Demello ex rel. Jerome Adams Trust, Irene V. Adams Trust v. Buckman, — So.2d —-, 2008 WL 2906652 (Fla. 4th DCA Jul 30, 2008)

In the linked-to case the beneficiary of a trust successfully sued her trustee for breach of trust. As a result of this win the trial court awarded her attorneys’ fees and costs. Although unstated, I am assuming the statutory basis for the trial court’s fees/costs award was the then-applicable version of F.S. 736.1004(1)(a), which provides as follows:

(1)(a) In all actions for breach of fiduciary duty or challenging the exercise of, or failure to exercise, a trustee’s powers . . . the court shall award taxable costs as in chancery actions, including attorney fees and guardian ad litem fees.

This, in essence, is a “prevailing party” provision. See In re Estate of Simon, 549 So.2d 210 (Fla. 3 DCA 1989) ("In chancery or equity actions, the well-settled rule is that ‘costs follow the judgment unless there are circumstances that render application of this rule unjust.’"). I am also assuming the trial-court’s ruling as to costs was guided by the recently revised Uniform Guidelines for Taxation of Costs [click here].

NO Evidence = NO Fees

In the linked-to case that old nemesis of the trusts-and-estates bar – an appellate worthy evidentiary record (or lack thereof) – reared its ugly head on appeal, undercutting the trust beneficiary’s trial-court win. While a trustee may not have to put on expert-witness testimony in support of an attorney’s fee/cost award [F.S. 736.0206(5)], a trust beneficiary certainly does . . . at least according to the 4th DCA.  Here’s how the 4th DCA made this point:

This court has previously recognized that “an award of attorney’s fees must be supported by expert evidence, including the testimony of the attorney who performed the services.Rodriguez v. Campbell, 720 So.2d 266, 267 (Fla. 4th DCA 1998).

Generally, when an attorney’s fee or cost order is appealed and the record on appeal is devoid of competent substantial evidence to support the order, the appellate court will reverse the award without remand. However, when the record contains some competent substantial evidence supporting the fee or cost order, yet fails to include some essential evidentiary support such as testimony from the attorney performing the services, or testimony from additional expert witnesses, the appellate court will reverse and remand the order for additional findings or an additional hearing, if necessary.

Id. at 268 (citations omitted).

In this case, Jay Schwartz, who was Buckman’s trial counsel, testified regarding his fee. Buckman also presented the expert testimony of Henry Zippay, Esq. Zippay testified that he was hired to evaluate the materials presented to him by Schwartz for the purpose of evaluating a reasonable hourly rate and fee in the case. Zippay testified:

I don’t have an actual reasonable attorney’s fee. I can only suggest as to reasonable hours, and what I’ve read through here, you had somewhere around 340 some hours, and you’re the only one that I really can testify as to having knowledge of. I find that your 346 or 344, or whatever figure it was, is a reasonable fee or reasonable amount of hours subject to certain qualifications.

Demello correctly argues that the expert witness only testified to the reasonableness of attorney Schwartz’s hours and rates. The expert witness offered no testimony regarding any of the other attorneys and paralegals who worked on the case. There is no expert testimony to support the award of attorney’s fees for work other than that performed by Schwartz. Accordingly, the attorney’s fee order is vacated and this case is remanded for entry of an order awarding only those attorney’s fees that were supported by the expert testimony.

Lesson learned?

If you’re litigating attorney’s fees and costs, a trial court ruling based on a solid evidentiary record is almost invincible on appeal. The linked-to case + the underlying statutory authority cited above should provide a solid road map for building that record. On the other hand, if your record has holes in it, you (and your client) may be in for a rude awakening on appeal.