Opinion
No. 2D21-487
08-05-2022
J. Carlton MITCHELL, Esq., Appellant, v. Michael Todd FLATT, Appellee.
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.
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. 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.
The propriety of excluding the expert affidavit as hearsay is not in dispute in this appeal and is only relevant to the extent that there is nothing in the record to indicate that this affidavit was introduced such that it could have, properly or otherwise, provided an evidentiary basis to support a finding of reasonableness as an alternative to the expert's 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. "[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 , 338 So.3d 831 (Fla. 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:
Contrary to the dissent's view that the majority has gone astray from the issues briefed, the parties argued the scope of remand in their briefs and at oral argument using the same record facts upon which we rely. We also note additional concessions on related facts made by attorney Carey at oral argument. While attorney Mitchell does not cite to Cottman v. Cottman , 418 So. 2d 1241 (Fla. 4th DCA 1982), which we consider below and find to be more persuasive within the specific context of fee-order reversals and these particular facts, his citation to Tracey constitutes sufficient briefing of this matter and in no way diminishes our conclusion that the scope of remand is an issue we must decide in light of the necessary reversal. Cf. Polyglycoat Corp. v. Hirsch Distribs., Inc. , 442 So. 2d 958, 960 (Fla. 4th DCA 1983) ("It is the duty of counsel to prepare appellate briefs so as to acquaint the Court with the material facts, the points of law involved, and the legal arguments supporting the positions of the respective parties. When points, positions, facts and supporting authorities are omitted from the brief, a court is entitled to believe that such are waived, abandoned, or deemed by counsel to be unworthy."). Moreover, we can hardly fault attorney Mitchell for failing to raise an issue in his answer brief that did not unfold until oral argument.
[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").
Although the dissent refers to these purported exceptions as the general rule, the only portion of Rodriguez that references something as a general rule is its recognition that cases devoid of competent substantial evidence are generally not remanded for a second evidentiary hearing. 720 So. 2d at 268.
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. 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.
Whether these cases truly recognize a formal, articulable exception—or whether these cases merely represent instances of deviation from the generally articulated rule based upon factual and procedural distinctions together with a lack of careful consideration of the remand language used in these opinions—is a legitimate question, as is the companion question of whether the mere existence of evidence on the record going to the amount of fees and hours actually expended should be enough to require remand when there is no evidence presented which could be applied independently to the question of whether that time and amount was reasonable. Cf. Spencer v. Ditech Fin., LLC , 242 So. 3d 1189, 1195 (Fla. 2d DCA 2018) (Salario, J., specially concurring) (recognizing a disunity in various cases involving the scope of remand in foreclosure cases and noting a need for a more deliberate examination and consistent approach when "we are making decisions about [scope of remand in foreclosure cases] based on considerations that do not bear an obvious relationship to the rule governing the consequences of a party's failure to meet its burden of proof that we apply in cases other than foreclosures and that we may not be able to limit to the foreclosure context on a principled basis" because "[s]omeday, for instance, a lawyer is going to ask that we apply the some-evidence-no-evidence rule in a garden variety contract or tort case, a result we may well consider unadvisable"). Both questions deserve consideration within a fully briefed case in a posture best suited to resolve those issues. This is, however, not that case.
The dissent discounts the majority's reliance on Cottman —as an outlier—which we should disregard. We take no issue with the fact that Cottman is a unique case with scarce application, but the facts presented to us here are equally unique and strikingly similar. Moreover, we are unaware of any legal basis which requires us to ignore its application simply because of its infrequent presentation and reliance by other courts. The fact that cases have seldomly presented district courts with the need to address such conscious decisions by counsel to proceed without admittedly necessary evidence—well-established under Florida law—says more about the credit due to most practitioners for properly exercising their duties of advocacy and candor, than about whether those cases should be applied when those duties are not met.
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, he had retained an expert to testify to the reasonableness of his fee and had an affidavit in support of that anticipated testimony. Moreover, attorney Carey's affidavit in support of the hours he claims were expended related to the discovery matter and his rate referenced the expert affidavit. Ultimately, however, the expert did not appear at the hearing.
