Mitchell v. Flatt

• Decision Date: 05 August 2022
• Docket Number: 2D21-487
• Parties: J. CARLTON MITCHELL, ESQ., Appellant, v. MICHAEL TODD FLATT, Appellee.
• Court: Florida District Court of Appeals

J. CARLTON MITCHELL, ESQ., Appellant, v. MICHAEL TODD FLATT, Appellee.

No. 2D21-487

Florida Court of Appeals, Second District

August 5, 2022

Appeal from the County Court for Hillsborough County; Michael C Baggé-Hernández, Judge.

J Carlton Mitchell, pro se.

J Kevin Carey of Law Offices of J. Kevin Carey P.A., Tampa (withdrew after briefing); Barbara Prasse-Anderson of Prasse-Anderson Law Group, Tampa (substituted as counsel of record), for Appellee.

SMITH JUDGE.

This is an appeal from a series of orders finding entitlement to sanctions in favor of Michael Todd Flatt based on a discovery violation by defense attorney J. Carlton Mitchell and awarding fees and costs related to the violation against attorney Mitchell. As detailed below, we affirm without comment the order finding entitlement to expenses related to a discovery violation under Florida Rule of Civil Procedure 1.380(d) and the related portion of the order denying reconsideration of that finding. We likewise affirm without comment the award of costs in the amount proven to have been reasonably expended. However, because Mr. Flatt's attorney, J. Kevin Carey, was fully aware of the obligation to present expert testimony to support the reasonableness of the fee sought and because counsel failed to meet this obligation, we reverse that portion of the order awarding attorney's fees without remand. Based upon the exceptional facts of this case, Mr. Flatt is not entitled to an additional opportunity to meet this burden and present the requisite expert testimony substantiating the reasonableness of the fee amount sought.

I.

Within the underlying litigation, attorney Mitchell served as counsel for Marci Beth Baron-Flatt (the defendant below) in a case brought by Mr. Flatt, her former husband (the plaintiff below), concerning an alleged loan between the former spouses. After Ms. Baron-Flatt failed to attend a scheduled deposition at the advice of attorney Mitchell, Mr. Flatt moved for discovery sanctions against attorney Mitchell under rule 1.380(d). Following a hearing on the sanctions motion, the trial court entered an initial order granting the motion finding that Mr. Flatt was entitled to sanctions against attorney Mitchell. Following a second hearing, the trial court denied reconsideration of the entitlement finding and awarded attorney's fees and costs under rule 1.380(d) against attorney Mitchell. Attorney Mitchell challenges both orders on appeal.

At the second hearing set for determining the amount of fees reasonably expended, Mr. Flatt's counsel below, attorney Carey, testified as to his billing records related to the deposition and Ms. Baron-Flatt's failure to attend the same based on her attorney's advice. He also testified that he believed his fee was reasonable. However, while attorney Carey had engaged a fee expert to testify as to the reasonableness of his fee, that expert was unexpectedly unavailable at the hearing and did not testify. A continuance to allow the fee expert to testify was discussed on the record but was not pursued by attorney Carey. Instead, attorney Carey attempted to introduce the fee expert's affidavit, which drew an objection from attorney Mitchell on hearsay grounds. The hearsay objections were sustained and the fee expert affidavit was excluded by the trial court.^[1]

Ultimately, the trial court granted an award of fees against attorney Mitchell in the amount of $4,695-the amount submitted in attorney Carey's billing records. However, evidence as to the reasonableness of the hours and rate comprising that amount in the form of expert testimony was not presented despite attorney Mitchell arguing to the trial court that such evidence was required and attorney Carey's awareness of this evidentiary requirement. Instead, the record reflects that attorney Carey argued in favor of the court deciding the matter without the presentation of such expert testimony.

II.

Rule 1.380(d) provides that if a party fails to appear at a scheduled deposition after being served with proper notice, the trial court may impose sanctions, including "the reasonable expenses caused by the failure, which may include attorneys' fees." Fla. R. Civ. P. 1.380(d). The law is well-settled: "Even when an attorney's fee award is entered as a sanction, it must be supported by expert evidence as to the reasonableness of the amount of time expended and the reasonableness of the hourly fee." Rakusin v. Christiansen & Jacknin, P.A., 863 So.2d 442, 444 (Fla. 4th DCA 2003); see also Crittenden Orange Blossom Fruit v. Stone, 514 So.2d 351, 352-53 (Fla. 1987) ("[I]t is well settled that the testimony of an expert witness concerning a reasonable attorney's fee is necessary to support the establishment of the fee." (first citing In re Estate of Cordiner, 497 So.2d 920 (Fla. 2d DCA 1986); then citing Mullane v. Lorenz, 372 So.2d 168 (Fla. 4th DCA 1979); and then citing Lyle v. Lyle, 167 So.2d 256 (Fla. 2d DCA 1964)).

