DM RECORDS, INC., APPELLANT,
v.
TURNPIKE COMMERCIAL PLAZA, PHASE II, CONDOMINIUM ASSOCIATION, INC., APPELLEE

Fla. 4th DCA | 2005-01-19
No. 4D03-4978
STEVENSON and SHAHOOD, JJ., concur.
894 So. 2d 1030 Florida District Court of Appeal, Fourth District (2005)

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Synopsis

DM Records appealed an attorney's fees award imposed as a sanction, arguing that the absence of testimony from counsel performing the work requires reversal. The Florida Fourth District Court of Appeal affirmed, holding that this issue cannot be raised for the first time on appeal when no objection was made in the trial court and counsel's affidavit and expert testimony were presented.


Holding

The court held that the issue of counsel's lack of testimony cannot be raised for the first time on appeal when no objection was made in the trial court. Where an affidavit from counsel and expert testimony based on that affidavit are presented without objection, these are sufficient to support the attorney's fees judgment.


Headnotes

[1] The failure to object in the trial court to the absence of testimony from counsel performing the work for which attorney's fees are sought waives the right to raise that…

[2] An attorney's affidavit detailing work performed, coupled with expert testimony on the reasonableness of hours and rates, can constitute sufficient evidence to support an…

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Key Quotes

“we conclude that under these circumstances, where there was no objection to counsel performing the work not testifying, her affidavit and the testimony of the expert are sufficient to support the judgment”

Establishes the court's holding that an affidavit from counsel plus expert testimony supports the fee award without counsel's personal testimony when no trial court objection was made.

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Facts & Procedural History

Turnpike's counsel did not testify at the fee hearing but filed an affidavit detailing her work performed. An expert reviewed the affidavit and testif…

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Opinion of the Court
KLEIN, J.

KLEIN, J.

Appellant DM Records, Inc. raises several issues involving an award of attorney’s fees imposed as a sanction, but we affirm, addressing only whether the lack of testimony of counsel performing the work can be raised for the first time on appeal. We hold that it cannot.

At the hearing, Turnpike’s counsel did not testify, but she had filed an affidavit reflecting the work she had performed. Her expert reviewed the affidavit and tes tified that her hours and hourly rate were reasonable. In addition, DM stipulated that the hourly rate was reasonable. After Turnpike rested its case, DM advised the court that it had no witnesses or closing argument. No objection was raised that Turnpike’s counsel did not testify. DM now argues that the absence of counsel’s testimony requires us to reverse for lack of substantial competent evidence.

DM relies on cases in which we have reversed attorney’s fee awards because the attorney performing the services had not testified. Rakusin v. Christiansen & Jacknin, P.A., 863 So. 2d 442 (Fla. 4th DCA 2003); Tutor Time Merger Corp. v. MeCabe, 763 So. 2d 505 (Fla. 4th DCA 2000). Turnpike argues that DM, by failing to raise this issue in the trial court, has waived it. In Rakusin and Tutor Time we did not address whether there had been an objection in the trial court, and accordingly we do not agree with DM that those cases require us to reverse under the circumstances in this case.

We recognize that in a non-jury case the sufficiency of the evidence to support the judgment may be raised for the first time on appeal. Fla. R. Civ. P. 1.530(e). This is not, however, a case in which there was no evidence before the trial court.

In this case an expert testified, based on an affidavit filed by Turnpike’s counsel, that her work was necessary and reasonable. We conclude that under these circumstances, where there was no objection to counsel performing the work not testifying, her affidavit and the testimony of the expert are sufficient to support the judgment.

In Insurance Company of North America v. Julien P. Benjamin Equipment Co., 481 So. 2d 511 (Fla. 1st DCA 1985), the court held that the lack of expert testimony on attorney’s fees, where an affidavit of the expert was submitted without objection, could not be raised for the first time on appeal. And in Simhoni v. Chambliss, 843 So. 2d 1036 (Fla. 4th DCA 2003), there was neither expert testimony nor an expert’s affidavit, and we held that the requirement of expert testimony was waived because it was not raised in the trial court. Although these cases involved waiver of expert testimony, we see no reason why we should not apply them here and find a waiver of the requirement of testimony of counsel performing the work, where her affidavit was filed and the expert testified based on the affidavit.

In hearings to determine the amount of attorney’s fees, there is often no dispute as to what is a reasonable number of hours, or a reasonable hourly rate, or both. And, the party opposing the fee award may not in fact want testimony from counsel or an expert. If we were to allow these issues to be raised for the first time on appeal, where there was no objection in the trial court, it would be unfair to the party seeking fees and the trial judge and result in unnecessary appeals.

Affirmed.

STEVENSON and SHAHOOD, JJ., concur.


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