JOHN G. FATOLITIS, APPELLANT,
v.
MARY FATOLITIS, APPELLEE
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John Fatolitis appealed a judgment awarding his ex-wife Mary attorneys' fees and costs totaling $3,000 in the trial court plus $1,000 for appellate services. The court reversed the $1,000 appellate fee award because no motion for such fees was filed in the appellate court as required, but affirmed the $3,000 trial court fee as supported by substantial evidence and remanded for reconsideration of deposition costs.
The $1,000 appellate fee award was reversed because no motion for appellate attorneys' fees was filed in the appellate court as required by the Florida Appellate Rules, and the appellate court did not reserve or address such fees in its mandate, thereby terminating Mary's right to collect such fees from the trial court. The $3,000 award for trial court services was affirmed as supported by competent substantial evidence and not an abuse of discretion. The matter was remanded for the trial judge to reconsider whether costs for the two depositions could be taxed under the discretionary standard allowing such costs when they serve a useful purpose.
[1] A trial court lacks authority to fix attorneys' fees for appellate services if the appellate court did not award or refer to such fees in its decision or mandate.
[2] The testimony of an expert witness regarding attorneys' fees is persuasive but not conclusive or binding on the court.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Mary did not file a motion for attorneys' fees in this Court as provided in FAR 3.16(e), 32 F.S.A., nor did this Court fix or refer to attorneys' fees in its decision or mandate...Mary's right to attorneys' fees in that appeal has therefore been terminated, and the trial Court does not have authority to fix attorneys' fees for such services”
Establishes the holding that appellate fees cannot be awarded by the trial court unless a motion was filed in the appellate court and that court addressed the issue
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Join FLexlaw to unlock all legal intelligenceJohn and Mary Fatolitis were parties to a divorce action. In 1970, John appealed an order correcting an order dismissing the complaint and counterclai…
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Appellant John G. Fatolitis, plaintiff below, seeks review of a judgment awarding attorneys’ fees to appellee Mary Fatolitis, defendant below, which included a fee of $1,000.00 for legal services performed in the appellate court. Mary Fatolitis cross-assigns as error the amount of. the attorneys' fees and the costs awarded.
In 1970 an appeal was taken to this Court by John from an order correcting an order dismissing the complaint and counterclaim. Mary did not file a motion for attorneys’ fees in this Court as provided in FAR 3.16(e), 32 F.S.A., nor did this Court fix or refer to attorneys’ fees in its decision or mandate. See Fatolitis v. Fatolitis, Fla.App. 1971, 247 So.2d 525. Mary’s right *229to attorneys’ fees in that appeal has therefore been terminated, and the trial Court does not have authority to fix attorneys’ fees for such services, Howell v. Howell, Fla.App.1966, 183 So.2d 261; Anderson v. Anderson, Fla.App.1965, 180 So.2d 360; In re Estate of Potts, Fla.App.1967, 199 So.2d 319.
The next question involves the amount awarded Mary for services rendered by her attorneys in the lower 'Court. John contends that the amount was not supported by competent evidence, and Mary contends that the amount awarded should have been the entire amount recommended by her expert witness, since he was the only witness who testified as to attorneys’ fees.
The expert witness testified that in his opinion a reasonable fee would be $6,650.-00, which included legal services performed in the appeal. On cross examination, the expert admitted that his opinion was based upon a fifteen minute examination of the file and upon what Mary’s attorney had told him as to the time expended. He admitted that he did not know whether the seventy hours spent on study and preparation were necessary or well-spent. The trial Court awarded Mary $3,000.00 for services rendered by her attorneys in the lower Court, giving appellant a credit of $300.00 paid to Mary’s attorneys as temporary attorneys’ fee.
While the testimony of an expert witness is persuasive only, Lyle v. Lyle, Fla.App.1964, 167 So.2d 256, and such testimony is neither conclusive nor binding on the Court, Folmar v. Davis, Fla.App.1959, 108 So.2d 772, the amount of attorneys’ fees must be supported by competent substantial evidence, Lyle v. Lyle, supra; Ortiz v. Ortiz, Fla.App.1968, 211 So.2d 243.
