MIA REAL HOLDINGS, LLC, APPELLANT,
v.
CHARLES G. NOLAN, II, APPELLEE

Fla. 4th DCA | 2015-11-25
No. 4D14-4371
CIKLIN, C.J., GROSS and GERBER, JJ., concur.
189 So. 3d 858 Florida District Court of Appeal, Fourth District (2015) Positive Treatment
Cited by 2 cases

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Synopsis

In a mortgage foreclosure action where the plaintiff voluntarily dismissed, the trial court awarded the defendant homeowner $15,455 in attorney's fees. The appellate court reversed, finding insufficient evidence to support fees beyond the $400 monthly rate agreed to in the fee contract, and remanded with direction to award $5,600 for 14 months of representation.


Holding

The court reversed the attorney's fee award because there was inadequate evidence to support fees in excess of $400 per month. The fee sheet was not properly qualified as a business record under Florida Statutes § 90.803(6) because it was an after-the-fact estimation lacking contemporaneous time entries, and the court therefore remanded directing an award of $5,600 (14 months × $400).


Headnotes

[1] A party seeking attorney's fees must present adequate evidence to support the requested amount.

[2] A "fee sheet" prepared by an associate based on unproduced computer notes, without contemporaneous time entries or identification of individual attorneys, is insufficient…

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Key Quotes

“Typically, attorney's fee awards are supported by a combination of business records and testimony.”

Establishes the evidentiary standard for supporting attorney's fee awards

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Facts & Procedural History

Charles Nolan hired law firm Korte & Wortmañ, P.A. to represent him in a foreclosure action that began April 27, 2012. The fee agreement specified $40…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

In this mortgage foreclosure action, the plaintiff, MIA Real Holdings, took a voluntary dismissal. The defendant homeowner moved for attorney’s fees. The trial court awarded $15,455 in fees. We reverse the award and direct the trial court to award $5,600 in fees, the amount supported by the evidence.1

To represent him in the foreclosure, homeowner Charles Nolan, II hired the law firm Korte & Wortmañ, P.A. Nolan signed a fee agreement whereby he agreed to pay the law firm $400 per month during the course of litigation, which began when suit was filed on April 27, 2012. MIA took a voluntary dismissal on June 24, 2013.

Nolan sought fees in excess of $400 per month. Because there was inadequate evidence offered to support anything in excess of $400 per month, we do not reach the question of whether the fee contract would ■ allow. for fees in excess of that amount.

Typically, attorney’s fee awards are supported by a combination of business records and testimony. The business records exception to the hearsay rule, contained in section 90.803(6), Florida Statutes (2014), requires the party seeking to admit the record to establish that:

(1) the record was made at or near the time of the event;
(2) was made by or from information transmitted by a person with knowledge;
(3) was kept in the ordinary course of a regularly conducted business activity; and
(4) it was a regular practice of that business to make such a record.

See, e.g., Landmark Am. Ins. Co. v. Pin-Pon Corp., 155 So.3d 432, 441 (Fla. 4th DCA 2015) (citing Yisrael v. State, 993 So.2d 952, 956 (Fla.2008)). The witness through whom the record is offered must be at least a “qualified witness,” someone who has the knowledge to describe the method by which a record was created. § 90.803(6)(a). A court may refuse to admit a business record if “the sources of information or other circumstances show a lack of trustworthiness.” Id.

At the attorney’s fee hearing below, Nolan failed to qualify a “fee sheet” as a business record of the firm. The sheet had been prepared by a law firm associate who made an estimate of time spent on the case from some “computer notes” which were not introduced in evidence. Con*859trary to Nolan s position at the hearing, the fact that the “fee sheet” was “prepared during regular work hours” does not mean that it was “kept in the ordinary course of a regularly conducted business activity” within the meaning of section 90.803(6). The fee sheet was an after-the-fact guesst-imation of time spent on the case. Apparently, .there were no contemporaneous time entries made by the attorneys who worked on the case and individual attorneys with time on the case could not be identified.

The evidence at trial supports an attorney’s fee award of only $400 per month for the 14 months that the law firm represented Nolan. We therefore reverse the award of attorney’s fees and direct thé triál court on remand to enter a judgment awarding attorney’s fees of $5,600. -

CIKLIN, C.J., GROSS and GERBER, JJ., concur.


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  • Mungia v. State, 232 So. 3d 1049 (Fla. 4th DCA 2017)
    …Per Curiam. Affirmed. See Jones v. State, 189 So. 3d 858 (Fla. 4th DCA 2015). Warner, Conner and Kuntz, JJ., concur.…

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