E. Guffey of Peter M. Feaman P.A. in Boynton Beach represented the appellee, Suzanne J. Trombino. The ruling was entered pursuant to the Fourth DCA’s reversal opinion and attorney’s fees order in Trombino v. Echeverria from 2022.
In affirming the lower court ruling, the appeal court stated, “Our order permitted the trial court to award attorney’s fees to appellate Suzanne J. Trombino (individually and as trustee of two family trusts) if it found that the equities favored the imposition of fees. … The trial court determined Trombino was entitled to fees.”
Feaman, who has been practicing law more than 40 years, said the body of case law that has developed since the 1985 ruling says attorneys must have an independent expert every time to testify to the reasonableness of fees. “So that’s why the 1985 Supreme Court opinion can be interpreted differently now because the law has changed and been clarified via this ruling as to whether an expert witness is necessary to corroborate the amount of fees being claimed,” Feaman said. “The Fourth DCA appears to be saying is not discretionary any longer.” “I think that’s a significant part of the ruling, which is kind of a departure from the 1985 Supreme Court case, where they ruled it was discretionary with the trial court,” Feaman said.
The appeal was Dale Echeverria v. v. Suzanne J. Trombino as trustee of The Family Trust Created Under the Jose I Echeverria 2006 Trust, and as trustee of the Dorothy Jeanne 2006 Trust. It stems from a prior decision in Trombino v. Echeverria, where the appeals court had reversed a ruling and allowed for the potential awarding of attorney’s fees to Suzanne J. Trombino under specific statutory conditions. Palm Beach County Circuit Court Judge Charles E. Burton was the presiding judge in the Palm Beach County case.
Judge Alan O. Forst wrote the opinion with judges Martha C. Warner and Dorian K. Damoorgian concurring specially with opinion. “Hearings for the assessment of reasonable attorney’s fees have become much more complicated and time consuming since 1985 when the supreme court decided Travieso,” Warner wrote in concurring with opinion.
The jurist said that time spent reviewing an attorney’s work and testifying at a fee hearing has increased substantially. “No longer does one find an attorney at the courthouse on the day of the hearing to briefly review the case file and opine on the fee,” Warner said. “More likely, this case is an example of a typical contested fee hearing.”
The appellee’s attorney is in agreement. “When an attorney is testifying as an expert, his fees must be taxed as costs as part of the award,” Feaman said. “Previous to this, all the judges thought that it was discretionary. I think in the fourth district, that’s no longer the case.”
Upon remand to the trial court, Trombino sought attorney’s fees, arguing that the circumstances warranted such an award. However, the trial court sided with Trombino, finding she was entitled to the fees. Echeverria appealed.
Feaman said this ruling makes sense because, in 1985, the law was unsettled as to whether you needed an expert witness to corroborate your fee request. “Since that time, the law has developed now quite clearly, you must have an expert witness,” Feaman said. “So now that you must have an expert witness to corroborate your fee requests, it only makes sense that those fees incurred by that expert be taxed as cost because now it’s mandatory that you have an expert fee witness. So his charges or her charges should be mandatory as well that those charges get taxed.”
Trombino presented evidence of the costs incurred during the appeal process and introduced an expert in attorney’s fees, who testified that the requested amount was reasonable. Dale Echeverria also brought forth an expert, advocating for a lower fee, but the court ultimately ruled in favor of Trombino’s original request and included the full amount of the expert’s fee as a taxed cost.
Echeverria’s appeal raised three primary issues: the timing of the equity determination for the fee award, the evidence supporting the fee award, and the inclusion of the expert’s fee as a taxable cost. In affirming the trial court’s decision, the appellate court noted Echeverria’s own use of an expert witness to challenge the fee amount, which further justified the trial court’s discretion in this matter.
“The parties getting fees shouldn’t have to bear the brunt of the expert that now must testify to support those fees,” Feaman said. “Because if you’re the prevailing party and you’re getting fees, why should you have to be penalized for bringing in an expert witness? It should all be part of the cost incurred.”