CED Capital Holdings 2000 EB, LLC v. CTCW-Berkshire Club, LLC

• Docket Number: Case No. 6D23-1136
• Decision Date: 03 February 2023
• Citation: CED Capital Holdings 2000 EB, LLC v. CTCW-Berkshire Club, LLC, 363 So.3d 192 (Fla. App. 2023)
• Citation: 363 So. 3d 192
• Parties: CED CAPITAL HOLDINGS 2000 EB, LLC, Appellant, v. CTCW-BERKSHIRE CLUB, LLC, Appellee.
• Court: Florida District Court of Appeals

363 So.3d 192

CED CAPITAL HOLDINGS 2000 EB, LLC, Appellant,

v.CTCW-BERKSHIRE CLUB, LLC, Appellee.

Case No. 6D23-1136

District Court of Appeal of Florida, Sixth District.

February 3, 2023

Tucker H. Byrd and Scottie N. McPherson, of Byrd Campbell, P.A., Winter Park, and David A. Davenport and Justin H. Jenkins, of BC Davenport LLC, Minneapolis, Minnesota, Pro Hac Vice, for Appellant.

Zachary J. Bancroft, of Baker Donelson Bearman Caldwell & Berkowitz, PC, Orlando and Steven F. Griffith, Jr., of Baker Donelson Bearman Caldwell & Berkowitz, PC, New Orleans, Louisiana, Pro Hac Vice, for Appellee.

NARDELLA, J.

This appeal stems from an interim judgment denying CED Capital Holdings2000 EB, L.L.C.’s ("CED")Motion for Attorneys’ Fees and Costs("motion") after it prevailed against CTCW-Berkshire Club, L.L.C.("CTCW").¹The parties agreed that CED was entitled to recover its reasonable fees but disagreed about the amount to be awarded.Following an evidentiary hearing, the trial court denied CED's motion, finding that it failed to present sufficient evidence, namely testimony from its attorneys, concerning the legal services performed in the case.Because invoices in evidence were sufficient, it was error for the trial court to deny CED's motion on the ground that testimony from counsel was also required.Accordingly, we reverse and remand for further proceedings.

Background

This case has a long and contentious history which need not be recounted to understand this appeal.Suffice it to say, CED filed this case against CTCW claiming that it breached their partnership agreement.The agreement contained a provision allowing the prevailing party in such an action to recover reasonable attorneys’ fees and costs.As the prevailing party, CED filed a motion seeking an award of nearly $900,000 in attorneys’ fees.

Thereafter, the trial court held a two-day evidentiary hearing on CED's motion.During CED's case-in-chief, Brian Spear, CED's manager, and Robert Stovash, an expert witness, testified in support of the motion.During Mr. Spear's testimony, CED entered the invoices it received from its counsel.The invoices described the tasks performed and identified the individuals who performed each task, the amount of time spent on each task, and the amount billed for each task.Importantly, the invoices were admitted into evidence without limitation and over discrete objections, none of which are at issue in this appeal.²

After the invoices were admitted, Mr. Spear testified that he received the invoices, reviewed them, and found them to be reasonable and reflective of the work he commissioned.

Counsel for CED did not call any attorney who had worked on the case, despite disclosing those attorneys as witnesses and despite several of those attorneys being present during the hearing.CED also did not introduce into evidence the attorneys’ affidavits it had previously attached to its motion that outlined the fees billed.

After Mr. Spear's testimony, CED proceeded to address the reasonableness of its fee request.In doing so, CED called CTCW's lead attorney, who testified to billing CTCW nearly twice the amount of fees CED was seeking.CED then called attorney Robert Stovash as an expert witness, who, after describing the unique aspects of the case, opined as to the reasonableness of the number of hours spent on the case and rates charged per hour by each timekeeper.After Mr. Stovash's testimony, CED rested.

At the conclusion of all the evidence, and after calling only a rebuttal fee expert, CTCW moved for a directed verdict, arguing that CED failed to present testimony from its attorneys about the work performed during the case and, thus, failed to satisfy its burden of showing that it was entitled to the fees it sought.The trial court agreed and entered an interim judgment denying CED's motion, finding, in relevant part, that CED's evidence was insufficient because

none of the attorneys for [CED] testified to provide evidence detailing the services performed to [CED].No affidavit of any attorney for [CED] was moved into evidence.The testimony of Mr. Spear with respect to the receipt, review and payment of [CED's] attorneys’ fees invoices is insufficient for [CED] to carry its burden.He is not an attorney, did not provide detail as to the services provided, and did not (and could not, as a non-expert) offer an opinion that the tasks performed as described [in] the fee invoices were reasonably related to the prosecution of [CED's] case.

