Cozzo v. Cozzo

Third District Court of Appeal
State of Florida
Opinion filed November 25, 2015.
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No. 3D15-133
Lower Tribunal No. 12-12300
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Kaitlin Liptak Cozzo,
Appellant,
vs.
Samuel Charles Cozzo,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Barbara Areces,
Judge.
Kimberly L. Boldt (Boca Raton); Hoffman & Hoffman and Teresa Abood
Hoffman and Maggie A. Berryman, for appellant.
Samuel C. Cozzo, in proper person.
Before WELLS, SHEPHERD and LOGUE, JJ.
SHEPHERD, J.
ON MOTION FOR REHEARING
On consideration of the motion for rehearing, clarification and/or
certification filed by Samuel Charles Cozzo, we withdraw our previous opinion
and substitute the following opinion.
Kaitlin Liptak Cozzo, the former wife below, appeals from an order denying
her request for attorney’s fees in proceedings commenced by her former husband,
Samuel Charles Cozzo, soon after the parties’ dissolution of marriage. Because the
trial court erred in granting an involuntary dismissal mid-hearing on the motion for
attorney’s fees, we reverse and remand for further proceedings.
The parties’ marriage was dissolved on February 19, 2013, at which time the
trial court ratified the parties’ mediated settlement agreement providing for the
parenting and support of their two minor children. Approximately four months
later, Samuel Charles Cozzo filed motions seeking to enforce the parties’ parenting
plan and to appoint a guardian ad litem for the children.1 The former wife
subsequently moved for attorney’s fees based on the disparity between the parties’
financial status, her need, and the former husband’s ability to pay. The trial court
proceeded to hold two evidentiary hearings to determine the reasonableness of the
requested fees.
At the initial hearing, the former wife presented the testimony of an attorney
fee expert, who, after reviewing the services performed by the former wife’s
1 The former husband also filed other motions which are not relevant to this appeal.
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attorney, opined that the attorney’s fees incurred were reasonable. At the second
hearing, counsel for former wife presented the testimony of her firm’s records
custodian, through whom the trial court admitted the invoice time sheets, detailing
the work performed. At the conclusion of this evidence, the former husband
argued the evidence presented was insufficient to prove the former wife’s claim for
attorney’s fees and moved for a directed verdict.2 The former husband insisted the
attorney who performed the legal services in question had to testify directly. The
trial court agreed and entered the order appealed from denying the motion for
attorney’s fees.
Florida law requires a party seeking attorney’s fees to provide proof (a)
“detailing the nature and extent of the services performed and … [(b)] expert
testimony regarding the reasonableness of the fees.” Trumbull Ins. Co. v.
Wolentarski, 2 So. 3d 1050, 1055 (Fla. 3d DCA 2009) (quoting Morton v.
Heathcock, 913 So. 2d 662, 669 (Fla. 3d DCA 2005)); see also, Saussy v. Saussy,
560 So. 2d 1385 (Fla. 2d DCA 1990) (applying this evidentiary standard in a
dissolution case). Where a party has provided sufficient, admissible proof of these
two components, no court has further mandated direct testimony from the attorney
who performed the services.
2In a bench trial, the motion is properly one for involuntary dismissal. Fla. R. Civ.
P. 1.420(b); Valdes v. Assoc. I.N.E.D., H.M.O., Inc., 667 So. 2d 856, n.1 (Fla. 3d
DCA 1996).
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Accordingly, we reverse the order denying the former wife’s motion for
attorney’s fees for lack of evidentiary proof, and remand for further proceedings.
Reverse and remanded.
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Kaitlin Liptak Cozzo v. Samuel Charles Cozzo,
3D15-133
WELLS, Judge, (specially concurring).
I agree with the majority in granting rehearing to clarify that the trial court
erred in granting an involuntary dismissal of the former wife’s motion for
attorney’s fees because she purportedly failed to sufficiently establish the nature
and extent of the services performed and the reasonableness of the fees incurred. I
do so because as both our original opinion and the instant opinion on rehearing
confirm sufficient competent, substantial evidence was adduced by the former wife
below to establish both elements. I write, however, to confirm that because of the
dismissal—secured at the former husband’s behest—the former husband had no
opportunity to adduce evidence regarding the amount of the fee to be awarded and
that on remand he should be accorded that opportunity alone.
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