VALENTIN RODRIGUEZ P.A. v. RICHARD ALTOMARE , 261 So. 3d 590 ( 2018 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
VALENTIN RODRIGUEZ, P.A.,
Appellant,
v.
RICHARD ALTOMARE,
Appellee.
No. 4D18-0785
[December 19, 2018]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; David French, Judge; L.T. Case No. 502015CA009281AH.
Valentin Rodriguez of Valentin Rodriguez, P.A., West Palm Beach, for
appellant.
Peter Ticktin and Kendrick Almaguer of The Ticktin Law Group,
Deerfield Beach, for appellee.
DAMOORGIAN, J.
Appellant, Valentin Rodriguez, P.A. (“Attorney”), appeals an order
entering a directed verdict in favor of Richard Altomare (“Client”). The
issue on appeal is whether Attorney was required to present expert
testimony to establish the reasonableness of the fees in his breach of
contract action against Client for unpaid legal fees. We reverse.
Client entered into a retainer agreement with Attorney for
representation in a mail and securities fraud case in federal court. Under
the agreement, Client was required to pay: $50,000 as an initial, non-
refundable retainer; an additional $50,000 if the case went to trial, for a
trial lasting no more than four days; an additional $3,000 per day if the
trial lasted longer than four days; and an additional $5,000 for sentencing.
Client’s federal case proceeded to a five day trial. At the conclusion of
the case, Attorney billed Client a total of $111,334 in fees and expenses
for his services. Client paid $22,500, leaving a balance of $83,834 after
certain other adjustments were made. Thereafter, Client executed a
promissory note in favor of Attorney for the unpaid balance. Receiving no
further payments from Client, Attorney sued Client for breach of the
retainer agreement and sought compensatory damages in the amount of
$83,834. Client responded to the complaint, but did not challenge the
reasonableness of the flat fees charged by Attorney. The matter ultimately
proceeded to a jury trial.
At trial, Client stipulated that he entered into the retainer agreement
and did not pay Attorney the entire amount due. Accordingly, the only
issue at trial concerned the amount of damages. To establish the amount
of damages, Attorney introduced into evidence the retainer agreement, the
invoice sent to Client listing the flat fees billed, and the promissory note.
Aside from a best evidence objection regarding the promissory note, Client
did not object to this evidence. Attorney also testified about his legal
training and experience, the work he performed on Client’s behalf, and the
balance due by Client.
After Attorney rested, Client moved for a directed verdict on the grounds
that Attorney failed to present independent expert testimony to establish
the reasonableness of the attorney’s fees. Attorney countered that no such
expert testimony was required in a breach of contract action involving a
flat flee. Moreover, Attorney argued that there was more than enough
record testimony to justify the flat fees charged in the federal case. The
court granted the motion for directed verdict on the grounds that Attorney
was required to present independent expert testimony to establish the
reasonableness of the fees. This timely appeal follows.
It is well established “that where a party seeks to have the opposing
party in a lawsuit pay for attorney’s fees incurred in that same action, the
general rule in Florida is that independent expert testimony is required.”
Sea World of Fla., Inc. v. Ace Am. Ins. Cos., 28 So. 3d 158, 160 (Fla. 5th
DCA 2010). Similarly, “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.” Robin Roshkind, P.A. v. Machiela, 45 So. 3d 480,
481 (Fla. 4th DCA 2010). Such a requirement exists “because attorneys
have an ethical duty, pursuant to the Florida Rules Regulating the Florida
Bar, to charge fair and reasonable fees, regardless of the terms of the fee
agreement.” Id. at 481–82.
If, however, a party is seeking to recover previously incurred attorney’s
fees as an element of compensatory damages in a separate breach of
contract action, that party is not required to provide an independent expert
witness to corroborate the reasonableness of the fees. Sea World, 28 So.
3d at 160–61; see also Schwartz v. Bloch, 88 So. 3d 1068, 1072 (Fla. 4th
2
DCA 2012) (“Roshkind does not require independent expert testimony to
establish the reasonableness of professional fees, including attorney’s fees,
when those fees are an element of compensatory damages.”).
In the present case, Attorney sought the previously incurred attorney’s
fees as an element of compensatory damages in his breach of contract
action against Client. Accordingly, Attorney was not required to present
an independent expert witness to establish the reasonableness of the fees.
Schwartz, 88 So. 3d at 1072; Sea World, 28 So. 3d at 160–61.
Moreover, because Attorney sought to recover flat fees and Client not
only acknowledged the obligation when he executed the promissory note
but also failed to raise any substantive objections to the evidence at trial,
Attorney was not required to establish the overall reasonableness of the
fees in his breach of contract action. See Gossett & Gossett, P.A. v.
Mervolion, 941 So. 2d 1207, 1209 (Fla. 4th DCA 2006) (holding that the
court erred in reducing the amount of attorney’s fees contractually billed,
which the client did not dispute or otherwise question, to an amount the
court found reasonable, explaining that “[a] charging lien is contractual in
nature and is to be based upon the amount agreed with the client, not an
amount to be determined by the trial court”); Universal Beverages
Holdings, Inc. v. Merkin, 902 So. 2d 288, 290 (Fla. 3d DCA 2005) (holding
that the attorney was not legally required to provide a detailed accounting
of the number of hours expended and services rendered in his breach of
contract action because “[t]he matter of a fee agreement between a lawyer
and his client is a question of contract,” and the attorney therefore was
only required “to show the existence of an oral contract and its terms”);
see also Matter of Innkeepers of New Castle, Inc., 671 F.2d 221, 230 (7th
Cir. 1982) (holding that because the fee contract expressly provided that
the attorney would recover fifty percent of any net recovery, it was error
for the court “to use a ‘reasonable fee’ standard in lieu of the valid fee
contract as the basis for determining the extent of [the attorney’s] lien”).
Accordingly, the trial court erred in entering a directed verdict in favor
of Client. In light of the stipulations at trial, we reverse and remand for a
new trial on the issue of damages only.
Reversed and remanded for new trial.
WARNER and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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