MARTIN E. O'BOYLE v. TOWN OF GULF STREAM

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

MARTIN O’BOYLE,

Appellant,

v.

TOWN OF GULF STREAM,

Appellee.

No. 4D21-972

[June 1, 2022]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm

Beach County; Glenn Kelley, Judge; L.T. Case No. 502014CA008076.

Jonathan R. O’Boyle of The O’Boyle Law Firm, P.C., Deerfield Beach,

for appellant.

Jeffrey L. Hochman and Hudson C. Gill of Johnson, Anselmo, Murdoch,

Burke, Piper & Hochman, P.A., Fort Lauderdale, for appellee.

GROSS, J.

Section 119.12, Florida Statutes (2014), 1 provides that in a civil action

where a court determines that an agency has “unlawfully refused to permit

a public record to be inspected or copied, the court shall assess and award,

against the agency responsible, the reasonable costs of enforcement

including reasonable attorneys’ fees.”

This case addresses the scope of the phrase “reasonable costs of

enforcement.” We hold that the statute does not provide for (1) an award

1 In their briefs, the parties quote language from the current version of section

119.12, but the civil action in this case originated under the 2014 version of the

statute. The amended version of section 119.12 applies only to public records

requests made on or after May 23, 2017. See Ch. 2017-21, § 2, Laws of Fla., eff.

May 23, 2017.

of attorney’s fees for litigating the amount of fees or (2) an award of fees

attributable to the non-testifying associates of an attorney fee expert. 2

The Pleadings and Entry of a Final Judgment

Appellant Martin O’Boyle sent a public records request to the Town of

Gulf Stream on June 17, 2014. Two days later, the Town produced three

documents in response to the request.

On July 3, 2014, appellant filed a pro se complaint alleging that the

Town had unlawfully withheld public records. The O’Boyle Law Firm

entered an appearance as counsel of record for appellant a few weeks later.

On January 13, 2017, the Town produced additional public records in

response to a discovery request.

Ultimately, the circuit court entered a Consent Final Judgment on

December 18, 2018, finding that the Town’s initial response to the public

records request was incomplete, “thereby entitling [appellant] to recover

from the Town [his] reasonable costs of enforcement, including reasonable

attorneys’ fees” under section 119.12 of the Public Records Act.

The Attorney’s Fee Hearing

Appellant moved for an award of his reasonable costs of enforcement,

including attorney’s fees and costs.

The Town sought a substantial reduction in fees, arguing in part that

because appellant “received all of the responsive records by January 13,

2017,” no attorney’s fees should be awarded for work performed after that

date.

At the fee hearing, appellant’s expert witness, attorney Eugene Pettis,

testified to the reasonableness of the fees and costs for enforcing

appellant’s rights under the Public Records Act. After reviewing the billing

records and making some reductions, Mr. Pettis opined that the total fees

reasonably incurred for representing appellant in this matter through

January 2019 totaled $92,489.90.

2We do not reach the issue of whether the trial court erred in failing to make

specific findings regarding the court’s decision not to apply a multiplier to the fee

award. Our examination of the record reveals that this argument was not

adequately preserved below.

2

The Town’s expert witness, Matthew Mandel, presented two models for

the reasonable cost of enforcement. Under the first model, fees would be

cut off as of January 13, 2017, the date by which all the responsive public

records had been produced, resulting in $4,923.94 as the amount for the

reasonable costs of enforcement. Mandel opined that appellant was “not

entitled to any fees after the production of the documents,” reasoning that

“the costs of enforcement after production is not awardable.” Under the

second model, Mandel’s alternative opinion, fees would be recoverable

until the date of the consent judgment.

The Attorney’s Fee Award

The court rejected the Town’s argument that the cutoff date for

recoverable fees was when the last responsive documents were turned over

to appellant. The court ruled that appellant was “entitled to costs of

enforcement (attorney’s fees) through the conclusion of the case.”

Given that demarcation for recoverable attorney’s fees, the court

awarded appellant $64,552.65, together with $110 in costs. The court

declined to award a fee multiplier. Later, the court entered an Agreed

Judgment awarding appellant an additional $6,897 in attorney’s fees plus

interest, bringing the total fee award to $76,328.68.

