Rodriguez v. Campbell

• Court: Florida District Court of Appeals
• Writing for the Court: POLEN; GUNTHER, J., and WEINSTEIN, PETER M.
• Citation: Rodriguez v. Campbell, 720 So.2d 266 (Fla. App. 1998)
• Decision Date: 01 October 1998
• Docket Number: 97-1908,Nos. 97-1907,s. 97-1907
• Parties: 23 Fla. L. Weekly D2227 Gilberto RODRIGUEZ and Gladys Rodriguez, his wife, Appellants, v. David CAMPBELL, M.D., d/b/a Spinal Associates, Andrew Fox, M.D. and St. Mary's Hospital, Appellees.

Page 266

720 So.2d 266

23 Fla. L. Weekly D2227

Gilberto RODRIGUEZ and Gladys Rodriguez, his wife, Appellants, v. David CAMPBELL, M.D., d/b/a Spinal Associates, Andrew Fox, M.D. and St. Mary's Hospital, Appellees.

Nos. 97-1907, 97-1908.

District Court of Appeal of Florida Fourth District.

Oct. 1, 1998.

Rehearing Denied Nov. 25, 1998.

Robert A. Rosenblatt of Robert A. Rosenblatt, P.A., Coral Gables, for appellants.

Philip D. Parrish of Stephens, Lynn, Klein & McNicholas, P.A., Miami, for Appellee David Campbell, M.D.

Joseph H. Lowe of Winitz, Minkin & Lowe, Miami, for Appellee St. Mary's Hospital.

POLEN, Judge.

The Rodriguezes appeal two attorney's fees judgments entered in favor of David Campbell, M.D., and St. Mary's Hospital after Dr. Campbell and the hospital succeeded in securing dismissal of the Rodriguezes' underlying medical malpractice action. We reverse the orders and remand for the trial court to make additional findings.

We find merit in three arguments presented by the Rodriguezes. First, we agree the fee awards are deficient because they contain only bottom line fee totals, without any express findings regarding the number of hours reasonably expended or a reasonable hourly rate. An order awarding fees must expressly determine the number of hours reasonably expended on the litigation and the reasonable hourly rate for the type of litigation involved. Kelly v. Tworoger, 705 So.2d 670, 673 (Fla. 4th DCA 1998). We are unable to hold the error harmless because the record contains no oral findings regarding hours reasonably expended and reasonable hourly rate. Id.

Next, we agree with the Rodriguezes that the trial court should have awarded only those costs recoverable under the Statewide Uniform Guidelines for Taxation of Costs and incurred during the investigation and evaluation period. See Barnes v. City of Dunedin, 666 So.2d 574, 575 (Fla. 2d DCA 1996). On remand, the trial court should strike the inappropriate costs.

Finally, we agree with the Rodriguezes that an award of attorney's fees must be supported by expert evidence, including the testimony of the attorney who performed the services. Cohen v. Cohen, 400 So.2d 463 (Fla. 4th DCA 1981). Dr. Campbell and St. Mary's Hospital presented expert testimony substantiating their attorney fee claims including extensive direct and cross-examination regarding individual entries contained in their attorney's fee affidavits; however, the timekeeper attorneys for these parties did not testify at the hearings and their attorney's fee affidavits were not admitted into evidence.

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. E.g., Cooper v. Cooper, 406 So.2d 1223 (Fla. 4th DCA 1981); Warner v. Warner, 692 So.2d 266, 268 (Fla. 5th DCA 1997). However, when 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. E.g., Mettler v. Mettler, 569 So.2d 496 (Fla. 4th DCA 1990) (reversing amount of post-judgment, non-appellate attorney ad litem fee award based on insufficient expert testimony and remanding "as to this point"); In re: One 1972 Volvo Vehicle, 489 So.2d 1240 (Fla. 4th DCA 1986) (reversing attorney's fee award because the attorney who performed the services did not personally testify to support the award, and remanding for a new trial limited to the issue of attorney's fees); In re: Estate of Lopez, 410 So.2d 618 (Fla. 4th DCA 1982) (reversing orders awarding attorney's fee and...