Horowitz v. Rossdale CLE, Inc.

Decision Date17 February 2023
Docket Number5D21-2738
PartiesRONALD HOROWITZ, Appellant, v. ROSSDALE CLE, INC. Appellee.
CourtFlorida District Court of Appeals



No. 5D21-2738

Florida Court of Appeals, Fifth District

February 17, 2023


Appeal from the County Court for Flagler County, LT Case Nos. 2017-SC-000086, 2019-AP-000001 D. Melissa Distler, Judge.

Ronald Horowitz, Palm Coast, pro se.

Jordan A. Dresnick, Miami, for Appellee.


In this case from the small claims division of the county court, the court dismissed Appellant's complaint and ordered him to pay attorney's fees pursuant to section 57.105, Florida Statutes (2019). We affirm the dismissal


of the complaint without further discussion. However, we reverse the award of attorney's fees.

Among his arguments for reversal, Appellant maintains that the court's fee award was not supported by competent, substantial evidence. Normally, the lack of a hearing transcript would preclude review of this issue. See Lizardi v. Federated Nat'l Ins. Co., 322 So.3d 184, 190 (Fla. 2d DCA 2021). Here however, the face of the order, which includes an inventory of the evidence presented at the hearing, shows that Appellee ("Rossdale") failed to present the evidence necessary to receive an attorney fee award. Thus, review is possible. See Biss v. Biss, 292 So.3d 846, 847 (Fla. 5th DCA 2020) (noting that the lack of a transcript does not prevent the court from addressing errors that appear on the face of the record); see also Phillips v. Phillips, 1 So.2d 186, 188 (Fla. 1941) (recognizing that statements in a trial court's judgment are presumed to be accurate unless they are contradicted by other parts of the record).


An award of attorney's fees under section 57.105 must be supported by competent, substantial evidence. See Shortes v. Hill, 860 So.2d 1, 2 (Fla. 5th DCA 2003). This evidence should include "records detailing the amount of work performed and the time to perform each task" as well as expert


testimony to establish "both the reasonableness of the hours and a reasonable hourly rate." Nants v. Griffin, 783 So.2d 363, 366 (Fla. 5th DCA 2001). But the attorney who performed the work "is not required to testify when there is competent evidence filed in support of the motion or introduced at the hearing detailing the services performed." Id.

In this case, the order indicates that the court received the following evidence from Rossdale: affidavits from two fee experts, testimony from one of those experts, an affidavit from Rossdale's Counsel-which Rossdale did not file until "after the conclusion of the hearing"-and two other documents. The court's order describes the first of those documents as "an exhibit which purports to be an unsworn timesheet with no other title or description," and the second as "a document titled Defendant's calculation of fees &costs against Plaintiff following the Court's granting of attorney's fees." The court noted that the second document, while declaring to be under penalty of perjury, did not otherwise comply with the requirements for an affidavit.

The court went on to note that no corporate representative for Rossdale testified and that "[t]here was never any retainer agreement or billing submitted." The court then attempted to complete a Rowe[1] analysis,


but as to several of the factors, it indicated that the factor was "unknown due to lack of evidence." And before decreeing its calculated fee award, the court acknowledged that Appellant's "point regarding the lack of competent substantial evidence as to [Counsel for Rossdale's] actual hourly rate and hours expended is well taken."

Thus, the court did not have an adequate evidentiary foundation to calculate a reasonable amount of fees to award Rossdale. See Nants, 783 So.2d at 366; see also Schreiber v. Schreiber, 331 So.3d 874, 877 (Fla. 5th DCA 2021) ("In the instant case, Former Wife presented solely expert testimony of fees; there was no properly authenticated fee affidavit or testimony from any of Former Wife's attorneys, nor did Former Wife introduce


into evidence, or even proffer, any time sheets or billing records from any of Former Wife's attorneys. Former Wife's failure to adduce competent...

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