Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JILL R.C. BUZBY, individually, and GARY L. CHRISTENSEN, individually, Appellants, v. TURTLE ROCK COMMUNITY ASSOCIATION, INC., a Florida corporation; and JAMES L. ESSENSON, Appellees. No. 2D21-1377 January 5, 2022 Appeal from the Circuit Court for Sarasota County; Stephen Walker, Judge. David J. Fredericks of Anderson, Givens & Fredericks, P.A., Sarasota, for Appellants. James L. Essenson, Barbara J. Welch, and Matthew J. Kelley of Essenson Law Firm, Sarasota, for Appellee James L. Essenson. No appearance for remaining Appellee. KHOUZAM, Judge. Gary L. Christensen and Jill R.C. Buzby appeal a final judgment incorporating a protective order awarding their former attorney James L. Essenson an expert witness fee and his expenses incurred in obtaining the protective order. Because Mr. Essenson was a fact witness who did not give expert testimony, he was not entitled to an expert witness fee or to the expenses he incurred in persuading the trial court that he was. We accordingly reverse. BACKGROUND Mr. Christensen and Ms. Buzby (collectively, the Clients) were the plaintiffs in a 2013 lawsuit that resulted in a 2018 judgment in their favor. During the course of that litigation, the Clients were represented by various attorneys and law firms, including by Mr. Essenson and his law firm from 2014 to 2016. As the prevailing parties, the Clients pursued a postjudgment claim for attorney's fees and costs. To streamline the evidentiary process and minimize the burden on prior counsel, the Clients' counsel in the fees proceeding prepared affidavits setting forth the salient facts for the fees claim such as the attorneys involved, the work performed, and the hourly rates. The Clients' counsel in the 2 fees proceeding sent these proposed affidavits to the former attorneys for their review and, if accurate, execution. Apparently without issue, each of the Clients' former attorneys executed the affidavits establishing the facts of their representation, except for Mr. Essenson. Instead, he ignored the requests for weeks, then directed another attorney at his firm to tell the Clients' counsel that he refused to execute any affidavit for them. According to Mr. Essenson, the Clients had not paid his fees and had complained to The Florida Bar about his representation. Having been notified that Mr. Essenson refused to execute any affidavit, the Clients' counsel served a subpoena upon Mr. Essenson to appear at a deposition to establish the factual basis for the component of the Clients' fees claim attributable to his firm's work. In response, Mr. Essenson moved for a protective order asserting, among other things, that he was entitled to compensation as an expert witness under Florida Rule of Civil Procedure 1.390 for attending the deposition. The deposition occurred before Mr. Essenson's motion was heard. At the later hearing on the motion for protective order, Mr. Essenson conceded that the Clients had offered to pay him for his 3 attendance, but he had rejected the offer as "nominal." Instead, he asserted he was entitled under rule 1.390 "to be paid at my regular hourly rate for attending the deposition," which had lasted roughly 1.5 hours including round-trip travel. He also claimed entitlement under rule 1.380(a)(4) to the expenses he incurred in bringing the motion. According to Mr. Essenson, he qualified as an expert under rule 1.390 simply because he was a professional who had been called to testify about his work. He claimed that treating physicians "always get paid" expert fees and reasoned that, as an attorney who represented the Clients, he should be compensated for the same reason: Our position is that, you know, we're entitled to get paid; I'm entitled to get paid as a skilled witness; I'm there because I represented him. I've had many, many cases where doctors have been involved. If the doctor is a treating physician, you could argue he's a fact witness. If he's not your, quote-unquote, expert, they always get paid. They get paid their doctor rates, and we should get paid our lawyer rates. In response, the Clients' counsel readily acknowledged that, as an experienced attorney, Mr. Essenson was qualified to give expert opinions on legal matters. Nonetheless, Mr. Essenson's testimony 4 was merely factual, and he was deposed only because he had expressly refused to execute any affidavit to develop the factual basis for the prevailing party fees claim. The trial court orally granted Mr. Essenson's motion. As the court put it: "You asked a lawyer to show up and talk about his lawyering, and that's expert testimony; he should have been paid for his time." The court thus awarded Mr. Essenson an expert fee under rule 1.390 for his time at the deposition and also granted him entitlement under rule 1.380 to the fees he incurred in bringing the motion for protective order. At the hearing on the Clients' claim for prevailing party fees, Mr. Essenson's deposition transcript was offered in parallel to the other former attorneys' affidavits. The Clients presented the opinions of a separate expert regarding the reasonableness of the hours billed and the hourly rates charged, including by Mr. Essenson's firm. The trial court later entered an order awarding the Clients attorney's fees and costs pursuant to their prevailing party claim. After the court reduced to writing its oral ruling granting Mr. Essenson's motion for protective order, the Clients moved for 5 rehearing. The trial court held another hearing, but ultimately denied relief, finding no basis to alter the ruling. The court then entered a final judgment expressly incorporating the terms of the protective order. The Clients appealed. ANALYSIS As the parties expressly acknowledge, this is a case of "bad blood." Even though the legal analysis is clear, the parties have caused the expenditure of substantial resources in both the trial and appellate courts—including multiple hearings below and full briefing and oral argument in this court—to adjudicate a squabble over compensation for 1.5 hours of work. Nonetheless, we must reverse because Mr. Essenson was not entitled to an expert witness fee or to his expenses in seeking one. "The ruling on a motion for protective order is reviewed for abuse of discretion." Savannah Cap., LLC v. Pitisci, Dowell & Markowitz, 313 So. 