In light of this ruling, the trial court did not go on to consider whether the work performed, or the requested hourly rates were reasonable.See generallyRosen v. Rosen , 696 So. 2d 697, 699(Fla.1997)("[U]nder the lodestar approach, a court multiplies the number of hours reasonably expended by a reasonable hourly rate.This produces the ‘lodestar,’ which is the objective basis for the award of attorney's fees.").Instead, this appeal followed.

On appeal, CED argues that the trial court erroneously concluded that the attorneys performing the work must testify as to the services performed.In response, CTCW cites several cases supporting the trial court's ruling which hold that testimony from counsel, in some form, is necessary to prove the legal work which was performed.As the error alleged by CED is based upon the trial court's interpretation of law, our review is de novo.Infiniti Emp't Sols., Inc. v. MS Liquidators of Ariz., LLC , 204 So. 3d 550, 553(Fla. 5th DCA2016)(quotingFerere v. Shure , 65 So. 3d 1141, 1144(Fla. 4th DCA2011) ).

Analysis

The parties’ arguments on appeal mirror the disagreement among Florida's appellate courts regarding the need for testimony from the attorney who performed the work to support a request for attorneys’ fees.CED argues that we should follow those cases holding that testimony from the attorney who performed the work is not required when there is other admissible evidence detailing the nature and extent of the services performed.See, e.g. , Cozzo v. Cozzo , 186 So. 3d 1054, 1055–56(Fla. 3d DCA2015)(finding that invoice time sheets were sufficient, admissible proof);Morton v. Heathcock , 913 So. 2d 662, 669(Fla. 3d DCA2005)(holding that an attorney performing the services need not testify, but that evidence regarding the nature and extent of the services rendered must be adduced);Nants v. Griffin , 783 So. 2d 363, 366(Fla. 5th DCA2001)(holding that the attorney performing the work is not required to testify when evidence is introduced at the hearing detailing the services performed);Saussy v. Saussy , 560 So. 2d 1385, 1386(Fla. 2d DCA1990)(stating that competent evidence included time slips).

CTCW, on the other hand, argues that we should agree with cases requiring an award of attorneys’ fees to be supported by evidence in the form of attorney testimony.See, e.g. , Henderson v. OneWest Bank, FSB , 217 So. 3d 209, 210(Fla. 1st DCA2017)(holding that absent a stipulation or waiver, the party seeking fees should present testimony from the lawyer who performed the services or an authorized representative of the law firm);Pridgen v. Agoado , 901 So. 2d 961, 962(Fla. 2d DCA2005)(holding that an award of attorney's fees requires evidence in the form of testimony by the attorney performing services);Tutor Time Merger Corp. v. MeCabe , 763 So. 2d 505, 506(Fla. 4th DCA2000)(holding that an award of 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 DCA1998)(holding that expert testimony is required to award attorney's fees and expert testimony includes the testimony of the attorney performing the services);Cohen v. Cohen , 400 So. 2d 463, 465(Fla. 4th DCA1981)(holding that testimony of the attorney who performed the work should be required by the trial court).

In addressing this disagreement among Florida's intermediary courts, we begin by repeating a well-known rule—that an appellate court is not bound by any of the decisions issued by its sisterappellate courts.Point Conversions, LLC v. WPB Hotel Partners, LLC , 324 So. 3d 947, 960(Fla. 4th DCA2021).This rule of Florida jurisprudence applies equally to the newly created Sixth District Court of Appeal.E.g. , Bunkley v. State , 882 So. 2d 890, 924(Fla.2004)(Pariente, J., dissenting)("A district court[of appeal] decision is never binding on [the Supreme Court of Florida] or another district court.");Va. Ins. Reciprocal v. Walker , 765 So. 2d 229, 233(Fla. 1st DCA2000)(noting that the decision of a sisterdistrict court of appeal was binding on the trial court following diagonal authority principles but stating that "the decision does not have the same binding effect in this court");State v. Hayes , 333 So. 2d 51, 53(Fla. 4th DCA1976)("[A]s between District Courts of Appeal, a sister district's opinion is merely persuasive.").As a result, the Sixth District Court of Appeal is not bound by the precedent of any of its sistercourts, including the Second and Fifth District.Instead, in the absence of a Florida Supreme Court decision on point, our consideration of whether sworn testimony from counsel must be introduced as evidence of the work performed is analyzed by returning to first principles.

It is well rooted in our jurisprudence that attorneys’ fees in civil litigation are ordinarily borne by the party who incurs them.Topalli v. Feliciano , 267 So. 3d 513, 518(Fla. 2d DCA2019).Over the years exceptions to this deeply rooted rule have developed, leaving the question of how best to determine the amount of fees recoverable when such an exception presents.That is the very issue the Florida Supreme Court tackled in Florida Patient's Compensation Fund v. Rowe , 472 So. 2d 1145(Fla.1985), wherein the court adopted the federal lodestar approach for computing reasonable attorneys’ fees and articulated specific guidelines to aid trial judges in the...