When presented with an opportunity to continue the hearing to allow the expert to testify at a later rescheduled hearing, attorney Carey declined. Instead, attorney Carey expressly chose to proceed without that essential expert testimony. Cf. John Hancock Mut. Life Ins. v. Zalay , 522 So. 2d 944, 946 (Fla. 2d DCA 1988) ("A party cannot be penalized for good faith reliance on a trial court's ruling." (emphasis added) (citing Fla. Air Conditioners, Inc. v. Colonial Supply Co. , 390 So. 2d 174 (Fla. 5th DCA 1980) )). When the expert's affidavit was offered into evidence, attorney Mitchell objected on hearsay grounds and the expert affidavit was excluded by the trial court. Attorney Carey then attempted to testify to the reasonableness of his own fee. When attorney Mitchell argued to the trial court that expert testimony was required to support any fee award and none was presented by way of testimony or affidavit, attorney Carey responded that "there's no requirement of an Affidavit of Reasonableness by [the expert] or anybody else. [Judge] you can make that finding. I'm not sure where [attorney] Mitchell is coming up with that law, but it's flat[-]out wrong. You don't need a separate expert on this. You can make this finding." Although an affidavit is not required and cannot substitute for expert testimony, there is no doubt that expert testimony must be presented.
Although the reply brief contains an argument that there was no legal requirement to present expert testimony in support of the requested fees, at the oral argument attorney Carey conceded that he knew he was required to have an expert but that after the trial court offered its own authority to proceed without an expert, he was reluctant to correct the trial court. While we are mindful of the difficult task in apprising a trial court that its authority is misplaced, attorneys have an obligation of candor to the tribunal regarding the controlling legal authority. See R. Regulating Fla. Bar 4-3.3(a). And the transcripts from the fee hearing indicate that attorney Carey's argument against needing this expert testimony was robust and encouraged the trial court to proceed without expert testimony, belying that this was mere acquiescence to the trial court's ruling to proceed.
We recognize, as the dissent points out, that we are constrained by the issues raised by the parties, but the rules of appellate review are not so limited as to restrict us from acting on factual concessions made by parties at oral argument which are contrary to legal positions taken in the briefs. See Nesbitt v. Candler County , 945 F.3d 1355, 1357 (11th Cir. 2020) ("A party can be held to concessions and admissions its counsel made at oral argument." (citing Crowe v. Coleman , 113 F.3d 1536, 1542 (11th Cir. 1997) )). In fact, appellate courts frequently act upon parties' concessions at oral argument, which conflict with the arguments raised in their briefs. See, e.g. , Greenspoon v. Lewin , 645 So. 2d 164, 164 (Fla. 4th DCA 1994) ("The letter was irrelevant and should not have been admitted, and we would have normally reversed for a new trial because of the admission of the letter and because of the tactics defense counsel took in regard to it thereafter. At oral argument, however, her counsel announced that in the event we affirmed the issue involving whether the defendants' offer of judgment was untimely, she would be satisfied with the amount the jury awarded and did not want to go through a new trial."); Nichols v. Rinker Materials Corp. , 593 So. 2d 1228, 1228 (Fla. 1st DCA 1992) ("The employer/carrier conceded [a point related to remand] at oral argument .... We reverse and remand on these issues, but affirm the order of the JCC in all other respects."); Bystrom v. Fla. Rock Indus. , 468 So. 2d 1087, 1087 (Fla. 3d DCA 1985) ("Counsel for the appellant conceded [a point related to the scope of the res judicata effect of a prior opinion in the case] at oral argument .... With that concession, the judgment entered pursuant to our mandate is affirmed."). Therefore, attorney Carey's concessions here will not fall on deaf ears.
The dissent argues we should apply our holding in Snow , which reversed the trial court's order awarding attorneys' fees because there was no expert evidence presented as to the reasonableness of the time expended and rate charged and remand for another evidentiary hearing, allowing for the presentation of the required expert testimony. Contrary to the dissent's assertion, Snow is not on all fours with this case. In Snow , the defendant, Harlan Bakeries, moved for fees as the prevailing party at both the trial and appellate levels. Snow , 932 So. 2d at 412. At the evidentiary hearing to determine the amount of fees, Harlan Bakeries' attorneys presented their attorneys' fees evidence by way of affidavits from the trial and appellate attorneys, which attached their relevant invoices. These affidavits averred that the fees were reasonable. Id. Snow waived any objections to the use of affidavits but objected to an award of fees without the presentation of an expert fee witness to testify as to the reasonableness of the attorneys' fees—and even offered to allow Harlan Bakeries a continuance to obtain an expert. Id . at 412 n.4. In response, Harlan Bakeries' trial counsel advised the court that it did not believe a fee expert was required and appellate counsel incorrectly argued that Snow had waived the requirement before the hearing. Id. Snow argued he had not waived this requirement. Harlan Bakeries never attempted to introduce any evidence other than its own attorneys' statements and records, and Snow is silent on how or why the trial court overruled Snow's objections to the lack of expert testimony on reasonableness or any possible finding that he had waived that requirement.