In the instant case, there is no question that the trial court erred in determining the amount of attorney's fees without considering expert testimony as to reasonableness. See Rakusin, 863 So.2d at 444; see also Fitzgerald v. State, 756 So.2d 110, 112 (Fla. 2d DCA 1999) ("Although the attorney can testify as to the amount of time expended, the attorney must present some expert testimony as to what would be a reasonable hourly fee."); Snow v. Harlan Bakeries, Inc., 932 So.2d 411, 412 (Fla. 2d DCA 2006) (recognizing that an attorney cannot offer self-proof on the reasonableness of his or her fees without resort to independent expert testimony). The parties dispute, however, whether this case should be remanded for Mr. Flatt to have another opportunity to introduce the necessary expert testimony. Attorney Mitchell urges this court to reverse without remand under Tracey v. Wells Fargo Bank, N.A., 264 So.3d 1152, 1168 (Fla. 2d DCA 2019), which stands for the proposition that an appellate court "may exercise some level of equitable discretion to consider the circumstances of the particular case" when determining the scope of remand. Mr. Flatt, however, requests another opportunity to present the requisite expert testimony citing no cases at all in support of his position.^[2] "[R]emand directions are within the discretion of the appellate court" as bounded by the limits of the law. See R.J. Reynolds Tobacco Co. v. Prentice, 290 So.3d 963, 967 (Fla. 1st DCA 2019), approved, No. SC20-291, 47 Fla.L.Weekly S78 (Fla. Mar. 17, 2022) (citing Tracey , 264 So.3d at 1168-69). "Generally, when an attorney's fee or cost order is appealed and the record on appeal is devoid of competent substantial evidence to support the order, the appellate court will reverse the award without remand." Rodriguez v. Campbell, 720 So.2d 266, 268 (Fla. 4th DCA 1998). Rodriguez also recognizes that there are exceptions to that general rule:

[W]hen the record contains some competent substantial evidence supporting the fee or cost order, yet fails to include some essential evidentiary support such as testimony from the attorney performing the services, or testimony from additional expert witnesses, the appellate court will reverse and remand the order for additional findings or an additional hearing, if necessary.

Id.; accord Snow, 932 So.2d at 413 ("Because the trial court determined the amount of attorney's fees without expert testimony, we reverse and remand. We remand because the record is not completely devoid of evidence-both the trial and appellate attorneys provided sworn affidavits and testified as to their rate and hours."); cf. Tutor Time Merger Corp. v MeCabe, 763 So.2d 505, 506 (Fla. 4th DCA 2000) (confirming propriety of discovery sanctions but reversing fee award without remand where there was no evidence of "hours reasonably expended as a result of the discovery violations or a reasonable hourly rate").^[3] This is not a case where the attorney testified as to the amount of time expended and the rate charged but simply neglected to obtain testimony from an expert witness on the reasonable amount of the fees, such that the instances articulated as "exceptions" that allow for remand despite the general rule might be read to apply.^[4] This is a unique case involving counsel's conscious decision to not present necessary evidence and to proceed without it. Under such circumstances, Rodriguez acknowledges, apart from even the general rule and certainly without resort to examining possible exceptions thereto, a case from the Fourth District in which the court refused to remand for an additional evidentiary hearing where "the fee-seeking attorney admitted to the trial court he was aware of the need for additional expert testimony substantiating the reasonableness of his fees, yet failed to provide the evidence he promised." 720 So.2d at 268 ("Under those circumstances this court refused to remand for further hearing '[b]ecause the attorney was fully aware of his obligations and failed to meet them.'" (alteration in original) (quoting Cottman v. Cottman, 418 So.2d 1241, 1243 (Fla. 4th DCA 1982)). We find the facts in Cottman to be on all fours with the facts of this case-the same scenario and basis not to remand for a second bite at the apple is presented in this appeal.^[5] Fee awards must be supported by "a predicate of substantial competent evidence in the form of testimony by the attorney performing services and by an expert as to the value of those services." Cooper v. Cooper, 406 So.2d 1223, 1224 (Fla. 4th DCA 1981) (emphasis added) (citing Cohen v. Cohen, 400 So.2d 463, 465 (Fla. 4th DCA 1981)). At the hearing to determine the reasonableness of his fee, attorney Carey was aware that the reasonableness of his fee must be established by way of an expert witness. To be sure,...