Opinion
No. 3D19-1404
04-08-2020
LAW OFFICES OF GRANOFF & KESSLER, P.A., Appellant, v. Richard Randal GLASS, et al., Appellees.
Law Offices of Granoff & Kessler, P.A., and Roy E. Granoff, Miami, for appellant. Mark Goldstein, for appellees.
Law Offices of Granoff & Kessler, P.A., and Roy E. Granoff, Miami, for appellant.
Mark Goldstein, for appellees.
Before SALTER, SCALES and LOBREE, JJ.
SALTER, J.
The Law Offices of Granoff & Kessler, P.A. ("Law Offices"), appeal a final judgment denying Law Offices’ claim for allegedly-unpaid legal fees against its former client, Richard Randal Glass ("Mr. Glass"). The legal basis for the denial of attorney's fees was Law Offices’ failure to present independent expert testimony regarding the value of the legal services allegedly rendered.
We reverse, joining two of our sibling District Courts in recognizing that an attorney's claim for breach of contract against his or her own client does not require such expert testimony. We distinguish this and similar cases from clear and well-established precedent pertaining to motions for attorney's fees claimed against an opposing party.
Background and Procedural History
Mr. Glass retained Law Offices in a detailed, three-page written fee agreement captioned "Law Offices of Granoff & Kessler, P.A. Fee Agreement and Office Policy in Dissolution of Marriage Proceeding" (the "Fee Agreement"). Mr. Glass thereby obtained representation in a dissolution of marriage proceeding commenced against him in 2011 by his now-former wife. The Fee Agreement specified the initial retainer amount, and the hourly rates for out-of-court services ($325.00 per hour) and in-court time ($375.00 per hour). The dissolution case included Mr. Glass’ counter-petition and protracted issues regarding the shared parental responsibility for the spouses’ three minor children. The final hearings in the dissolution case took place over six days, and the final judgment was issued in February of 2014.
The record evidences payment by Mr. Glass in accordance with the Fee Agreement and monthly invoices for the majority of Law Offices’ billings. After the dissolution case had concluded, however, Mr. Glass refused to pay a remaining balance of $34,345.20. Law Offices ultimately sued him for this amount (and prejudgment interest) in 2018.
Law Offices’ amended complaint included counts for breach of contract, open account, and quantum meruit. Only the breach of contract claim remained at the time of the non-jury trial. Mr. Glass counterclaimed for breach of contract and legal malpractice.
The counterclaim was tried as a legal malpractice claim and found to be "without merit" by the trial court. Mr. Glass did not cross-appeal the trial court's findings on that issue.
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At trial in 2019, Law Offices presented the testimony of Roy Granoff, the attorney who represented Mr. Glass in the dissolution proceedings. The Fee Agreement and invoices were admitted into evidence. Law Offices did not present expert testimony by an unaffiliated attorney regarding the reasonableness of the fees or value of the legal services rendered.
The trial court's final judgment denied Law Offices’ claim for fees, concluding that "without expert testimony to establish the reasonableness of the fees, this court cannot award same." The trial court rejected Mr. Glass’ counterclaim alleging legal malpractice by Law Offices. This appeal by Law Offices followed.
Analysis
Our review is de novo, as the issue on appeal is purely a matter of law. Musi v. Credo, LLC, 273 So. 3d 93, 95-96 (Fla. 3d DCA 2019). The final judgment cites four Florida appellate cases in support of its determination that an award of attorney's fees must include not only testimony by the attorney performing services, but also by an expert as to the value of those services. The trial court did not accept Law Offices’ argument that corroboration via expert testimony is not required when legal fees are sought by an attorney as breach of contract damages payable by the attorney's client (or former client), rather than as a motion seeking fees payable by an adverse party.
The difference between these two categories of attorney's fee awards is recognized, however, in Florida. We first address the four cases cited by the trial court in the final judgment. We then consider the decisions by two other District Courts—opinions we consider persuasive and a basis for reversal here. We further note the absence of a definitive prior decision by our own Court regarding this category of attorney's fee claims.
