Sunday, August 2, 2009

Attorney Fees Award Reversed for New Evidentiary Hearing

In Crown Custom Homes, Inc. v. Sabatino (2D08-1612, 2D08-1613), the Second District reversed the trial court's determination of the amount of attorneys fees for a new evidentiary hearing.

During the hearing on attorney's fees the Sabatinos called an expert on legal billing to the stand. The expert testified that he was unable to apportion the Sabatinos' attorney's time sheet records to the various causes of action raised at trial because, at least in part, the counts were intertwined. The expert further stated that "unfortunately all of us tend to throw the kitchen sink at it from a cause of action standpoint; and if you can not differentiate between those, then you're entitled to claim that under—in this case, the claim of lien, the cause of action."


"[T]he party seeking fees has the burden to allocate them to the issues for which fees are awardable or to show that the issues were so intertwined that allocation is not feasible."...Here the trial court made no factual findings to support its legal conclusion that the counts were so intertwined as to make individual allocation of fees unfeasible. Additionally, the limited record before this court does not enable us to resolve that issue despite the scope of our review. Although the billing expert opined that the counts were sufficiently intertwined, "[t]he expert's opinion, lacking any factual foundation, was not competent proof." Lubkey, 857 So. 2d at 968. Therefore, on this record, we cannot sustain the fee order.


We caution that "[r]egardless of the expertise of the witness, generally, and his familiarity with legal concepts relating to his specific field of expertise, it is not the function of the expert witness to draw legal conclusions. That determination is reserved to the trial court." Palm Beach County v. Town of Palm Beach, 426 So. 2d 1063, 1070 (Fla. 4th DCA 1983).


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