In this judgment, the court reserved jurisdiction to determine the

reasonable costs to be awarded for the services of appellant’s expert

witness.

The Award of Expert Costs

At the hearing on expert costs, Pettis testified that his rate in the

retainer agreement was $600 an hour. He was assisted by two experienced

associates at $495 an hour and a paralegal at $150 an hour. To be cost

efficient, he delegated document review tasks to the individuals with a

lower hourly rate.

Following the hearing, the trial court entered its Order on Expert Fees.

The court awarded appellant “all fees for time personally spent by Pettis in

rendering an opinion in this case.” Because the Town did not “contest the

fee sought by Pettis for the time that he spent personally working on this

case,” the discrete issue before the court was “whether time spent by

associate attorneys working for Pettis can be charged, or taxed, to the

[Town].”

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The court ruled that appellant could not recover fees for the time spent

by Pettis’s non-testifying associates.

Under Section 119.12, Florida Statutes (2014),

Appellant is Not Entitled to Recover Attorney’s Fees for

Litigating the Amount of the Fee Award

Appellant argues that he should have been awarded fees for the post-

judgment litigation directed at the amount of fees to be awarded.

We conclude that section 119.12 does not authorize an award of fees

for litigating the amount of the fee award.

A claim for attorney’s fees pursuant to a statute has three potential

components: (1) time spent litigating the case on the merits; (2) time spent

litigating entitlement to attorney’s fees; and (3) time spent litigating the

amount of attorney’s fees. See Mallas v. Mallas, 326 So. 3d 704, 705 (Fla.

4th DCA 2021). The term “fees for fees” is shorthand for time spent

litigating the amount of attorney’s fees. Id.

The operative fee statute in this case, section 119.12, Florida Statutes

(2014), mandates an award of the reasonable costs of enforcement,

including attorney’s fees, if a party brings a civil action against an agency

“to enforce the provisions of this chapter” and if the court determines that

the agency unlawfully refused to permit a public record to be inspected or

copied. The statute provides:

If a civil action is filed against an agency to enforce the

provisions of this chapter and if the court determines that

such agency unlawfully refused to permit a public record to

be inspected or copied, the court shall assess and award,

against the agency responsible, the reasonable costs of

enforcement including reasonable attorneys’ fees.

§ 119.12, Fla. Stat. (2014).

In construing section 119.12 we have tacked closely to the statutory

language. Thus, in News & Sun-Sentinel Co. v. Palm Beach County, 517

So. 2d 743 (Fla. 4th DCA 1987), we held that attorney’s fees are

recoverable under section 119.12 where access to public records is denied

based upon a good faith but mistaken belief that the documents involved

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are exempt from disclosure. 3 In refusing to engraft a “good faith” exception

onto the statute, we reasoned:

Clarification of particular applications of the public records

law accrues to the benefit of the agency and the public. It is

appropriate that a member of the public commencing

litigation to enforce disclosure and whose right to disclosure

is ultimately vindicated by court order at least have his

attorney’s fees reimbursed for that endeavor. The public

should not be required to underwrite clarification of a law

passed for its special benefit.

Id. at 744.

In considering different but similar statutory language providing for an

award of attorney’s fees, the Florida Supreme Court did not stretch the

statute to include an award of “fees for fees.”

Thus, in State Farm Fire & Casualty Co. v. Palma, 629 So. 2d 830, 833

(Fla. 1993), the court held that attorney’s fees may properly be awarded

under section 627.428 for litigating the issue of entitlement to attorney’s

fees, but not for litigating the amount of attorney’s fees. The court

reasoned that such work “inures solely to the attorney’s benefit.” Id. The

court distinguished section 627.428 from statutory fee authorizations

designed to encourage attorneys to represent indigent clients, emphasizing

that both the language and the purpose of section 627.428 supported its

conclusion. The court observed that “[i]f the scope of section 627.428 is

to be expanded to include fees for time spent litigating the amount of

attorney’s fees, then the Legislature, rather than this Court, is the proper

party to do so.” Id.

