Benito San Pedro and Daisy San Pedro v. Law Office of Paul Burkhart and The Claridges Condominium, Inc. ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
BENITO SAN PEDRO and DAISY SAN PEDRO,
Appellants,
v.
LAW OFFICE OF PAUL BURKHART and THE CLARIDGES
CONDOMINIUM, INC., A Florida non-profit corporation,
Appellees.
No. 4D14-1849
[July 1, 2015]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Janis Brustares Keyser, Judge; L.T. Case No.
2008CA023172XXXXMB.
Benito San Pedro and Daisy San Pedro, Palm Beach, pro se.
Jared S. Gillman of Law Offices of Paul J. Burkhart, P.L., Palm Beach
Gardens, for appellee Law Office of Paul J. Burkhart, P.L.
DAMOORGIAN, J.
Appellants, Benito and Daisy San Pedro, appeal an order imposing an
attorney’s charging lien in favor of the Law Offices of Paul Burkhart, P.L.
(“Burkhart”), for work it performed while representing Appellants in a civil
matter. Appellants argue that the lien should be dissolved because the
trial court failed to conduct a sufficient evidentiary hearing, and further
failed to make the necessary findings in support of imposing the lien.
We affirm the trial court’s imposition of the charging lien without further
comment. However, we agree with Appellants to the extent that the trial
court failed to make the necessary findings as to the amount and
reasonableness of the fees and, therefore, remand for further proceedings
consistent with this opinion.
By way of background, Appellants hired Burkhart to represent them in
their dispute with Appellants’ condominium association. The underlying
case ultimately settled, and shortly thereafter Burkhart withdrew as
counsel. Burkhart then filed a notice of charging lien and motion to
adjudicate the lien against Appellants. The notice stated that Appellants
owed $8,683.05 in unpaid attorney’s fees and an additional $1,285.00 for
mediation fees. Eventually, the court considered the motion at a special
set hearing.
During the hearing, Burkhart argued as to its entitlement to the
charging lien and the amount owing. With respect to the amount owing,
Burkhart relied on the exhibits attached to its motion. These exhibits
included detailed billing records and a signed retainer agreement.
Appellants countered that they had fully paid Burkhart under the terms
of the retainer agreement. Both parties, as well as the trial court, referred
to the exhibits during the hearing. Notably, however, neither the actual
attorneys who performed the work in Appellants’ case nor a fee expert
testified at the hearing. Appellants never objected to Burkhart’s reliance
on the exhibits during the hearing, nor did they object to the lack of
testimony.
Ultimately, the trial court entered an order imposing Burkhart’s
charging lien for $8,463.18 in unpaid legal fees. The trial court, however,
made no findings as to the reasonable hourly rate or the amount of hours
reasonably expended in this case. This was error.
The instant record contains some substantial, competent evidence
supporting the amount sought in the charging lien in the form of the
exhibits relied upon by the parties, and the trial court, at the hearing. See
Brewer v. Solovsky, 945 So. 2d 610, 611 (Fla. 4th DCA 2006) (“[c]ompetent
evidence includes invoices, records and other information detailing the
services provided”). To the extent that Appellants now contest the
admission of the exhibits and the lack of testimony, those arguments were
waived when Appellants failed to object at the hearing. See Diwakar v.
Montecito Palm Beach Condo. Ass’n, Inc., 143 So. 3d 958, 960–61 (Fla. 4th
DCA 2014); see also State v. Caldwell, 388 So. 2d 640, 641 (Fla. 1st DCA
1980) (trial court did not err in considering an exhibit not in evidence
where the parties treated, and referred to, the exhibit as though it was
entered into evidence).
However, this evidence was insufficient to establish the amount of fees.
We have consistently held that “[a]n order awarding fees must expressly
determine the number of hours reasonably expended on the litigation and
the reasonable hourly rate for the type of litigation involved.” Rodriguez v.
Campbell, 720 So. 2d 266, 267 (Fla. 4th DCA 1998) (citing Kelly v.
Tworoger, 705 So. 2d 670, 673 (Fla. 4th DCA 1998)). “Generally, when an
attorney’s fee or cost order is appealed and the record on appeal is devoid
of competent substantial evidence to support the order, the appellate court
will reverse the award without remand.” Id. at 268. However, when as
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here, “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 remand the order for additional findings or an additional hearing.” Id.
Accordingly, we reverse and remand with instructions for the trial court
to conduct an evidentiary hearing on the issue of the amount of fees and
costs due on the charging lien, and to thereafter enter an order containing
the necessary findings and conclusions based upon such evidence.
Affirmed in part, reversed and remanded in part.
TAYLOR and MAY, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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