Sheila Diwaker v. Montecito Palm Beach Condominium Association

143 So. 3d 958, 2014 WL 2957444, 2014 Fla. App. LEXIS 10114
CourtDistrict Court of Appeal of Florida
DecidedJuly 2, 2014
Docket4D13-915
StatusPublished
Cited by28 cases

This text of 143 So. 3d 958 (Sheila Diwaker v. Montecito Palm Beach Condominium Association) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sheila Diwaker v. Montecito Palm Beach Condominium Association, 143 So. 3d 958, 2014 WL 2957444, 2014 Fla. App. LEXIS 10114 (Fla. Ct. App. 2014).

Opinion

CIKLIN, J.

Sheila Diwakar appeals the final judgment of foreclosure and an award of attorneys’ fees and costs entered in favor of Montecito Palm Beach Condominium Association, Inc. (“the Association”). She raises six issues on appeal, two of which have merit and which we therefore discuss. First, Diwakar contends the trial court erred in awarding attorneys’ fees in the absence of competent, substantial evidence supporting the award. We agree and reverse the award of fees. Because of the unique circumstances surrounding the issue of fees, we also remand for additional evidence to be taken on attorneys’ fees. Second, Diwakar argues the court erred by entering a judgment for delinquent monthly maintenance assessments in an amount the evidence does not appear to support. With this we also agree, and we reverse and remand for the trial court to modify the judgment or explain how the evidence supports the amount reflected in the final judgment.

In December 2008, the Association filed its complaint, seeking to foreclose its claim of lien for unpaid regular and special assessments. In addition to foreclosure, the Association sought pre-judgment interest and the fees and costs it incurred in enforcing its power to levy assessments.

During trial, the Association presented the testimony of only one witness with respect to attorneys’ fees and costs. The witness, Danielle Schultz, was a paralegal for the law firm representing the Association. Schultz testified regarding the amount due as reflected on a September 2008 claim of lien letter sent to Diwakar by the law firm. According to Schultz, the *960 portion of the amount due representing attorneys’ fees was based on “preparing the claim of lien and the claim of lien letter, which was $836.” Schultz testified that she prepared Diwakar’s account history, which was admitted into evidence. The account history reflected that attorneys’ fees owed on the Diwakar account totaled $45,694.50. The account history provided dates of billings and amounts but included no substantive information as to how the fees were incurred. The total amount of attorneys’ fees reflected in the account history matched the amount provided in an affidavit filed by one of the Association’s attorneys prior to trial. The affidavit, however, was not admitted into evidence during trial and there was no mention or discussion of the affidavit during Schultz’s testimony. Schultz testified that as of the date the account history was prepared, October 5, 2012, $40,094 in attorneys’ fees were charged on Diwakar’s account. Two account ledgers were admitted into evidence. These showed a history of financial transactions related to Diwakar’s account, and it appears they were prepared by the Association. One of the ledgers reflected that Diwakar was billed $141.64 in July 2008 for attorneys’ fees, but no other information was provided about the fees.

In January 2018, the court found in favor of the Association and directed the Association’s attorney to prepare a proposed final judgment. The court stated, “The foreclosure judgment that was submitted by [the Association] needs to be revised with updated numbers, they are all the way back to October.” The written final judgment provided that Diwakar owed $20,976.12 in “Delinquent Monthly Maintenance Assessments through January 31, 2013.” That amount did not include late fees and interest which were provided for separately in the final judgment.

We first address Diwakar’s argument that the award of attorneys’ fees was not supported by competent, substantial evidence. The standard of review of an award of attorneys’ fees is abuse of discretion. Glantz & Glantz, P.A. v. Chinchilla, 17 So.3d 711, 713 (Fla. 4th DCA 2009) (citations omitted). “We will uphold a trial court’s award of attorneys’ fees so long as it is supported by substantial, competent evidence.” Effective Teleservices, Inc. v. Smith, 132 So.3d 335, 341 (Fla. 4th DCA 2014) (citation omitted).

An award of attorney’s fees must be supported by substantial competent evidence and contain express findings regarding the number of hours reasonably expended and a reasonable hourly rate for the type of litigation involved. Additionally, the award must be supported by expert evidence, including the testimony of the attorney who performed the services.

Tutor Time Merger Corp. v. MeCabe, 763 So.2d 505, 506 (Fla. 4th DCA 2000) (citations omitted). “Competent evidence includes invoices, records and other information detailing the services provided as well as the testimony from the attorney in support of the fee.” Brewer v. Solovsky, 945 So.2d 610, 611 (Fla. 4th DCA 2006) (citations omitted).

To the extent Diwakar argues on appeal that the attorneys’ fee award was erroneous in the absence of testimony from a fees expert plus the attorney who performed the work, the argument was waived when Diwakar failed to object at trial. See DM Records, Inc. v. Turnpike Commercial Plaza, Phase II, Condo. Ass’n, 894 So.2d 1030, 1031 (Fla. 4th DCA 2005) (finding the requirement that counsel performing the work testify was waived where attorney’s affidavit was admitted, an expert testified based on it, and there was no objection); Simhoni v. Chambliss, 843 *961 So.2d 1036, 1037 (Fla. 4th DCA 2003) (noting that “appellant did not object to appellee’s failure to call an expert at the fees hearing, thereby failing to preserve that issue for appellate review”). However, Diwakar’s argument that there was simply no competent, substantial evidence to support the award may be raised for the first time on appeal. See Fla. R. Civ. P. 1.530(e) (“When an action has been tried by the court without a jury, the sufficiency of the evidence to support the judgment may be raised on appeal whether or not the party raising the question has made any objection thereto in the trial court or made a motion for rehearing, for new trial, or to alter or amend the judgment.”).

“Generally, when the record on appeal is devoid of competent substantial evidence to support the attorney’s fee award, the appellate court will reverse the award without remand for additional evidentiary findings.” Tutor Time Merger Corp., 763 So.2d at 506 (citations omitted). “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.” Rodriguez v. Campbell, 720 So.2d 266, 268 (Fla. 4th DCA 1998) (citations omitted).

Here, the Association did not present any evidence of the reasonableness of the fees, even though it listed an expert on that issue in its pre-trial witness list. While there was meager evidence as to a fraction of the work performed, the account history Schultz relied upon did not provide any detail regarding the identity of the timekeeper, the hours worked, or the work performed.

On appeal, the Association relies on “updated” affidavits filed after the trial concluded and the court had announced its ruling. However, no affidavits were introduced at trial.

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Bluebook (online)
143 So. 3d 958, 2014 WL 2957444, 2014 Fla. App. LEXIS 10114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sheila-diwaker-v-montecito-palm-beach-condominium-association-fladistctapp-2014.