3d 953, 956 (Fla. 2d DCA 2021) (quoting State Farm Fla. Ins. Co. v. Lime Bay Condo., Inc., 187 So. 3d 932, 936 (Fla. 4th DCA 2016)). An abuse of discretion occurs where the trial court's "ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence." Rush v. Burdge, 141 6 So. 3d 764, 766 (Fla. 2d DCA 2014) (quoting McDuffie v. State, 970 So. 2d 312, 326 (Fla. 2007)). Florida Rule of Civil Procedure 1.390 "provides for a fee to an expert witness whose deposition is taken." In re Estate of Assimakopoulos, 228 So. 3d 709, 716 (Fla. 2d DCA 2017). The rule defines an "expert witness" as "a person duly and regularly engaged in the practice of a profession who holds a professional degree from a university or college and has had special professional training and experience, or one possessed of special knowledge or skill about the subject upon which called to testify." Fla. R. Civ. P. 1.390(a). The Florida Supreme Court has acknowledged that testimony by professionals can "blur[] the boundary between fact testimony and expert testimony" where " 'scientific, technical, or other specialized knowledge' . . . informs their testimony." Gutierrez v. Vargas, 239 So. 3d 615, 622 (Fla. 2018) (quoting § 90.702, Fla. Stat. (2017)). In the context of treating physicians, the court explained: While an expert witness assists the jury to understand the facts, a treating physician testifies as a fact witness "concerning his or her own medical performance on a particular occasion and is not opining about the medical performance of another." Fittipaldi 7 USA, Inc. v. Castroneves, 905 So. 2d 182, 186 (Fla. 3d DCA 2005). This necessarily involves testifying with regard to the exercise of the treating physician's specialized medical knowledge as applied to other facts of the case, namely the plaintiff's symptoms. A treating physician is a fact witness, and testifies to past facts based on personal knowledge. Those facts involve a technical matter about which the jury lacks basic knowledge, but they are facts nonetheless. The treating physician's perception of the plaintiff's symptoms, their diagnostic opinion, and their recommendation of a particular treatment are all facts in issue. 239 So. 3d at 622 (emphasis added; second citation omitted). This distinction between testimony (i) describing historical facts from personal knowledge and (ii) evaluating the work of others is not limited to doctors; it applies to attorneys as well. See Fittipaldi, 905 So. 2d at 185 ("While attorney Miller properly testified as a fact witness concerning the course of action he took on behalf of Castroneves, his testimony regarding the legal quality of Castroneves' prior agreements crossed the line into expert testimony."). Thus, the question of whether a witness testifies as an expert—and is thereby entitled to an expert fee—depends not only on the witness's credentials, but also on whether the witness actually gives expert testimony. See, e.g., Santa Lucia v. Diaz, 224 8 So. 3d 916, 916-17 (Fla. 2d DCA 2017) (affirming denial of expert fees for treating doctors who provided only factual testimony but remanding for award of expert fee to doctor who provided expert opinion testimony); Field Club, Inc. v. Alario, 180 So. 3d 1138, 1141 (Fla. 2d DCA 2015) (noting that, for purpose of expert witness fee, doctor "could properly be considered an expert witness because, even though he was [appellee's] treating doctor, he also gave his expert opinions on her injuries and their significance"). In light of this settled law, the trial court's abridged analysis that the Clients "asked a lawyer to show up and talk about his lawyering, and that's expert testimony," was erroneous. In particular, the court failed to address the crucial question of whether the witness actually gave an expert opinion. Mr. Essenson did not. Thus, Mr. Essenson's analogy to testifying doctors is appropriate, but it precludes his entitlement to the fee. Like a treating physician, Mr. Essenson testified to facts within his personal knowledge about acts that he either took or supervised. He was neither called upon to, nor did he, give an expert opinion or evaluate the performance of others. Even though the acts he 9 described involved technical matters, Mr. Essenson's recollections of them "are facts nonetheless." Gutierrez, 239 So. 3d at 622. In support of his position that he is entitled to an expert fee, Mr. Essenson relies on a single statement he made at the deposition: that his "work was reasonable and necessary for" the representation.1 But he was not asked that particular question, nor, in any event, would his opinion about his own work have been sufficient to support the fees claim. See, e.g., Raff v. Citimortgage, Inc., 272 So. 3d 859, 859 (Fla. 2d DCA 2019) ("[A]n award of attorney's fees must be supported by expert testimony from attorneys who are not involved in the case." (emphasis added)). Mr. Essenson's decision to volunteer an opinion about his own work did not transform the nature of the deposition or his purpose for testifying. Because Mr. Essenson was clearly not entitled to an expert witness fee, it follows that he also was not entitled to the expenses 1 The motion for protective order was filed before the deposition occurred, so this yet-unmade assertion could not have formed a good faith basis for it. Indeed, even during the deposition, Mr. Essenson testified that he still did not know why he had received a subpoena, other than "there's a fee issue" in the case. 10 he incurred in bringing the motion seeking it. At a minimum, the Clients' opposition to the legally meritless request for an expert fee was "substantially justified." See Fla. R. Civ. P. 1.380(a)(4); see also Fed. Express Corp. v. Sims, 265 So. 3d 637, 639 (Fla. 4th DCA 2019) (reversing portion of order directing payment of attorney's fees under rule 1.380(a)(4) where the opposition to underlying discovery motion was substantially justified). We accordingly reverse the final judgment to the extent it incorporates the ruling granting the motion for protective order, both with respect to the expert fee and the expenses for bringing the motion. The final judgment is otherwise affirmed. Affirmed in part and reversed in part. MORRIS, C.J., and ROTHSTEIN-YOUAKIM, J., Concur. __________________________ Opinion subject to revision prior to official publication. 11