MICHAEL GLENN WILEY, APPELLANT,
v.
SHARLENE MARIE WILEY, APPELLEE
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In a divorce appeal, the Florida Fifth District Court of Appeal reversed the trial court's award of attorney's fees due to insufficient testimony regarding hours worked, and reversed the trial court's reservation of jurisdiction to appoint a property sale commissioner, while affirming other aspects of the dissolution judgment.
The attorney's fee award was reversed because there was no competent evidence detailing services performed by the wife's actual attorney, depriving the husband of the opportunity to challenge the reasonableness of hours worked. The reservation of jurisdiction to appoint a property sale commissioner was reversed because the right to partition exists by law and neither party requested such relief in the judgment.
[1] An award of attorney's fees requires competent evidence detailing the services performed by the attorney seeking the fees.
[2] A party is denied the opportunity to challenge the reasonableness of hours claimed by an attorney when that attorney does not testify or submit an affidavit.
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Join FLexlaw to unlock all legal intelligence“Since there was no competent evidence detailing services performed by Wells, the award of attorney's fees is reversed and the cause remanded for a hearing on this issue.”
Establishes the holding that attorney's fees must be reversed when the actual attorney providing services does not testify or submit an affidavit regarding work performed.
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Join FLexlaw to unlock all legal intelligenceMichael and Sharlene Wiley divorced. The trial court awarded attorney's fees to the wife's counsel, with attorney Garrett Briggs testifying that he ha…
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UPCHURCH, Judge.
Michael Wiley appeals from a final judgment dissolving his marriage to Sharlene Wiley. The husband raises several points on appeal, two of which have merit.
First, the husband contends that it was error to award fees because the wife’s attorney did not personally testify as to his services. At trial, attorney Garrett Briggs testified that he had reviewed the wife’s case file and concluded that $3,000 to $3,500 was a reasonable fee considering the legal issues involved. Briggs also testified that Jerry Wells, the attorney for the wife, told him that he (Wells) had spent between thirty-five and sixty hours on the case. Wells, however, did not testify nor did he submit an affidavit regarding his legal services in this case. Although the husband could challenge Briggs’ assessment of the case, he was denied the opportunity to challenge the reasonableness of the number of hours allegedly spent by Wells. Since there was no competent evidence detailing services performed by Wells, the award of attorney’s fees is reversed and the cause remanded for a hearing on this issue. Jacobsen v. Jacobsen, 414 So. 2d 34 (Fla. 5th DCA 1982); Cohen v. Cohen, 400 So. 2d 463 (Fla. 4th DCA 1981).
Secondly the husband contends that the trial court erred in reserving jurisdiction to appoint a commissioner for the sale of the parties’ property in the event they are unable to agree to an appropriate disposition of that property.
The final judgment provided that the husband and wife were entitled to a one-half interest in the marital residence, commercial real estate and personal property. Thus, either party, as a tenant in common, has a right to partition. That right, however, exists by virtue of law (chapter 64, Florida Statutes) and not because of the final judgment. Smith v. Smith, 464 So. 2d 1287 (Fla. 5th DCA 1985). Neither party specifically asked for partition; therefore, we reverse the retention of jurisdiction by the trial court to appoint a commissioner. As to the other points raised by the husband, we find no error and affirm.
AFFIRMED in part; REVERSED in part and REMANDED.
COBB, C.J., and COWART, J., concur.
UPCHURCH, Judge.
In this court’s opinion entered January 16, 1986, we reversed an award of attorney’s fees because there was no competent evidence detailing the services performed by the wife’s attorney and we remanded for a hearing.
We grant rehearing and modify the decision by eliminating the remand for rehearing on the issue of attorney’s fees. Having failed to prove her entitlement to fees in the lower court, the wife is not entitled to a second hearing. See Stewart v. Hughes Supply, Inc., 440 So. 2d 476 (Fla. 5th DCA 1983).
COBB, C.J., and COWART, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Warner v. Warner, 692 So. 2d 266 (Fla. 5th DCA 1997)…e remand is appropriate where the record may contain substantial competent evidence to support findings as to the Rowe factors, reversal is required where the record is devoid of any evidence to support the award of attorney’s fees); Wiley v. Wiley, 485 So. 2d 2 (Fla. 5th DCA 1986) (holding that because the wife failed to present any evidence as to the legal services performed in the trial court, the wife was not entitled to a second hearing to establish attorney’s fees); see also Broyles v. Broyles, 573 So…
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Saussy v. Saussy, 560 So. 2d 1385 (Fla. 2d DCA 1990)…rd, there must be the following: (1) evidence detailing the services performed and (2) expert testimony as to the reasonableness of the fee. Nivens v. Nivens, 312 So. 2d 201 (Fla. 2d DCA 1975). The trial court, relying on the case of Wiley v. Wiley, 485 So. 2d 2 (Fla. 5th DCA 1986), ruled that the wife could not be compensated for fees incurred by any attorney who did not personally testify. We believe the trial judge misread Wiley. In Wiley the wife presented no evidence as to the services performed, and t…
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Powell v. Barnes, 629 So. 2d 185 (Fla. 5th DCA 1993)…iary hearing on costs, the plaintiffs are not entitled to a second bite at the apple. Florida Ventilated Aiming Company v. Dickson, 67 So. 2d 215 (Fla.1953); Florida Power and Light v. Flichtbeil, 513 So. 2d 1078 (Fla. 5th DCA 1987); Wiley v. Wiley, 485 So. 2d 2 (Fla. 5th DCA 1986); Van Der Noord v. Katz, 481 So. 2d 1228 (Fla. 5th DCA 1985). REVERSED AND REMANDED FOR ENTRY OF AN APPROPRIATE COST JUDGMENT. DAUKSCH, J., concurs. GRIFFIN, J., concurs in part, dissents in part, with opinion.…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jules J. Cohen v. Rosalyn L. Cohen, 400 So. 2d 463 (Fla. 4th DCA 1981)
- Smith v. Smith, 464 So. 2d 1287 (Fla. 5th DCA 1985)
- Jacobsen v. Jacobsen, 414 So. 2d 34 (Fla. 5th DCA 1982)
- Stewart v. Hughes Supply, Inc., 440 So. 2d 476 (Fla. 5th DCA 1983)
- Smith v. State, 440 So. 2d 476 (Fla. 5th DCA 1983)