But the facts in our case are different from those in Snow . In Snow , the attorneys for Harlan Bakeries failed to obtain and present the required expert testimony because they believed Snow had waived this requirement when he agreed to allow affidavits to be presented. Id . Here, however, an expert was retained to appear at the hearing but had a last-minute conflict and attorney Carey admitted to this court at oral argument that he, in fact, was fully aware of the expert fee witness requirement. In other words, attorney Carey's affirmative decision to proceed without an expert despite his clear knowledge of the evidentiary requirement is different from a case like Snow , where the parties failed to obtain and present the expert testimony because they either did not believe it was necessary or mistakenly believed that the other party had somehow waived its right to challenge that evidentiary failure. See id .
We note that the proceedings below were conducted via Zoom.
In this case, attorney Carey was fully aware of the legal insufficiency of the proof introduced but made a strategic decision to forego a continuance and proceed without an essential witness. This led him down a slippery path that he knew went against the well-established case law requiring expert testimony. See Cottman , 418 So. 2d at 1242–43 ("Because the attorney was fully aware of his obligations [to present expert testimony as to the reasonableness of his fees] and failed to meet them, we reverse the part of the final judgment awarding him a fee without remand for further hearing."); see also Morton's of Chicago, Inc. v. Lira , 48 So. 3d 76, 80 (Fla. 1st DCA 2010) ("[W]here the party with the burden of proof fails to establish an evidentiary basis for the damages awarded at trial, the general rule applies and (absent an exceptional legal or factual basis warranting a contrary result) simple reversal is warranted."); Evans v. Delro Indus. , 509 So. 2d 1262, 1264 (Fla. 1st DCA 1987) (reversal and remand for entry of judgment against plaintiff was warranted where plaintiff despite being granted the opportunity to offer additional evidence to correct the legal insufficiency of its proof, chose to proceed without the essential evidence).
To now allow remand solely for the purpose of presenting this exact expert testimony—which attorney Carey touted was not required—impermissibly grants a "second bite at the apple." See Loiaconi v. Gulf Stream Seafood, Inc. , 830 So. 2d 908, 910 (Fla. 2d DCA 2002) (rejecting appellee's argument that it should be entitled to a second opportunity to correct its proof deficiency on remand where appellee "is not entitled to the proverbial 'second bite at the apple’ "); Chaudhry v. Adventist Health Sys. Sunbelt, Inc. , 305 So. 3d 809, 819 (Fla. 5th DCA 2020) ("Having failed during the first trial to introduce competent substantial evidence that he suffered a loss of future earning capacity, Dr. Chaudhry will not be given another opportunity to prove that aspect of his case on retrial, as to do so would be to permit the impermissible second bite at the apple."). Therefore, because attorney Carey conceded at oral argument that he knew it was his obligation to present expert testimony establishing that the fee he was requesting was reasonable and because a conscious decision was made to forego any continuance and instead proceed without that very evidence, we reverse that portion of the order awarding a fee without remand for further hearing.
Affirmed in part and reversed in part.
BLACK, J., Concurs.
LABRIT, J., Concurs in part and dissents in part with opinion.
LABRIT, Judge, Concurring in part and dissenting in part.
I fully concur in the decision to affirm the order determining that Mr. Flatt is entitled to recover sanctions from Mr. Mitchell pursuant to Florida Rule of Civil Procedure 1.380(d). I dissent from the decision to reverse the attorneys' fee portion of the sanctions award without remand for an evidentiary hearing.
