Significant Caselaw: When Expert Testimony Is Not Required to Obtain an Award of Attorney’s Fees
April 1, 2020*
Robin Bresky argued before the Fourth DCA and successfully defended an award of attorney’s fees involving an important issue of law. The Law Offices of Robin Bresky assisted the appellee, another law firm, in an appeal by that firm’s former client, a condominium association. The association challenged the fee award due to the absence of supporting expert witness testimony. The favorable result for our client, the law firm, protects the fees awarded by the trial court and represents a significant addition to the case law on the issue of when the testimony of an expert witness is required to support an award of attorney’s fees in the Fourth District.
In its appeal, the condominium association argued that the judgment should be reversed because an award of attorney’s fees requires the testimony of an expert witness in support of the reasonableness of the fees. The issue of whether expert witness testimony is required to support an award of attorney’s fees has received much attention in recent years and has been the subject of several opinions in Florida’s appellate courts. See Ghannam v. Shelnutt, 199 So. 3d 295 (Fla. 5th DCA 2016); Schwartz v. Bloch, 88 So. 3d 1068 (Fla. 4th DCA 2012); Robin Roshkind, P.A. v. Machiela, 45 So. 3d 480 (Fla. 4th DCA 2010).
The law firm responded that no expert witness testimony was required under the Fourth DCA precedent of Valentin Rodriguez, P.A. v. Altomare, 261 So. 3d 590, 592 (Fla. 4th DCA 2018), cert. den., 2019 WL 2261369 (Fla. May 28, 2019). The law firm stressed that it sought its fees as compensatory damages in a separate breach of contract action. The Fourth DCA held oral argument in the appeal, and Robin Bresky argued on behalf of the law firm.
The Fourth DCA issued a written opinion affirming the judgment that awarded the law firm the unpaid attorney’s fees as damages. The Fourth DCA relied upon Rodriguez in affirming the award in favor of the law firm, confirming that, at least in the Fourth District, “expert testimony is not necessary to support an award of fees as compensatory damages, where previously incurred attorney’s fees are being sought in a separate contract action against a client.” However, it should be noted that the law on this issue appears to be different in the Fifth and Second DCAs. See Ghannam, 199 So. 3d at 299-300; Sourcetrack, LLC v. Ariba, Inc., 34 So. 3d 766, 768 (Fla. 2d DCA 2010).
* Not final until disposition of any timely-filed motions for rehearing *