Opinion
No. 94-4147.
November 3, 1995.
An Appeal from the Circuit Court for Leon County; L. Ralph Smith, Jr., Judge.
Gary A. Chernay of Cohen, Chernay, Norris, Weinberger Harris, P.A., North Palm Beach; Woodie H. Thomas, III, West Palm Beach, for Appellant.
John P. Booth, Assistant General Counsel, Florida Department of Law Enforcement, Tallahassee, for Appellee.
Because it appears that the trial judge neither admitted nor considered the deposition testimony of appellant's expert witness, Frank Kreidler, in the attorney-fee proceeding below, we reverse his decision authorizing a fee of $7,500 for appellant's attorneys. On remand, the trial court shall admit and consider the deposition, make any additional required findings for attorney's fees and fix the fee allowed for appellant's attorneys. In re Estate of Bousfield, 598 So.2d 1083 (Fla. 4th DCA 1992). In remanding, we wish to emphasize that it is not our intention to direct the trial court to increase the amount of the fee once it has considered the deposition. The court retains the discretion to adopt its previous award or to set a new amount of attorney's fees based on all the evidence.
We affirm the remaining issues raised in the appeal and cross-appeal.
AFFIRMED in part, REVERSED in part and REMANDED for further proceedings.
ERVIN, LAWRENCE and VAN NORTWICK, JJ., concur.