The Cases Cited in the Final Judgment
The final judgment relied first upon Snow v. Harlan Bakeries, Inc., 932 So. 2d 411 (Fla. 2d DCA 2006). In that case, Ms. Snow appealed a trial court order awarding Harlan Bakeries over $98,000.00 in trial and appellate fees and costs after Harlan Bakeries prevailed regarding Ms. Snow's personal injury claims. The trial court made the award despite the fact that Harlan Bakeries failed to provide expert testimony regarding the reasonableness of the attorney's fees sought. The Second District reversed and remanded, "[b]ecause the trial court determined the amount of attorney's fees without expert testimony ...." Id. at 413.
Importantly, the case involves an award of attorney's fees sought by a prevailing party against an opposing party—not fees sought as contract damages by an attorney suing his own client for non-payment. In a footnote, the opinion in Snow discussed criticism of the expert witness requirement, though "currently mandated by case law," by the Fourth District in Island Hoppers, Ltd. v. Keith, 820 So. 2d 967, 972 (Fla. 4th DCA 2002), and a Florida Bar Journal article questioning the requirement. Snow, 932 So. 2d at 412 n.2.
The final judgment in the present case next cited Ghannam v. Shelnutt, P.A., 199 So. 3d 295 (Fla. 5th DCA 2016). Ghannam was pro se in the appeal, but a former client of Shelnutt, P.A., a law firm. The law firm sought to recover payment of fees unpaid by both Ghannam and a corporation allegedly controlled by Ghannam. The corporation had not been named a party to the law firm's fee collection claim, and the record indicates that the damages sought were a "reasonable fee" rather than a fee based on agreed hourly amounts and regular invoices for time expended. Ghannam was decided by three judges of the Second District, sitting by designation as the Fifth District, and the panel observed that the Second District "does not make a distinction between whether the attorney fees are sought in the underlying action or from a third party in a breach of contract action." Id. at 300 n.2. The panel cited, quoted, and followed the previously discussed Second District opinion in Snow.
The third case cited by the trial court in the final judgment under review is another Second District opinion, Yakubik v. Board of County Commissioners of Lee County, 656 So. 2d 591 (Fla. 2d DCA 1995). In that short opinion, it is apparent the Board of County Commissioners had moved for an award of attorney's fees against Yakubik, an adverse party. The attorney for the Board presented an affidavit regarding his claimed fees, and Yakubik successfully appealed the resulting trial court award based on the Board's failure to provide independent expert testimony.
The fourth and final case cited on this issue in the final judgment before us is Robin Roshkind, P.A. v. Machiela, 45 So. 3d 480 (Fla. 4th DCA 2010). Although that case included a broad statement that the testimony of an independent expert is required to establish the reasonableness of attorney's fees payable by a former client, the Fourth District has repeatedly followed a different rule when a client is sued for unpaid fees as damages for breach of a fee agreement between the attorney and the client. In Roshkind, the Fourth District mentioned that different rule, but determined that it did not apply to the record before it.
In the present case, the trial court did not cite or apply any opinion of this Court. As discussed further below, that is because this Court has not previously addressed this specific category of claim and the types of competent, substantial evidence required to prove such a claim.
No Expert Testimony Required: The Sea World Case
In 2010, the Fifth District articulated a distinction for breach of contract damages by an attorney against a former client. In Sea World of Florida, Inc. v. Ace American Insurance Companies, 28 So. 3d 158, 160 (Fla. 5th DCA 2010), the Fifth District explained the basis for such a distinction:
[I]f a claimant is seeking to recover, as damages, fees paid to a physician, engineer, architect, or other professional,
there is no requirement to present "corroborating" testimony from an independent expert. Indeed, our supreme court has held that there is no requirement for expert testimony (independent or otherwise) to support an award of physician's fees where the doctor's bill and the plaintiff's testimony made it a question for the jury to determine whether the bills represented reasonable and necessary medical expenses. Garrett v. Morris, Kirschman & Co., Inc., 336 So. 2d 566, 571 (Fla. 1976) ; see also East West Karate Ass'n Inc. v. Riquelme, 638 So. 2d 604 (Fla. 4th DCA 1994) (although plaintiff had burden at trial to prove reasonableness and necessity of medical expenses, expert testimony not required). We see no reason to impose a higher standard of proof simply because the professional fees sought to be recovered are those of an attorney.