Florida courts have broadly applied Palma to bar “fees for fees” in many

contexts other than section 627.428. See, e.g., Mediplex Constr. of Fla.,

Inc. v. Schaub, 856 So. 2d 13, 14–15 (Fla. 4th DCA 2003); N. Dade Church

of God, Inc. v. JM Statewide, Inc., 851 So. 2d 194, 196 (Fla. 3d DCA 2003);

Oruga Corp. v. AT&T Wireless of Fla., Inc., 712 So. 2d 1141, 1145 (Fla. 3d

DCA 1998).

3 The Florida Supreme Court later disapproved of News & Sun-Sentinel to the

extent that the decision “would permit the award of attorney’s fees under section

119.12(1) without a determination that the refusal was unlawful.” N.Y. Times Co.

v. PHH Mental Health Servs., Inc., 616 So. 2d 27, 30 (Fla. 1993).

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We have distinguished Palma and authorized awards of “fees for fees”

only in limited contexts, including: (1) when fees are awarded under

section 61.16, which affords trial courts wide discretion to fashion a fee

award in family law cases, see Schneider v. Schneider, 32 So. 3d 151, 158

(Fla. 4th DCA 2010); (2) when a contract is broad enough to encompass

such an award, see Waverly at Las Olas Condo. Ass’n v. Waverly Las Olas,

LLC, 88 So. 3d 386, 389 (Fla. 4th DCA 2012); and (3) when the fees are

awarded as a sanction under the “inequitable conduct doctrine,” see

Bennett v. Berges, 50 So. 3d 1154, 1161 (Fla. 4th DCA 2010).

In Mallas, we emphasized that an award of “fees for fees” is an exception

to the general rule refusing to allow “fees for fees” under general statutory

language. 326 So. 3d at 706–07. There, we held that the fee provision in

the civil theft statute cannot support an award of “fees for fees” because

the statute’s language “is not as broad as the contractual language in

Waverly and does not afford the court as much discretion as the statutory

language in Schnieder.” Id. at 707. We reasoned that “[a]ny extension of

that statute to provide for the award of those litigation fees should come

from the legislature, and not this court.” Id.

One appellate case, construing an earlier version of section 119.12,

declined to award “fees for fees.” In Downs v. Austin, 559 So. 2d 246 (Fla.

1st DCA 1990), a pre-Palma case, the court construed section 119.12(1),

Florida Statutes (1985), which is nearly identical to the 2014 version of

section 119.12. One of the holdings of Downs is that “[n]o fee is authorized

for efforts expended to obtain the statutory fee.” Id. at 248.

Although Downs is arguably inconsistent with Palma’s reasoning to the

extent that Downs disallows fees for efforts expended to establish

entitlement to the statutory fee under section 119.12, Downs clearly bars

an award of fees expended to litigate the amount of the statutory fee.

In the years following Downs, the legislature has amended section

119.12 twice; neither amendment addressed the issue of “fees for fees.”

See Ch. 2004-335, § 13, Laws of Fla. (deleting the following language from

the statute: “(2) Whenever an agency appeals a court order requiring it to

permit inspection of records pursuant to this chapter and such order is

affirmed, the court shall assess a reasonable attorney’s fee for the appeal

against such agency.”); Ch. 2017-21, § 1, Laws of Fla., (amending the fee

statute to include, among other things, a pre-suit notice requirement and

a prohibition on an award of attorney’s fees to the complainant if the court

determines the request was for an improper purpose).

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We thus approach the 2014 version of section 119.12 against a legal

backdrop that limits those situations where a statute is read to allow fees

for litigating the amount of attorney’s fees. The general rule in Florida is

that attorney’s fees may not be awarded for litigating the amount of the

fees. Nothing in the text of section 119.12 suggests that we should deviate

from the general rule.

We reject appellant’s textual argument that “fees for fees” are

authorized because section 119.12 mandates attorney’s fees for enforcing

the “provisions” of Chapter 119, and 119.12 is one such “provision.” We

do not read the use of the plural word “provisions” as reflecting a legislative

intent to allow “fees for fees.”

