Tindall v. H&S Homes, LLC et al
Filing
357
ORDER granting in part and denying in part 337 Motion in Limine; granting in part and denying in part 345 Motion in Limine. Ordered by Judge C. Ashley Royal on 8/22/12 (lap)
THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
TERRY CARTRETTE TINDALL,
:
:
Plaintiff,
:
:
v.
:
Civil Action
:
No. 5:10‐CV‐044(CAR)
H & S HOMES, LLC, et. al.,
:
:
Defendants.
:
____________________________________
ORDER ON MOTIONS TO EXCLUDE ATTORNEY
TESTIMONY REGARDING ATTORNEYS’ FEES
Currently before the Court are Defendants’ Motions in Limine [ECF Nos. 337 &
345] to exclude the testimony of Plaintiff’s counsel regarding the amount and
reasonableness of Plaintiff’s attorneys’ fees. Though Defendants do not object to the
relevance of this testimony, Defendants do object to Plaintiff’s late disclosure of
counsels’ intent to testify as to these matters at trial. Defendants contend that the
testimony must be excluded under Rule 26 of the Federal Rules of Civil Procedure.
Defendants are of course correct that the reasonableness and necessity of the
expenses of litigation and attorney fees are matters for expert opinion, and thus, if
allowed to testify, Plaintiff’s attorneys will be offering expert testimony at trial.
American Med. Transp. Grp., Inc. v. Glo‐An, Inc., 235 Ga. App. 464, 466‐67, 509 S.E.2d
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738 (1998). Counsels’ intent to testify at trial should have accordingly been disclosed
pursuant to Rule 26, and an expert report should have been filed. See Fed. R. Civ. P. 26.
This Court, however, has wide discretion to admit expert testimony even though
there has been a failure to comply with Rule 26. See McSweeney v. Kahn, 347 F. App’x
437, 442 (11th Cir. 2009) (citing Evans v. Mathis Funeral Home, Inc., 996 F.2d 266, 268
(11th Cir. 1993)). This is especially true where the failure is justified or the opposing
party will suffer no prejudice as a result of the late admission. See Fed. R. Civ. P. 37(c)(1)
(“[i]f a party fails to provide information or identify a witness as required by Rule 26(a)
or (e), the party is not allowed to use that information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was substantially justified or is
harmless.”). Plaintiff’s failure here is both understandable and harmless.
The Court can understand Plaintiff’s counsel’s assumption that Defendants were
aware of their intent to testify as to attorneys’ fees and that they need not be disclosed as
expert witnesses under Rule 26. Defendants have in fact known about Plaintiff’s
substantive claim for attorneys’ fees under O.C.G.A. § 13‐6‐11 since the very beginning
of this case. The award of attorney fees as damages under this Code section is a jury
question, and thus to prevail on this claim, Plaintiff must “prove the actual costs
incurred and the reasonableness of those costs.” Koncul Enter. Inc. v. Nationscredit Fin.
Svcs. Corp., No. 400CV141, 2001 WL 34052996, at *8 (S.D. Ga. Aug. 13, 2001) (citing Davis
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v. S. Exposition Mgmt. Co., 232 Ga. App. 773, 776, 503 S.E.2d 649 (1998)). To do this,
Plaintiff’s attorneys must present enough evidence to enable Defendants to “confront
and challenge [their] testimony as to the value and need for legal services.” Id. (citing
Oden v. Legacy Ford‐Mercury, Inc., 222 Ga. App. 666, 668, 476 S.E.2d 43 (1996)). This
requires that the evidence be “sufficiently particular” and include (1) a “description of
services performed, and the corresponding time spent performing those services; (2) a
showing that “the fees sought are sufficiently allocated between successful and
unsuccessful claims”; and (3) “evidence showing the reasonableness of the
fees/expenses.” Koncul, 2001 WL 34052996 at *8.
This showing may naturally require the presentation of evidence and testimony
from Plaintiff’s attorneys at the second stage of the trial. See id.; Sims v. GT Architecture
Contractors Corp., 292 Ga. App. 94, 96, 663 S.E.2d 797 (2008) (award of fees under § 13–
6–11 “cannot stand where the plaintiff fails to prove the actual costs of his attorneys and
the reasonableness of those costs”). Thus, Defendants should not have been extremely
surprised that Plaintiff’s attorneys intended to testify about these matters at trial. See
McSweeney, 347 F. App’x at 442. The practice is apparently not unusual in state court.
See e.g., Terrell v. Pippart, 314 Ga. App. 483, 484‐85, 724 S.E.2d 802 (2012) (finding error
in the award of fees where plaintiff’s “counsel testified only to his total fees” and did not
delineate the amount of time spent on the one successful cause of action); 4WD Parts
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Ctr., Inc. v. Mackendrick, 260 Ga. App. 340, 345, 579 S.E.2d 772 (2003) (upholding award
of fees where plaintiffʹs attorney offered evidence at trial concerning attorney fees and
defendant cross‐examined plaintiffʹs attorney about his rates and number of hours
worked on case). Plaintiff’s attorneys are certainly the most qualified witnesses to
testify as to the amount and value of the legal services they provided. See id.
Moreover, this is one of those cases where Georgia substantive law and the
Federal Rules collide, which may have created further procedural confusion for
Plaintiff’s counsel. The Federal Rules of Procedure do not expressly contemplate this
type of expert testimony because the amount of attorney’s fees is not generally a jury
question in federal court. On the other hand, if Plaintiff’s attorneys were to submit
expert reports at the start of this case, as required by Rule 26, the report would contain
little relevant information and would not represent the testimony to be given at trial.
Unlike other types of expert testimony, any opinion offered as to the amount or
reasonableness of the fees charged cannot be formed until the case is largely completed
and those expenses have been incurred.
For this reason, the Court also finds that Defendants will not be prejudiced by the
late disclosure. Again, though the claim for attorneysʹ fees has been part of the case
since it was filed, Plaintiff’s attorneys are just now in a position to provide Defendants
with an accurate accounting of the pre‐trial fees incurred. And, because this testimony
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will not be offered until the damages phase of the trial, Defendants have sufficient time
to review any evidence produced by Plaintiff’s attorneys and to take their depositions if
necessary.
Defendants’ Motions in Limine are thus DENIED in part and GRANTED in part.
They are DENIED to the extent that Defendants sought exclusion of the testimony and
leave to file a Daubert motion, but GRANTED as to Defendants’ request for leave to
conduct additional discovery. Plaintiff’s attorneys Richard Lovelace, Peter Hearn, and
Ken Hall shall provide Defendants with their expert reports as required by Rule 26 and
make themselves available for deposition if necessary.
It is SO ORDERED this 22nd day of August, 2012.
S/ C. Ashley Royal
C. ASHLEY ROYAL, JUDGE
UNITED STATES DISTRICT COURT
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