The Fourth District discussed, but ultimately distinguished, Sea World in the Roshkind case discussed above (and relied upon by the trial court in the case at hand). The Fourth District's opinions after Roshkind have cited and relied upon the rationale in Sea World when a former attorney seeks to recover unpaid fees in a breach of contract action. Schwartz v. Bloch, 88 So. 3d 1068, 1072 (Fla. 4th DCA 2012) (" Roshkind does not require independent expert testimony to establish the reasonableness of professional fees, including attorney's fees, when those fees are an element of compensatory damages."); Valentin Rodriguez, P.A. v. Altomare, 261 So. 3d 590, 592 (Fla. 4th DCA 2018) (same).
Third District Cases
Our own decisions are distinguishable and were not cited by the trial court. The narrow issue and record before us present an issue of first impression in this Court.
In Brake v. Murphy, 736 So. 2d 745 (Fla. 3d DCA 1999), two residuary beneficiaries (parties in a probate proceeding) sought to recover attorney's fees paid to their attorney in an adversary action against a former personal representative removed for conflict of interest. The probate court awarded the beneficiaries over $388,000.00 against the removed personal representative. This Court reversed for two reasons—no independent expert testimony was provided to corroborate the claimed fees, and the hours and rates were based on "reconstructed," rather than contemporaneous, billing records. Id. at 747. ("[W]hile proof by way of contemporaneous records is not imperative, something more than wild guesses are necessary to support an award of fees based on reconstructed records.").
Mr. Glass contends that another decision of this Court, Seitlin & Co. v. Phoenix Insurance Co., 650 So. 2d 624 (Fla. 3d DCA 1994), stands for the proposition that expert testimony is necessary to support a claim for reasonable attorney's fees. We disagree. In that case, (1) an insured student sued his insurer for attorney's fees paid and incurred after the insurer wrongfully denied coverage (such that the insured and insurer were adverse regarding the claim to recover attorney's fees, and the student was not the client of the insurer), and (2) the student claimed reasonable fees, not an amount of damages computed in accordance with a written fee agreement and invoices (many of which, in the case before us, were paid pursuant to the Fee Agreement).
In both Brake and Seitlin, attorney's fees were sought against adverse parties rather than a former client. Neither case involved an attorney's claim for breach of contract against a former client under an express agreement to pay fees for legal services provided by the attorney/claimant. The Rule of Decision in This Case
As noted, the trial court found no binding decision from this Court and instead followed the decision of the Second District in Snow and the later Second District cases discussed above. On the record before us, we find that the better-reasoned rule of decision is found in the more recent Fourth District cases, Schwartz and Valentin Rodriguez, P.A., and in the Fifth District's opinion in Sea World. Those three opinions, as discussed above, focus on an attorney's breach of contract claim against a former client under the attorney-client fee agreement. In such an instance, the fees are not sought to be recovered from an adverse party who never agreed to pay them, but rather from the client who promised to do so but did not.
Corroboration by an independent expert on the stipulated rates and hours incurred is unnecessary if the attorney claiming the fees from his or her former client has testified regarding those matters and the fee contract and invoices are admitted in evidence. In the case before us, for example, Mr. Glass’ successor counsel stated at the hearing that "we do not dispute that [Law Offices’] hourly rate of $325 and $375 is reasonable." Moreover, the invoices from Law Offices were paid by Mr. Glass for most of the contentious, three-year litigation (with the final billings unpaid after Mr. Glass apparently determined that the final judgment after the non-jury trial of the dissolution action was unsatisfactory).
Conclusion and Certification of Conflict
Based on the foregoing analysis, we reverse the final judgment below and remand the case for the entry of a damages award to Law Offices consistent with the evidence presented. We certify conflict with the decision of the Second District in Snow v. Harlan Bakeries, Inc., 932 So. 2d 411 (Fla. 2d DCA 2006).
Reversed and remanded; conflict certified.