Section 119.12 states that in a civil action “to enforce the provisions of

this chapter,” the “reasonable costs of enforcement” shall be assessed

against an agency if the court determines that the agency unlawfully

refused a public records request. § 119.12, Fla. Stat. (2014) (emphasis

added). Black’s Law Dictionary defines “enforce” as “[t]o give force or effect

to (a law, etc.); to compel obedience to.” Enforce, Black’s Law Dictionary

(11th ed. 2019). And “enforcement” is defined as “[t]he act or process of

compelling compliance with a law, mandate, command, decree, or

agreement.” Enforcement, Black’s Law Dictionary (11th ed. 2019).

The statutory reference to an action “to enforce the provisions of this

chapter” means an action to compel the agency’s compliance with the

provisions of Chapter 119. Chapter 119 concerns the disclosure of public

records. An action under Chapter 119 does not seek to compel the

agency’s compliance with section 119.12 itself. Section 119.12 is not a

mandate directed to the agency; it is a fee-shifting provision that applies

when an agency violates another provision in Chapter 119. Unlike other

provisions of Chapter 119, an agency cannot “violate” section 119.12.

The word “provisions” in section 119.12 is best understood as a generic

plural term with no added significance regarding “fees for fees.” As the

Town points out, the identical plural language is used elsewhere in another

portion of the statute that has nothing to do with attorney’s fees. See §

119.11(1), Fla. Stat. (2014) (“Whenever an action is filed to enforce the

provisions of this chapter, the court shall set an immediate hearing . . . .”).

Significantly, the legislature has not acted since Downs or Palma to

address the issue of “fees for fees” under section 119.12. This long-term

legislative inaction weighs against construing the statute as authorizing

“fees for fees.” See Goldenberg v. Sawczak, 791 So. 2d 1078, 1081 (Fla.

2001) (“Long-term legislative inaction after a court construes a statute

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amounts to legislative acceptance or approval of that judicial

construction.”).

Section 119.12 is a sufficient deterrent to noncompliance with public

records requests without interpreting it as authorizing an award of “fees

for fees.” As the Palma court reasoned, litigating the amount of attorney’s

fees inures solely to the attorney’s benefit. 629 So. 2d at 833. Injecting a

“fees for fees” component into the statute would increase needless

litigation, rather than deter it.

Finally, we reject appellant’s argument that the dispute over the cutoff

date for attorney’s fees should be deemed litigation over the entitlement to

fees rather than litigation over the amount of fees. 4 We see the dispute

over the time frame for the fee award as a dispute over the amount of fees,

for which additional attorney’s fees are not recoverable. The consent

judgment had already determined that appellant was entitled to the

“reasonable costs of enforcement.”

The Trial Court Properly Limited Expert Witness Costs

to Those Attributable to the Testifying Expert

Appellant next argues that the trial court erred in refusing to award the

costs incurred for associates and paralegals who assisted the testifying fee

expert in preparing his testimony for the fee hearing.

We hold that no authority permits awarding an expert witness fee for

time spent by the fee expert’s non-testifying assistants to prepare the

expert to testify.

“Costs are taxable only where authorized by statute or rule.” Junkas v.

Union Sun Homes, Inc., 412 So. 2d 52, 53 (Fla. 5th DCA 1982).

Section 92.231(2), Florida Statutes (2020), governs expert witness fees

and provides that “[a]ny expert or skilled witness who shall have

testified in any cause shall be allowed a witness fee . . . and the same

shall be taxed as costs.” (Emphasis added). Additionally, under Florida

Rule of Civil Procedure 1.390(c), “[a]n expert or skilled witness whose

deposition is taken shall be allowed a witness fee,” which “may be taxed

as costs.”

4 Similarly, we reject appellant’s argument that he should receive fees for

obtaining a clarification of Chapter 119 with respect to the cutoff date for the

reasonable costs of enforcement.

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Although “some courts had modified [section 92.231] by judicial fiat to

allow expert witness fees only when the expert testifies as to the main

issues as opposed to collateral issues in a case,” the Florida Supreme

Court ultimately rejected this approach. Travieso v. Travieso, 474 So. 2d

1184, 1185 (Fla. 1985). In Travieso, our supreme court held that

“pursuant to section 92.231, expert witness fees, at the discretion of the

trial court, may be taxed as costs for a lawyer who testifies as an expert as

to reasonable attorney’s fees.” Id. at 1186. Still, Travieso makes clear that

such a discretionary award is limited to a lawyer “who testifies as an

expert.” Id.