The trial Judge had the files before him, had presided over the final hearing in the divorce action, and was familiar with the case. Neither party has demonstrated an abuse of discretion in awarding appellee $3,000.00 for services rendered by her attorneys in the lower Court.
The other question raised by appellant has been considered by the Court and found to be without merit.
On cross-appeal Mary asserts that the trial Court erred in refusing to allow recovery for the cost of taking two depositions which were not introduced into evidence.
Whether recovery for the cost of taking depositions may be allowed rests in the sound discretion of the trial Court.
Costs of depositions have been held to be taxable if they serve a useful purpose, even though not introduced into evidence, Lockwood v. Test, Fla.App.1964, 160 So.2d 142; Buyer Finance Corporation v. Oliveros, Fla.App.1967, 196 So.2d 451; Cohn v. Florida National Bank at Orlando, Fla.App.1969, 223 So.2d 767.
For the reasons set forth, that part of the order granting appellee $1,000.00 for services rendered in the appeal taken by appellant in 1970 is reversed, and the order is affirmed in all other particulars. In remanding the cause, however, jurisdiction is specially conferred upon the trial Judge to consider the taxing of costs for the two depositions in question, if he has not already considered it in the light of the cases cited above.
Affirmed in part and reversed in part and remanded with directions to enter an order in accordance with this opinion.
HOBSON, Acting C. J., and Mc-NULTY, J., concur.
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Jules J. Cohen v. Rosalyn L. Cohen, 400 So. 2d 463 (Fla. 4th DCA 1981)…the subject party’s attorney testifying as to his services although Lyle v. Lyle, supra, expressly recognizes such to be the practice. See also Nivens v. Nivens, 312 So. 2d 201 (Fla. 2d DCA 1975). Appellee points out that in Fatolitis v. Fatolitis, 271 So. 2d 227 (Fla. 2d DCA 1973), the expert was apparently the only witness who testified as to attorney’s fees. Upon reflection, in view of appellant’s objection, we hold that the testimony of appellee’s attorney should have been required by the trial court.…
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Orlando Reg'l Med. Ctr., Inc. v. Boleslaus J. Chmielewski, 573 So. 2d 876 (Fla. 5th DCA 1990)…the trial or quoted to the jury. The trial judge has broad discretion in these matters. We cannot agree with ORMC that the record demonstrates error here. See St. Lucie County v. Browning, 358 So. 2d 253 (Fla. 4th DCA 1978); Fatolitis v. Fatolitis, 271 So. 2d 227 (Fla. 2d DCA 1973). Similarly, we think awards for expert witness fees for two medical experts who were deposed, but who did not appear at trial, were within the trial court’s discretion. See Avellone v. Mehta, 544 So. 2d 1122 (Fla. 3d DCA 1989). O…
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Crispin v. Crispin, 411 So. 2d 218 (Fla. 3d DCA 1982)…urt did not, ipso facto, abuse its discretion by awarding attorneys’ fees in an amount less than the expert testimony offered by the appellant, notwithstanding that appellee offered no opposing expert testimony on that issue. Fatoiitis v. Fatolitis, 271 So. 2d 227 (Fla. 2d DCA 1973). Affirmed.…
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 (12 total)
- Lyle v. Lyle, 167 So. 2d 256 (Fla. 2d DCA 1964)
- Folmar v. Davis, 108 So. 2d 772 (Fla. 3d DCA 1959)
- Ortiz v. Ortiz, 211 So. 2d 243 (Fla. 3d DCA 1968)
- Cohn v. Fla. Nat'l Bank AT Orlando, 223 So. 2d 767 (Fla. 4th DCA 1969)
- Anderson v. Anderson, 180 So. 2d 360 (Fla. 3d DCA 1965)
- Lockwood v. Test, 160 So. 2d 142 (Fla. 2d DCA 1964)
- Revenell v. State, 183 So. 2d 261 (Fla. 4th DCA 1966)
- Howell v. Howell, 183 So. 2d 261 (Fla. 2d DCA 1966)
- Buyer Fin. Corp. v. Oliveros, 196 So. 2d 451 (Fla. 3d DCA 1967)
- In re Est. of Ira D. Potts, 199 So. 2d 319 (Fla. 2d DCA 1967)