Island Hoppers, Ltd. v. Keith

• Decision Date: 29 May 2002
• Docket Number: No. 4D01-143.,4D01-143.
• Citation: 820 So.2d 967
• Parties: ISLAND HOPPERS, LTD., Appellant, v. Norma Beard KEITH, Personal Representative for the Estate of Marsha K. Beard, Appellee.
• Court: Florida District Court of Appeals

820 So.2d 967

ISLAND HOPPERS, LTD., Appellant, v. Norma Beard KEITH, Personal Representative for the Estate of Marsha K. Beard, Appellee.

No. 4D01-143.

District Court of Appeal of Florida, Fourth District.

May 29, 2002.

Rehearing Denied June 27, 2002.

Steven G. Schwartz of Schwartz & Horwitz, P.A., Boca Raton, for appellant.

Newton Patrick Porter, Tony Korvick of Porter & Korvick, Miami, and Philip M. Burlington of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, for appellee.

POLEN, C.J.

Island Hoppers, Ltd. timely appeals the circuit court's Final Judgment awarding attorneys fees in favor of Tony Korvick and Newt Porter, Esqs., trial counsel for Appellee Norma Beard Keith. This appeal solely concerns the determination of the size of an attorneys' fees award to which entitlement had already been established and affirmed. Island Hoppers, Ltd. v. Register, 751 So.2d 590 (Fla. 4th DCA 1999).

Since our decision in the prior appeal arising from this litigation was by way of Per Curiam Affirmance, we briefly address the underlying facts of this litigation in order to provide the proper factual context to the instant opinion. In May of 1995, Norma Beard Keith, as personal representative of the Estate of Marsha Beard ("Beard"), instituted a wrongful death claim against Island Hoppers. The lawsuit primarily alleged Island Hoppers, a dive operator, had provided "negligent dive supervision" while Beard was on one of their sponsored dive charters. Liability was alleged on behalf of Island Hoppers both in its direct capacity, and vicariously, on behalf of two of its employees, party codefendant dive instructors. In August of 1996, Beard's estate filed three demands for judgment, pursuant to Florida Statutes 768.79, against Island Hoppers and the two dive instructors, of one million dollars each, for a total of three million dollars, which were all rejected. Three new demands for judgment were filed on December 22, 1997, seeking $400,000 from each party, for a total of $1.2 million dollars, which were also rejected. The case proceeded to trial in March of 1998.

The jury ultimately returned a verdict in favor of Beard's estate, resulting in a $609,004.50 judgment against Island Hoppers. The Estate moved for its attorneys' fees pursuant to section 768.79.¹ The court held the Estate's recovery was more than 25% greater than the $400,000 demand which Island Hoppers had rejected in December 1997, and awarded the Estate its reasonable attorneys' fees, accruing from December 22, 1997 through the Final Judgment. Island Hoppers appealed the judgment and the attorneys' fees award, both of which were per curiam affirmed by this court. Island Hoppers, 751 So.2d 590.

A hearing was held in the circuit court, Judge Brown presiding, to determine the amount of the attorneys' fees award to which the Estate's entitlement had already been established. Trial counsel for the Estate, Korvick and Porter, testified on their own behalf regarding their experience, the nature of the underlying litigation, and the hours and rate they were claiming, by way of testimony and sworn affidavit. They also offered the deposition of Attorney Jeffrey Liggio as an expert fees witness. Liggio primarily opined that the fees sought seemed reasonable, and nothing seemed "out of line." He also opined a risk factor multiplier in the range of 2.25 to 2.5 should be applied to the fee award, as provided under Rowe, Quanstrom, and Bell.² Island Hoppers offered the testimony of its own expert, Attorney Fred Fulmer, who opined the hourly rate and number of hours sought were excessive. He also opined a multiplier should not be applied to the fee award, since he believed it would not have been difficult to obtain counsel, where there were so many "personal injury attorneys" in the area.

In its detailed Final Judgment, the court found the hours sought by both attorneys were reasonable, and set Korvick's hourly rate at $300 an hour, and Porter's hourly rate at $250 an hour. This resulted in a lodestar fee award (hours sought × hourly rate to be applied) of $210,850, for the applicable time period. The court also held a contingency risk multiplier of 2.3 should be applied due to a variety of factors which had made success unlikely at the outset. The multiplied fee award equaled $484,955, plus prejudgment interest accruing from the date of the Final Judgment in the underlying litigation.