Similarly, the advisory Statewide Uniform Guidelines for Taxation of

Costs in Civil Actions draws a distinction between testifying and non-

testifying experts. See Fla. R. Civ. P. App. II. Under the Guidelines,

litigation costs for an expert witness should be taxed for “[a] reasonable

fee for deposition and/or trial testimony, and the costs of preparation of

any court ordered report.” Fla. R. Civ. P. App. II, § I.C.1. By contrast, the

Guidelines provide that any expenses relating to consulting but non-

testifying experts should not be taxed as costs. Fla. R. Civ. P. App. II, §

III.B.

Consistent with section 92.231(2) and the Guidelines, the general rule

in Florida is that “[i]t is not appropriate to tax as costs the fees of witnesses

who are neither qualified as experts by the court nor testify at trial.”

Thellman v. Tropical Acres Steakhouse, Inc., 557 So. 2d 683, 684 (Fla. 4th

DCA 1990); see also Universal Prop. & Cas. Ins. Co. v. Deshpande, 314 So.

3d 416, 422 (Fla. 3d DCA 2020) (reversing the costs awarded to the

“[p]laintiff’s experts who never testified at trial and who were never

deposed”); In re Est. of Assimakopoulos, 228 So. 3d 709, 716 (Fla. 2d DCA

2017) (“[S]ection 92.231(2) permits an award of an expert witness fee only

to an expert who ‘shall have testified in any cause,’ and it is undisputed

that neither Baskin nor Fernald testified at the sanctions hearing.”);

Woodbridge Holdings, LLC v. Prescott Grp. Aggressive Small Cap Master

Fund, 193 So. 3d 2, 4 (Fla. 4th DCA 2015) (reversing an award of fees for

an expert who did not testify at trial); KMS of Fla. Corp. v. Magna Props.,

Inc., 464 So. 2d 234, 235 (Fla. 5th DCA 1985) (reversing an expert witness

fee where “no expert witness testified for appellee,” as section 92.231

allows an expert witness fee only for an expert who shall have testified).

Appellant cites case law for the generic proposition that “[a]n expert

witness is permitted to use assistants in formulating his expert opinion.”

Dura Auto. Sys. of Ind., Inc. v. CTS Corp., 285 F.3d 609, 612 (7th Cir. 2002).

However, appellant has cited no Florida cases that allowed an expert

9

witness fee to include time spent by others to assist the expert in preparing

to testify.

In fact, we recently addressed a similar issue and held that a trial court

“could not tax costs for the time expended by the two attorneys who

prepared the expert for deposition because neither attorney testified by

deposition nor qualified as an expert.” Fischer as Tr. of Dorothy L. Fischer

Tr. v. Fischer as Co-Tr. of Dorothy L. Fischer Tr., 332 So. 3d 516, 521 (Fla.

4th DCA 2021).

We have found no statute or rule which authorizes costs associated

with a fee expert’s non-testifying assistants to be taxed as costs. Section

92.231(2) authorizes an award of an expert witness fee to an expert who

“shall have testified in any cause.” The express language of the statute

does not extend to the expert’s non-testifying assistants. We do not read

the general language of section 119.12—“reasonable costs of

enforcement”—as expanding upon the specific language in section

92.231(2). Rather, reading the two statutes together, we conclude that

only an expert witness fee authorized under section 92.231(2) qualifies as

a reasonable cost of enforcement under section 119.12.

Finally, we reject appellant’s argument that the fees attributable to the

expert’s assistants are recoverable under section 57.104, Florida Statutes

(2020). Section 57.104 provides that the court shall consider the “time

and labor of any legal assistants” in computing an award of attorney’s fees.

Id. Appellant bases his argument upon the characterization of Pettis’s

testimony as being “in the nature of an attorney’s fee.” We agree with the

Second District that “the fee charged by a lawyer to appear as an expert

witness is considered a cost, not an attorney’s fee, and it is awardable only

when costs are properly awarded.” Assimakopoulos, 228 So. 3d at 713.

We affirm the trial court’s conclusion that it would be improper to tax

as costs the fee of assistants who were not qualified by the court as experts

and who did not testify.

Affirmed.

GERBER and ARTAU, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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