Opinion
No. 2D21-1332
05-10-2023
WELLS FARGO BANK, N.A., as trustee for Banc of America Funding Corporation Mortgage Pass-Through Certificates Series 2007-5, Appellant, v. Stephen L. MEININGER, as Chapter 7 trustee of the Bankruptcy Estate of Stay In My Home, P.A. f/k/a Stopa Law Firm, P.A., Appellee.
David Y. Rosenberg of Robertson, Anschutz, Schneid, Crane & Partners, PLLC, Boca Raton, for Appellant. Michael A. Friedman, Lisa M. Castellano, and Patrick Kalbac of Genovese Joblove & Battista, P.A., Tampa, for Appellee.
David Y. Rosenberg of Robertson, Anschutz, Schneid, Crane & Partners, PLLC, Boca Raton, for Appellant.
Michael A. Friedman, Lisa M. Castellano, and Patrick Kalbac of Genovese Joblove & Battista, P.A., Tampa, for Appellee.
SMITH, Judge.
Wells Fargo Bank, N.A., appeals the lower court's order awarding prevailing party attorneys’ fees to Stephen L. Meininger (Trustee), as bankruptcy trustee of the Stopa Law Firm, P.A. (Stopa), for attorney services performed by Stopa on behalf of a client in an underlying foreclosure action. The trial court erred in awarding attorneys’ fees. We reverse based upon the complete absence of competent substantial evidence. The Trustee, on behalf of the Stopa bankruptcy estate, seeks to recover attorneys’ fees arising out of a case tried before Stopa's bankruptcy filing, in which Stopa successfully defended a client at trial against foreclosure. Prior to the bankruptcy, on January 15, 2018, Stopa filed a motion to tax attorneys’ fees in the foreclosure action seeking $17,000. The motion set forth the hours of attorney time and hourly rate charged. Stopa filed its bankruptcy petition on October 2, 2018. On March 4, 2020, the Trustee filed a Notice of Filing and Asserting Charging Lien for the attorneys’ fees in the foreclosure case. Wells Fargo opposed the charging lien, arguing laches and waiver. After hearings on the issue, the trial court determined that the Trustee had an interest in the attorneys’ fees to be awarded the client in the underlying foreclosure action and that it was entitled to attorneys’ fees. The trial court scheduled an evidentiary hearing to determine the reasonableness of the attorneys’ fees sought.
Stopa filed bankruptcy following the suspension of its main partner Mark Stopa. Mr. Stopa was later disbarred by the Florida Bar. See Florida Bar v. Stopa, Nos. SC16-1727, SC17-1428 & SC18-1197, 2019 WL 4696047 (Fla. Sept. 26, 2019).
The motion was not verified or supported by an affidavit nor were the time records or billing records attached to the motion.
At the April 6, 2021, evidentiary hearing, the Trustee's attorney fee expert testified as to the lodestar factors under Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), and the rules regulating the Florida Bar. The Trustee's fee expert had to reconstruct the time for three Stopa attorneys who worked on the case based upon the docket filings because the Trustee was unable to locate Stopa's billings or time records. None of the three Stopa attorneys testified at the hearing. Because of the inability to review the file, the fee expert could not discern which attorneys attended hearings or prepared the filings. Nor was the fee expert able to review the retainer agreement between Stopa and the client. In fact, the fee expert did not know whether Stopa had charged the client a flat or an hourly fee. The Trustee requested that the trial court judicially notice Wells Fargo's attorneys’ fee affidavit from the underlying foreclosure case, which sought $17,000 in attorneys’ fees for approximately 80 hours of time at an hourly rate of $215 to 225 for taking the case to trial. Wells Fargo's fee expert testified that 16.75 hours was a reasonable amount of time and that $300 per hour was a reasonable rate for the work performed in the foreclosure action. On this record, and over the objection of Wells Fargo, the trial court determined that competent substantial evidence existed to support an award of attorneys’ fees to the Trustee in the amount of $17,000 based upon 42.5 hours at an hourly rate of $400.
"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.’ ’’ Mitchell v. Flatt , 344 So. 3d 588, 592 (Fla. 2d DCA 2022) (quoting Cooper v. Cooper , 406 So. 2d 1223, 1224 (Fla. 4th DCA 1981) ); see also Pridgen v. Agoado , 901 So. 2d 961, 962 (Fla. 2d DCA 2005) (reversing fee award where the record was "devoid of any expert testimony or even the testimony of the attorney who performed the services").
The Trustee cites to two cases in support of its position that the evidence in this case, which consisted only of expert testimony and included no testimony from the attorneys performing services or their contemporaneous billing records, is sufficient to support a fee award. We are not persuaded. In Glades, Inc. v. Glades Country Club Apartments Ass'n, 534 So. 2d 723, 723 (Fla. 2d DCA 1988), this court stated that "evidence sufficient to support a finding of the number of hours reasonably expended by an attorney need not necessarily include specific, written time records." But in Glades , the attorney performing the services testified to his hours expended and an expert testified as to reasonableness. Id. at 724. And in Nants v. Griffin , 783 So. 2d 363, 366 (Fla. 5th DCA 2001), the court stated that "the attorney performing the work is not required to testify when there is competent evidence filed in support of the motion or introduced at the hearing detailing the services performed." But in Nants , the attorney who performed the services, before withdrawing from the case, submitted an affidavit and attached timesheets and detailed billing statements that were authenticated as business records by his supervising attorney, who also reviewed the records and testified to reasonableness, as did an expert. Id. at 364, 366. Therefore, in each of the cases relied upon by the Trustee there was some competent evidence as to the attorneys’ services performed. Here, we have nothing. See, e.g. , Trumbull Ins. Co. v. Wolentarski , 2 So. 3d 1050, 1056 (Fla. 3d DCA 2009) (stating that expert's reconstruction of attorney time based on "what he believed to be the amount of time counsel must have spent on telephone conversations and other matters not documented in his files" was "not fact based opinion" but "pure speculation" and had "no factual support in the record and [was], therefore, of no evidentiary value whatsoever") (disapproved on other grounds , Kopel v. Kopel , 229 So. 3d 812, 815-20 (Fla. 2017) ).
Accordingly, in the complete absence of any competent evidence as to the services performed by Stopa, it was error to award attorneys’ fees to the Trustee based solely upon the fee expert's testimony recreating Stopa's records. In light of the reversal, we elect to not comment on the remaining issues.
Reversed.
VILLANTI, J., concurs.
KELLY, J., concurs in results only.