Mr. Mitchell argues on appeal that remand is unwarranted because Mr. Flatt's counsel (Mr. Carey) did not introduce expert testimony as to reasonableness of the attorney's fee sought. Generally, an attorney fee award will be reversed without remand if "the record on appeal is devoid of competent substantial evidence to support the order." See Rodriguez v. Campbell , 720 So. 2d 266, 268 (Fla. 4th DCA 1998). But
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.
Id. (collecting cases); accord Snow v. Harlan Bakeries, Inc ., 932 So. 2d 411, 413 (Fla. 2d DCA 2006) ; see also Smith v. Short , 332 So. 3d 1064, 1068 (Fla. 2d DCA 2021) (remanding for evidentiary hearing on fee claim where movant submitted affidavit regarding fees and billing records but no expert testimony). As the majority acknowledges, Mr. Carey submitted his billing records (which were admitted as evidence without objection) and testified that he believed his fee was reasonable. Under such circumstances, the "general rule" announced in Rodriguez applies and requires remand—as this court clearly held in Snow and Smith . The majority relies upon Cottman v. Cottman , 418 So. 2d 1241 (Fla. 4th DCA 1982), to hold that remand is unwarranted because Mr. Carey knew he was required to submit expert testimony but failed to do so.
I note that Cottman is apparently the only Florida case that has applied a "knowing failure" exception to the general rule announced in Rodriguez. The only cases citing Cottman are Rodriguez (which identified Cottman as the lone "case in which this court strayed from the general rule" and didn't apply the "knowing failure" exception articulated in Cottman , see Rodriguez , 720 So. 2d at 268 ) and three other district court of appeal cases that cited Cottman for the proposition that expert testimony is necessary to support a fee award, and remanded for further proceedings to determine a reasonable fee amount with the benefit of sufficient expert testimony. In other words, Cottman is an outlier and has not been followed by any district court in Florida.
In my view, the majority has gone astray for three reasons. As a threshold and dispositive matter, Cottman was neither briefed nor argued, and Mr. Mitchell did not argue on appeal that Mr. Carey's "knowing failure" to submit expert testimony precluded remand. Instead, Mr. Mitchell principally challenged entitlement; he secondarily argued in a generalized manner that Mr. Flatt should not get a "second bite at the apple" to substantiate his fee claim, relying exclusively on case law outside the attorney's fee context. Appellate courts "are not at liberty to address issues that were not raised by the parties," Anheuser-Busch Cos. v. Staples , 125 So. 3d 309, 312 (Fla. 1st DCA 2013), nor may an appellate court "depart from its dispassionate role and become an advocate by second guessing counsel and advancing for him theories and defenses which counsel either intentionally or unintentionally has chosen not to mention," Polyglycoat Corp. v. Hirsch Distributors, Inc. , 442 So. 2d 958, 960 (Fla. 4th DCA 1983). The majority has done both.
Mr. Mitchell cited Tracey v. Wells Fargo Bank, N.A. , 264 So. 3d 1152 (Fla. 2d DCA 2019), a mortgage foreclosure case in which a divided panel of this court held that the mortgagee was not entitled to a new trial after it failed to plead and prove a key element of its claim; he also relied upon Morton's of Chicago, Inc. v. Lira , 48 So. 3d 76 (Fla. 1st DCA 2010), a worker's compensation case in which the majority remanded for further proceedings to determine the claimant's entitlement to certain medical expenses. While these decisions and others like them are similar in some respects to attorney's fee claims, a meaningful body of Florida law specific to attorney's fee claims instructs when remand is appropriate on such claims. That is the law that applies here, and the law of this district requires remand where the fee-seeking party introduces evidence of rates and hours but fails to introduce expert evidence of reasonableness. See Snow , 932 So. 2d at 413 ; Smith , 332 So. 3d at 1068.
Equally troubling is that the majority bases its decision on what amounts to an extra-record fact—the "concession" Mr. Carey made at oral argument concerning his knowledge that expert testimony was required. It is true that Mr. Carey may have conceded a breach of his duty of candor to the tribunal, but that point was not part of Mr. Mitchell's argument on appeal in any way, shape, or form. The only reason the majority can rely on this concession is that oral argument was held in this case; if this case had been decided on the briefs, it is difficult to imagine any outcome other than a remand pursuant to Snow . Mr. Carey's concession at oral argument may support a referral to the Florida Bar, but in my view it does not support denial of remand on this record or under the precedent of this district.
