By: Carey Villeneuve[1]
Decision Certifying Conflict: CED Capital Holdings 2000 EB, LLC v. CTCW-Berkshire Club, LLC, 363 So. 3d 192 (Fla. 6th DCA 2023)
Conflict Certified with: Cohen v. Cohen, 400 So. 2d 463 (Fla. 4th DCA 1981)
Conflict Certified Issue: Whether a party’s counsel must present counsels’ sworn testimony detailing the work counsel performed in support of a request for attorneys’ fees.
Further Review?: None sought
On February 3, 2023, the Sixth District Court of Appeal[2] issued its opinion in CED Capital Holdings 2000 EB, LLC v. CTCW-Berkshire Club, LLC, addressing whether testimony by the attorney who performed the work is required to support a request for attorneys’ fees. The court noted the already-existing conflict, citing cases from the Third and Fifth Districts holding such testimony is not required, and cases from the First, Second, and Fourth Districts holding it is. Since it was not bound by any of the decisions of its sister appellate courts, the court commenced its analysis “by returning to first principles.” Id. at 195.
It explained that in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), the Florida Supreme Court adopted the federal lodestar approach for determining the amount of fees (if entitlement exists). The Rowe court instructed that for the first step in the lodestar analysis, (i.e., the number of hours reasonably expended on the litigation) “‘the attorney fee applicant should present records detailing the amount of work performed.’” CED Cap., 363 So. 3d at 196 (quoting Rowe, 472 So. 2d at 1150).
The CED Capital court explained that Rowe contained no requirement that the attorney who performed the work testify. Rather, it traced the foundation for this requirement to a 1964 Second District case—Lyle v. Lyle, 167 So. 2d 256 (Fla. 2d DCA 1964)—which “discussed the ‘routine’ of counsel testifying to detail the services provided.’” CED Cap., 363 So. 3d at 196. Nearly two decades later, the Fourth District—in Cohen v. Cohen, 400 So. 2d 463 (Fla. 4th DCA 1981)— “held that attorney testimony ‘should have been required by the trial court’ because the practice had been expressly recognized in Lyle.” CED Cap., 363 So. 3d at 196 (quoting Cohen, 400 So. 2d at 465). The CED Capital court stated that “neither the Lyle court’s recognition of the practice nor the Cohen court’s holding requiring such a practice is supported by rule or statute” and “the Cohen court [] simply pronounced a new requirement untethered to any authority and without supporting analysis.” CED Cap., 363 So. 3d at 196-97.
The Sixth District concluded that, in the underlying case, the invoices submitted by the appellant—which the court twice-noted were largely admitted without objection—satisfied the first step in the lodestar analysis. They “described the tasks performed, the individuals who performed each task, the time it took to complete each task, and the hourly rate of each timekeeper.” Id. at 197. Thus, no testimony from the attorneys who performed the work was required. The court certified conflict with the Fourth District’s decision in Cohen “on the issue of whether a party’s counsel must present counsels’ sworn testimony detailing the work counsel performed in support of a request for attorneys’ fees.” CED Cap., 363 So. 3d at 197. The appellee did not seek further review in the Florida Supreme Court.
[1] Carey Villeneuve is a civil appellate and litigation attorney with Buchanan Ingersoll & Rooney, PC in Fort Lauderdale. He previously clerked for United States District Court Judge J.P. Stadtmueller of the Eastern District of Wisconsin. He graduated from the University of Florida, Levin College of Law, magna cum laude.
[2] Judge Nardella authored the opinion for the court, in which Judge Wozniak and then-Chief Judge (now-Justice) Sasso joined.
