Sheila Diwaker v. Montecito Palm Beach Condominium Association , 2014 Fla. App. LEXIS 10114 ( 2014 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2014
SHEILA DIWAKAR,
Appellant,
v.
MONTECITO PALM BEACH CONDOMINIUM ASSOCIATION, INC.,
Unknown Tenant #1, Unknown Tenant #2, and MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC., as Nominee for
METROCITIES MORTGAGE, LLC,
Appellees.
No. 4D13-915
[July 2, 2014]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Diana Lewis, Judge; L.T. Case No.
502008CA040876XXXXMBAW.
Richard W. Glenn of the Law Office of Richard W. Glenn, Palm Beach
Gardens, for appellant.
Josef M. Fiala of St. John Rossin Podesta Burr & Lemme, PLLC, West
Palm Beach, for appellee Montecito Palm Beach Condominium
Association, Inc.
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 portion of the amount due representing attorneys’ fees was
based on “preparing the claim of lien and the claim of lien letter, which
was $336.” 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 2013, 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 &
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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 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
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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. With regard to the affidavits filed in the
case during the course of litigation, there was no mention of these
affidavits by Schultz. See State v. Caldwell, 388 So. 2d 640, 641 (Fla. 1st
DCA 1980) (finding court did not err in considering affidavit not in evidence
where the parties treated it as though it was entered into evidence and the
testimony regarding attorneys’ fees was based on the affidavit).
Because the evidence was insufficient, we reverse the award of
attorneys’ fees and costs. However, we also remand for the trial court to
take additional evidence. The record reflects that prior to trial, the
Association filed the affidavits of the fees expert and an attorney who
represented the Association. The affidavit of the attorney included detailed
entries regarding hours worked and the work performed, and the multiple
timekeepers are identified by numbers. For some unknown reason, the
Association did not introduce the affidavits or the testimony of the expert
and the timekeeping attorneys at trial. However, the amount of attorneys’
fees testified to by Schultz matched the amount in the attorney’s affidavit.
Also unclear is why Diwakar did not object to Schultz’s testimony in light
of the Association’s failure to introduce into evidence the affidavits and the
affiants’ testimony. All of these circumstances leave us to wonder whether
there was some understanding, not memorialized on the record, that the
filed affidavits could be relied on by the court. Based on the record before
us, we remand for the court to take additional evidence on attorneys’ fees
and costs.
Diwakar also argues on appeal that the amount awarded for delinquent
assessments is not supported by the evidence. Specifically, she takes
issue with the portion of the judgment awarding $20,976.12 for delinquent
monthly maintenance assessments. According to Diwakar, the amount
she owed for the regular monthly assessments, accruing from July 2010
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through January 2013, was $13,602.20. We review the trial court’s
factual findings for competent substantial evidence. Siewert v. Casey, 80
So. 3d 1114, 1116 (Fla. 4th DCA 2012) (citation omitted).
We have reviewed the record and cannot find justification for the
$20,976.12 awarded for delinquent monthly maintenance assessments.
The account history, coupled with the testimony of the Association’s
manager, established that Diwakar was current on her monthly
maintenance assessments through June 2010. While Schultz testified
that as of October 5, 2012, Diwakar owed $19,755.11 for delinquent
monthly maintenance assessments, the actual account history showed
that for the assessments billed from July 2010 to October 2012, Diwakar
owed $12,389. Even if Diwakar owed additional assessments between
October 5, 2012 and the date the judgment was entered in January 2013,
the amount could not have increased to more than $14,000. It does not
appear that the record supports the larger figure.
We reverse and remand for the trial court to modify the judgment
amount or explain how the evidence supports the amount reflected in the
judgment.
Affirmed in part, reversed in part, and remanded with directions.
MAY and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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