Crown Custom Homes, Inc. v. Sabatino
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IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA
October 16, 2009
CROWN CUSTOM HOMES, INC.,
Appellant,
v.
JOSEPH SABATINO and CAROL
SABATINO,
Appellees.
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Case No. 2D08-1612
2D08-1613
CONSOLIDATED
BY ORDER OF THE COURT:
Appellant's motion for rehearing is denied. Appellant's motion for clarification is
granted. The prior opinion dated July 31, 2009, is withdrawn, and the attached opinion
is issued in its place. No further motions for rehearing will be entertained.
I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER.
JAMES BIRKHOLD, CLERK
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
CROWN CUSTOM HOMES, INC.,
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Appellant,
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v.
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JOSEPH SABATINO and CAROL
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SABATINO,
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Appellees.
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___________________________________ )
Case Nos. 2D08-1612
2D08-1613
CONSOLIDATED
Opinion filed October 16, 2009.
Appeals from the Circuit Court for Collier
County; Dwight L. Geiger, Associate Senior
Judge.
Raymond L. Bass, Jr., of Bass Law Office,
Naples, for Appellant.
Jon D. Parrish and Kirt R. Posthuma of
Parrish, Lawhon & Yarnell P.A., Naples, for
Appellees.
CASANUEVA, Chief Judge.
Crown Custom Homes, Inc. (Crown), appeals the trial court’s award of
attorney's fees to the appellees, Joseph and Carol Sabatino. Finding error in the
proceeding, we reverse and remand for a new evidentiary hearing.
Facts
Mr. and Mrs. Sabatino sued Crown, asserting multiple theories of recovery
arising from Crown's construction of their home. Crown counterclaimed against the
Sabatinos asserting several claims, including a count seeking to foreclose a
construction lien against the real property. Ultimately Crown prevailed on all counts
save one. The court resolved the count to foreclose the construction lien in favor of the
Sabatinos, finding that Crown failed to perfect its lien when it did not properly serve a
notice to owner. The Sabatinos sought attorney's fees pursuant to the construction lien
statute. The trial court conducted a hearing on the matter and found that "the
prosecution of the various counts was so inextricably intertwined that most of [the]
services must be said to be for the construction lien count, as well as other counts."
The trial court awarded the Sabatinos attorney's fees in excess of $118,000 plus costs
in excess of $14,000.1
During the hearing on attorney's fees the Sabatinos called an expert on
legal billing to the stand. The expert testified that he was unable to apportion the
Sabatinos' attorney's time sheet records to the various causes of action raised at trial
because, at least in part, the counts were intertwined. The expert further stated that
"unfortunately all of us tend to throw the kitchen sink at it from a cause of action
standpoint; and if you can not differentiate between those, then you're entitled to claim
that under—in this case, the claim of lien, the cause of action." The Sabatinos' attorney
also testified, stating that "to the greater extent I was not able to determine based on the
billing time entries how to differentiate the various counts."
Crown now challenges the award of attorney's fees and costs.
1
It appears that several efforts were made to resolve the construction lien
claim before trial on the same basis on which it was ultimately decided. We note that
the pretrial resolution of this claim would have resulted in a significantly reduced award
of attorney's fees.
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Analysis
"[T]he party seeking fees has the burden to allocate them to the issues for
which fees are awardable or to show that the issues were so intertwined that allocation
is not feasible." Lubkey v. Compuvac Sys., Inc., 857 So. 2d 966, 968 (Fla. 2d DCA
2003); see also Ocean Club Cmty. Ass'n v. Curtis, 935 So. 2d 513, 517 (Fla. 3d DCA
2006) (holding that the party seeking an award of attorney's fees "bears 'an affirmative
burden to demonstrate what portion of the effort was expended on the claim which
allowed attorney’s fees,' " (quoting Rockledge Mall Assocs., Ltd. v. Custom Fences of
Brevard, Inc., 779 So. 2d 558, 559 (Fla. 5th DCA 2001))). We review whether the
multiple claims are separate or intertwined under the de novo standard of review. See
Ocean Club, 935 So. 2d at 516.
Here the trial court made no factual findings to support its legal conclusion
that the counts were so intertwined as to make individual allocation of fees unfeasible.
Additionally, the limited record before this court does not enable us to resolve that issue
despite the scope of our review. Although the billing expert opined that the counts were
sufficiently intertwined, "[t]he expert's opinion, lacking any factual foundation, was not
competent proof." Lubkey, 857 So. 2d at 968. Therefore, on this record, we cannot
sustain the fee order.
Crown also challenges the award of any costs it claims were not directly
linked to the construction lien count. During the pendency of this appeal, the Supreme
Court of Florida issued its opinion in Trytek v. Gale Industries, Inc., 3 So. 3d 1194 (Fla.
2009). In Trytek, one party prevailed on a construction lien by stipulation before trial but
lost on the sole issue argued at trial. Id. at 1196-97. Each party subsequently claimed
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it was the "prevailing party" for the purpose of determining fees "as part of the prevailing
party's costs," pursuant to section 713.29, Florida Statutes (2005). Id. at 1197. The trial
court applied the "significant issues" test set forth in Prosperi v. Code, Inc., 626 So. 2d
1360 (Fla. 1993), and determined that the party that won the issue argued at trial was
the "prevailing party." Trytek, 3 So. 3d at 1197. The Fifth District reversed, certifying a
question of great public importance. Id. at 1198. On review, the supreme court
quashed the Fifth District's opinion and approved the trial court's use of the Prosperi
"significant issues" test to determine the issue of "prevailing party." Trytek, 3 So. 3d at
1204. In this case, Trytek may impact the trial court's determination of "prevailing party"
and, thus, the propriety of taxation of costs and fees on either party. Therefore, we
must also reverse the award of costs.
Accordingly, we reverse the order on appeal in its entirety. On remand,
the trial court shall hold a new hearing to consider both the application of Trytek to the
facts of the case and to determine whether allocation of fees was appropriate. The trial
court shall make appropriate factual findings to support its conclusions regarding these
matters to ensure a complete record for appellate review. We caution that "[r]egardless
of the expertise of the witness, generally, and his familiarity with legal concepts relating
to his specific field of expertise, it is not the function of the expert witness to draw legal
conclusions. That determination is reserved to the trial court." Palm Beach County v.
Town of Palm Beach, 426 So. 2d 1063, 1070 (Fla. 4th DCA 1983).
Reversed and remanded with instructions.
SILBERMAN and CRENSHAW, JJ., Concur.
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