Island Hoppers raises two points in this appeal which we address in this opinion. First, Island Hoppers contends the trial court erred in admitting the deposition testimony of appellee's only expert fees witness, Liggio, and hence its fee claim lacked the essential element of supportive expert testimony. An award of attorneys' fees must be supported by competent substantial evidence. See Cohen v. Cohen, 400 So.2d 463 (Fla. 4th DCA 1981). In this regard, Florida courts have required testimony by the attorney performing the services (for which the fees are sought) and testimony by an expert fees witness as to the value of those services. See Cohen, 400 So.2d at 465; Markham v. Markham, 485 So.2d 1299, 1301 n. 8 (Fla. 5th DCA 1986); Brake v. Murphy, 736 So.2d 745, 747-49 (Fla. 3d DCA 1999); Fitzgerald v. State, 756 So.2d 110, 111-12 (Fla. 2d DCA 1999).

At his deposition, Liggio admitted he had spent a scant three hours of preparation in forming his opinion regarding the reasonableness of the fees sought by Korvick and Porter. He further admitted Korvick and Porter had dropped off twenty (20) boxes of litigation materials for his perusal; he reviewed absolutely none of those materials. He stated in forming his opinion he had reviewed the following materials: a jury reporter verdict blurb, the motion for fees and the attached affidavits, the fee contract between Korvick, Porter, and the Estate, closing arguments and opening statements from trial, and the appellate briefs from the prior appeal on the merits. He also stated he had discussed the case with Korvick and Porter, and that he had some experience, albeit limited, with Korvick and Porter, and had discussed their reputations with other lawyers in the community. Island Hoppers argued below, and on this appeal, that this is simply not enough, that Liggio's underlying factual predicate is so lacking that his opinions should not have been entertained by the court.

We begin our analysis by recognizing that allegations that an expert witness lacked a sufficient factual predicate to form an opinion, go to the weight to be given to the evidence (the expert's opinion) rather than its admissibility. See Nat Harrison Assocs., Inc. v. Byrd, 256 So.2d 50 (Fla. 4th DCA 1971). As such, a trial court's determination of the competency of expert testimony will not be disturbed on appeal absent a clear abuse of discretion. Gershanik v. Dept. of Prof'l Regulation, Bd. of Med. Examiners, 458 So.2d 302 (Fla. 3d DCA 1984). Using this highly deferential standard on review, we find no error in the trial court's exercise of its discretion.

When this issue was raised at the fee hearing, the court took a recess to provide itself an opportunity to personally review Liggio's deposition. The court found Liggio was very familiar with the numerous issues involved in the underlying case, and thus allowed the admission of his deposition as supportive expert testimony. Although we find no abuse of discretion in the lower court's admission of Liggio's opinion, we note the better practice would have been for Plaintiff/Appellee Estate to present an expert fees witness who was notably more familiar with the actual litigation files themselves. Although Liggio was knowledgeable of the issues involved in the underlying litigation, and his own expertise was readily apparent, having been inter alia, President of the Florida Academy of Trial Lawyers (1998-1999), he readily admitted his general lack of familiarity with any of the actual litigation files or materials contained therein, which constituted the basis for the fees sought. This is a murky area where few courts have spoken with a clear voice. Clearly every case is to some degree factually unique, and we can maintain no steadfast black-letter rule which shall control in all situations. Still, we maintain there is a spectrum involved, reflecting various degrees of familiarity with the factual predicate which reflect basic standards of diligence and reasonableness. Liggio's factual predicate in the instant case tends towards the lower end of the spectrum of what this court considers reasonable and acceptable. Nonetheless, where the sufficiency of Liggio's factual predicate went to the weight to be accorded to his expert opinion, we hold the trial court did not abuse its discretion in considering his opinion in reaching its determination of what constituted a reasonable fee.

Notwithstanding the foregoing, we question whether in the words of the preeminent playwright, this is all "much ado about nothing." Though Florida courts have long required the corroborative testimony of an expert "fees witness," we question whether the rule is always the best, or most judicious, practice. We note this practice has existed since at least the 1960s. See, e.g., Lyle v. Lyle, 167 So.2d 256 (Fla. 2d DCA 1964). Yet, we note as our profession matures and evolves, as it has over the past forty years, and continues to do so, our trial judges have become highly experienced in all aspects of litigation, often with knowledge equal to, or in some cases far superior to, that of those attorneys who are called upon to provide expert testimony as a "fees witness." Our trial judges see attorneys representing all levels of skill and experience in their courtroom; it is not uncommon for a trial judge to conduct multiple fee hearings practically every week. At the most basic level, we fail to see what, if any, "guidance" these "fees experts" actually provide to the well-versed trial judges of this state, who ultimately have the...