DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ASHI MENDELSON,
Appellant,
v.
HARRIS S. HOWARD, DANA ALTMAN, and ADMIRAL’S COVE
TOWNHOMES AT HARBOR ISLANDS ASSOCIATION, INC.,
Appellees.
No. 4D21-1552
[October 26, 2022]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Nicholas Richard Lopane, Judge; L.T. Case No.
CACE17019106.
Michael S. Kaufman, Miami, for appellant.
Michael J. Dono and Jason B. Bloom of Hamilton, Miller & Birthisel,
LLP, Miami, for appellees Dana Altman and Admiral’s Cove Townhomes at
Harbor Island Association, Inc.
ARTAU, J.
This appeal concerns an award of attorney’s fees and costs to Admiral’s
Cove Townhomes at Harbor Islands Association, Inc., and its property
manager, Dana Altman (defendants), pursuant to section 57.105, Florida
Statutes (2020), following the voluntary dismissal of the action filed
against them by Ashi Mendelson (plaintiff). While we affirm the trial
court’s determination that defendants are entitled to an award of fees and
costs pursuant to the statute, we reverse the trial court’s determination as
to the amount of fees and costs awarded because the trial court erred in
disqualifying plaintiff’s proffered expert witness on the question of the
reasonableness of the amounts requested.
At the evidentiary hearing to determine the amounts to be awarded,
plaintiff attempted to present testimony from an experienced Florida
attorney. Although the attorney had never previously testified as an
expert, he was experienced in attorney billing, had previously litigated fee
disputes, and was a practicing attorney familiar with the reasonable
amounts customarily awarded for similar litigation matters pursuant to
the factors set forth in Florida Patient’s Compensation Fund v. Rowe,
472
So. 2d 1145 (Fla. 1985).
The trial court excluded plaintiff’s proffered attorney expert from
testifying, stating only: “Well, I don’t think he meets the criteria to be
qualified as an expert, I’m sorry.” The trial court then awarded the
attorney’s fees and costs now in dispute based solely on the testimony
presented by defendants’ attorney expert.
A trial court’s determination “to exclude expert testimony is reviewed
for an abuse of discretion.” Bunin v. Matrixx Initiatives, Inc.,
197 So. 3d
1109, 1110 (Fla. 4th DCA 2016). While a trial court has “discretion to
determine a witness’s qualifications to express an opinion as an expert,” a
trial court’s exclusion of an expert’s opinion will only be upheld “absent a
clear showing of error.” Brooks v. State,
762 So. 2d 879, 892 (Fla. 2000).
A witness is qualified to provide expert testimony if he or she possesses
specialized “knowledge, skill, experience, training, or education” so long as
“(1) [t]he testimony is based upon sufficient facts or data; (2) [t]he
testimony is the product of reliable principles and methods; and (3) [t]he
witness has applied the principles and methods reliably to the facts of the
case.” § 90.702, Fla. Stat. (2020) (incorporating the standard for
admission of expert testimony found in Federal Rule of Evidence 702 as
adopted by the United States Supreme Court in Daubert v. Merrell Dow
Pharmaceuticals, Inc.,
509 U.S. 579, 589 (1993)); see also In Re: Amends.
to the Fla. Evidence Code,
278 So. 3d 551, 554 (Fla. 2019) (adopting the
Legislature’s Daubert amendments to the Florida Evidence Code).
Neither section 90.702 nor our case law require that an attorney have
previously testified as an expert on the reasonableness of the amount of
attorney’s fees and costs to be qualified as an expert. Instead, what is
required for the testimony to be admissible is for the trial court “to assess
whether the expert’s ‘reasoning or methodology properly can be applied to
the facts in issue.’” Philip Morris USA, Inc. v. Naugle,
337 So. 3d 13, 18
(Fla. 4th DCA 2022) (quoting Kemp v. State,
280 So. 3d 81, 88-89 (Fla. 4th
DCA 2019)).
The trial court clearly erred by excluding the plaintiff’s proffered expert
testimony based on reasons that should only have been considered in
determining the testimony’s weight, not its admissibility. See Bell v. State,
179 So. 3d 349, 357 (Fla. 5th DCA 2015) (cautioning that “the evidence
code ‘does not mandate that an expert be highly qualified in order to testify
about a given issue’ because ‘[d]ifferences in expertise bear chiefly on the
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weight to be assigned to the testimony . . . not its admissibility.’”
(alteration in original) (quoting Huss v. Gayden,
571 F.3d 442, 452 (5th
Cir. 2009))).
We therefore reverse the amount of fees and costs awarded in the
judgment. We direct the trial court on remand to conduct a new hearing
on the reasonableness of the fees and costs to be awarded consistent with
this opinion.
Affirmed in part, reversed in part, and remanded with instructions.
GERBER and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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