SOURCETRACK, LLC, A NEVADA LIMITED LIABILITY COMPANY; BEST PRODUCTS, LLC, A NEVADA LIMITED LIABILITY COMPANY; AND MV VENTURE PARTNERS V, LLC, A DELAWARE LIMITED LIABILITY COMPANY, APPELLANTS,
v.
ARIBA, INC.; TRADEX TECHNOLOGIES, INC.; AND AMHERST TECHNOLOGIES, LLC, A NEVADA LIMITED LIABILITY COMPANY, APPELLEES
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The trial court erred in awarding appellate attorney's fees without competent, substantial evidence, specifically expert testimony on reasonableness, and the court disapproved the order in part.
[1] An order awarding appellate attorney's fees may be reviewed by filing a motion for review under Florida Rule of Appellate Procedure 9.400(c).
[2] A trial court may award appellate attorney's fees jointly and severally against multiple appellants if the facts of the case warrant such an apportionment.
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Join FLexlaw to unlock all legal intelligenceAppellants challenged a final judgment awarding appellate attorney's fees. The trial court awarded fees without requiring expert testimony for the app…
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ORDER ON MOTION FOR REVIEW OF APPELLATE FEES
The appellants challenge a final judgment awarding appellate attorney’s fees pursuant to the order on attorney’s fees entered by this court on June 6, 2007. We review the order as authorized by Florida Rule of Appellate Procedure 9.400(c). See Pellar v. Granger Asphalt Paving, Inc., 687 So.2d 282, 284 (Fla. 1st DCA 1997) (noting that “the correct method of seeking review of an order on appellate costs or attorney’s fees is to file a motion for review” under rule 9.400(c)); Zaremba Fla. Co. v. Klinger, 550 So.2d 1131, 1132 (Fla. 3d DCA 1989) (treating the appeal of an order on attorney’s fees entered after a remand from the district court as a motion for review of fees under rule 9.400(c)). We disapprove the order in part and remand for further proceedings.1
There have been extensive appellate proceedings between these parties. See Lipson v. Ariba, Inc., 11 So.3d 950 (Fla. 2d DCA 2009) (table decision); Sourcetrack, LLC v. Ariba, Inc., 961 So.2d 948 (Fla. 2d DCA 2007) (table decision); Sourcetrack, LLC v. Ariba, Inc., 958 So.2d 523 (Fla. 2d DCA 2007). After this court authorized an award of appellate attorney’s fees for the appellees, the trial court awarded fees in the amount of $302,617.75 against the appellants, jointly and severally. The appellants argue that the fees should have been apportioned among them. We disagree and conclude that, under the facts of this case, the trial court did not err in awarding the fees jointly and severally.
The appellants also argue that the trial court erred because it did not require the appellees to present any expert testimony concerning the reasonable and necessary attorney’s fees for the defense of this appeal. The trial court relied on earlier expert testimony relating to reasonable fees for work in the trial court. Those rates were actually lower than some of the rates that the trial court awarded in this case.
*768Although the standard of review of an order setting an amount of appellate attorney’s fees is often described as abuse of discretion, see, e.g., Gen. Motors Acceptance Corp. v. Laesser, 791 So.2d 517, 519 (Fla. 4th DCA 2001), that discretion can only be exercised by a court after it has received competent, substantial evidence permitting a discretionary decision. There is currently some debate about whether trial judges should be given greater latitude to award attorney’s fees without always receiving expert testimony from attorneys uninvolved in the case. See, e.g., Sea World of Fla., Inc. v. Ace Am. Ins. Cos., Inc., 28 So.3d 158, 159 (Fla. 5th DCA 2010); In re Amendments to Fla. Rules of Civil Procedure, 966 So.2d 943, 944 (Fla.2007). This court, however, continues to require such testimony. See Snow v. Harlan Bakeries, Inc., 932 So.2d 411, 412 (Fla. 2d DCA 2006) (reversing attorney’s fee award because the defendant failed to present expert testimony as to the reasonableness of the amount of fees); Yakubik v. Bd. of County Comm’rs of Lee County, 656 So.2d 591, 591 (Fla. 2d DCA 1995) (“The testimony of an expert witness concerning reasonable attorney’s fees is necessary to support the establishment of the fees.”). Especially in a case of this magnitude, it is important for a trial judge, who may be unfamiliar with the work typically performed by appellate counsel, to obtain testimony on the reasonableness of the fees and the need for the legal work. Thus, in this case, the trial court erred by awarding fees without competent, substantial evidence to support an award.
We note that the appellees retained out-of-state attorneys who have been allowed to appear in these proceedings pro hac vice. They appear to have charged hourly rates in excess of those charged by competent attorneys residing within this district. See, e.g., Fla. Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1150 (Fla.1985). The appellees were certainly free to retain the attorneys of their choice. But the appellants should not have to bear liability for additional fees absent some showing that these attorneys had a special expertise that required their participation at hourly rates above those normally charged by local attorneys handling comparable cases, or a showing of some alternative basis warranting fees above the market rate in this district.
Approved in part, disapproved in part, and remanded.
KELLY and LaROSE, JJ., Concur.
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Robin Roshkind, P.A. v. MacHiela, 45 So. 3d 480 (Fla. 4th DCA 2010)…). And, case law throughout this state has adhered to the requirement of an independent expert witness to establish the reasonableness of fees, regardless of whether a first or third party is responsible for payment. Sourcetrack, LLC v. Ariba, Inc., 34 So. 3d 766 (Fla. 2d DCA 2010). We have, however, previously questioned the judicially-created requirement of independent expert witness testimony in establishing the reasonableness of attorney’s fees. See Island Hoppers, Ltd. v. Keith, 820 So. 2d 967, 972 (Fl…
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State Farm Mut. Auto. Ins. Co. v. Statsick, 231 So. 3d 528 (Fla. 2d DCA 2017)…etion standard applicable under rule 1.540(b), although deferential, requires that the decision to exercise discretion and afford relief under any of these subsections be supported by competent substantial evidence. Sourcetrack, LLC. v. Ariba, Inc., 34 So. 3d 766, 768 (Fla. [*533] 2d DCA 2010) (“[P]iscretion can only be exercised by a court after it has received competent, substantial evidence permitting a discretionary decision.”); see also Rude v. Golden Crown Land Dev. Corp., 521 So. 2d 351, 353 (Fla. 2d…
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Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fla. Patient's Comp. Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985)
- Richitelli v. State, 687 So. 2d 282 (Fla. 3d DCA 1997)
- SEA World OF Fla., Inc. v. ACE Am. Ins. Cos., Inc., 28 So. 3d 158 (Fla. 5th DCA 2010)
- Zaremba Fla. Co. v. Joan and Barbara Klinger, 550 So. 2d 1131 (Fla. 3d DCA 1989)
- Sourcetrack, LLC v. Ariba, Inc., 958 So. 2d 523 (Fla. 2d DCA 2007)
- Snow v. Harlan Bakeries, Inc., 932 So. 2d 411 (Fla. 2d DCA 2006)
- Yakubik v. Bd. OF Cnty. Comm'rs OF LEE Cnty., 656 So. 2d 591 (Fla. 2d DCA 1995)
- Gen. Motors Acceptance Corp. v. Laesser, 791 So. 2d 517 (Fla. 4th DCA 2001)
- Williams v. State, 257 So. 3d 428 (Fla. 2d DCA 2018)
- In re Amendments to Florida Rules of Civil Procedure, 966 So. 2d 943 (Fla. 2007)