This court has addressed—and rejected—a key element of the majority's decision. Specifically, the majority's decision is driven at least in part by its frustration with Mr. Carey's argument that no expert was required to substantiate reasonableness of the fee award. Just as Mr. Carey did here, the movant's counsel in Snow argued that he didn't "believe a fee expert is required." See Snow , 932 So. 2d at 412 n.4. We remanded for an evidentiary hearing because—just as Mr. Carey did here—the movant's attorneys in Snow submitted evidence of rates and hours and testified to the reasonableness of the claimed fees, but presented no expert testimony concerning reasonableness. Id. at 412–13. Snow is on all fours with this case. And by skirting its holding, the majority disregards the fundamental maxim that a three-judge panel of a district court is constrained to follow a prior panel's ruling on an identical point of law. See In re Rule 9.331, Determination of Causes by a Dist. Court of Appeal En Banc, Fla. Rules of App. Proc. , 416 So. 2d 1127, 1128 (Fla. 1982) ; see also Wood v. Fraser , 677 So. 2d 15, 18 (Fla. 2d DCA 1996) (recognizing that "consistent with the longstanding policy of this court," a three-judge panel cannot recede from a prior panel decision absent en banc consideration by the full court).
This point undercuts the majority's reliance on Cottman . Either Mr. Carey relied on his argument (which the trial court accepted) that—under the circumstances of this case—expert testimony was unnecessary (as happened in Snow ) or Mr. Carey unequivocally knew that expert testimony was required, "promised" to submit it, and nonetheless elected to proceed without it (as happened in Cottman ). The two scenarios cannot coexist. In my view, this record more closely aligns with the former scenario; for that reason, I believe Cottman is inapposite.
The majority claims Snow is distinguishable, stating that Harlan's "attorneys failed to obtain and present the required expert testimony because they believed Snow had waived this requirement." While it appears that Harlan may have unsuccessfully argued on appeal that Snow failed to preserve argument on the expert testimony requirement, nothing in Snow suggests that Harlan's attorneys didn't introduce expert evidence because they believed Snow had waived that requirement in the trial court. The operative fact in Snow is that—just as Mr. Flatt's counsel did here—Harlan's counsel argued that he didn't "believe a fee expert is required." Snow , 932 So. 2d at 412 n.4.
Lastly, it is important to remember what this case is about. As we unanimously agree, the trial court properly concluded that Mr. Flatt was entitled to recover attorney's fees as a sanction after Mr. Mitchell flouted rule 1.380(d). To recap the salient background, Mr. Mitchell filed a nonmeritorious motion to disqualify Mr. Carey four days before Mr. Carey was scheduled to take the deposition of Mr. Mitchell's client. Relying on the pending disqualification motion, Mr. Mitchell simultaneously filed a motion for protective order and advised his client not to attend the deposition, counting on the likelihood that it would be impossible to get a ruling on the motion for protective order before the deposition date. As a result of Mr. Mitchell's improper tactics, Mr. Flatt incurred unnecessary attorney's fees and the trial court correctly imposed sanctions pursuant to rule 1.380(d). Absent a fee award as authorized by rule 1.380(d), Mr. Flatt is left holding the proverbial bag on those fees.
By depriving Mr. Flatt of the opportunity to recover the fees he incurred because of Mr. Mitchell's improper tactics, the majority not only renders the imposition of sanctions largely meaningless, it also rewards Mr. Mitchell's improper conduct—which is truly ironic, since that is what started this fire. Under these circumstances, punishing Mr. Flatt for what arguably was a shortcoming in Mr. Carey's conduct is inconsistent with the obvious purpose of the sanctions provision of rule 1.380(d) —to deter attorneys from doing exactly what Mr. Mitchell did here.
Nothing in our record suggests even the possibility that Mr. Flatt was aware of, never mind condoned, Mr. Carey's statements and actions at the fee hearing.
For the foregoing reasons, I dissent from the majority's denial of remand. I would affirm the order entitling Mr. Flatt to sanctions, reverse the portion of the order awarding fees, and remand this case for an evidentiary hearing to determine the amount of a reasonable attorney's fee awardable to Mr. Flatt.