Westaway v. Wells Fargo Bank, N.A. ( 2017 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
DEBRA WESTAWAY, )
)
Appellant, )
)
v. ) Case No. 2D16-3683
)
WELLS FARGO BANK, N.A., as )
trustee for Carrington Mortgage Loan )
Trust, Series 2007-RFC1, Asset-Backed )
Pass Through Certificates, )
)
Appellee. )
)
Opinion filed September 1, 2017.
Appeal from the Circuit Court for Pinellas
County; Kathleen T. Hessinger, Judge.
Robert E. Biasotti, of Biasotti Law, St.
Petersburg, for Appellant.
Nancy M. Wallace, of Akerman LLP,
Tallahassee; William P. Heller, of Akerman
LLP, Fort Lauderdale, and Eric M. Levine,
of Akerman LLP, West Palm Beach, for
Appellee.
ROTHSTEIN-YOUAKIM, Judge.
Debra Westaway appeals the trial court's Final Judgment of Attorneys'
Fees and Costs in a foreclosure action brought against her by Wells Fargo Bank, N.A.
Westaway argues that the trial court abused its discretion in (1) sua sponte reducing her
attorneys' reasonable hourly rate, (2) reducing the paralegal time billed by her attorneys,
and (3) refusing to award a contingency multiplier. After the benefit of oral argument,
we agree that the court abused its discretion in reducing her attorneys' reasonable
hourly rate, and we reverse and remand for the trial court to recalculate its award of
attorneys' fees based on the rate that Westaway's attorneys originally requested. In all
other respects, we affirm.
Prior Proceedings
In 2009, Wells Fargo, acting as trustee of a real estate investment trust,
filed a foreclosure complaint against Westaway. After five years of litigation, Westaway
obtained an order of involuntary dismissal against Wells Fargo's claim. This court
affirmed the involuntary dismissal on direct appeal. Wells Fargo Bank, N.A. v.
Westaway, 182 So. 3d 653 (Fla. 2d DCA 2015) (table decision).
After prevailing in the underlying foreclosure case, Westaway moved for
attorneys' fees, costs, and a contingency risk multiplier. The trial court concluded that
Westaway was entitled to fees, but, before the court could determine a reasonable
amount, Wells Fargo's counsel moved to withdraw. Accordingly, the trial court gave
Wells Fargo thirty days to retain new counsel.
When the time came for the hearing on the amount of fees, however,
Wells Fargo was neither present nor represented. Thus, there was no opposing party to
dispute any of the evidence that Westaway's counsel presented. In addition, the judge
presiding over the hearing was not the judge who had determined Westaway's
entitlement to fees. Westaway's attorneys requested a lodestar award based on an
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hourly rate of $325. In support of that request, an experienced foreclosure defense
attorney, appearing as an expert witness, testified that such a rate was reasonable.
The trial court asked the expert witness how Westaway's attorneys could
charge a rate of $325 an hour given that they had only had two years of experience
when they had taken the case. The expert witness answered, "I think that is what
attorneys are charging, your Honor." Incredulous, the court mused, "$325 for a two-
year lawyer[?]" The expert witness responded that he knew the "success rate" of
Westaway's counsel and that they were "certainly worth $325 an hour."
At the conclusion of Westaway's evidence, the trial court made a lengthy
oral ruling, chastising Westaway's attorneys for what the court perceived as (1)
overbilling secretarial work by labeling it as paralegal work and (2) requesting a
contingency multiplier in a case where a multiplier was unwarranted. With respect to
the hourly rate, the court again expressed personal disbelief that attorneys with two
years of experience could reasonably command $325 an hour and noted that, as the
fact finder, it was not required to accept the expert's testimony "as gospel." On June 9,
2016, the trial court rendered its Final Judgment of Attorneys' Fees and Costs.
Paragraph two of the judgment provides, in pertinent part:
2. Pursuant to the factors to be considered in
determining the reasonableness of the attorneys' fees
outlined in Rule 4-1.5, Florida Bar Rules of Professional
Conduct, and under Florida Patient's Compensation Fund v.
Rowe, 472 So. 2d. 1145 (Fla. 1985), the rate of $200 per
hour from August 4, 2010, through December 21, 2012, and
the rate of $250.00 an hour from January 2013 through the
conclusion of this matter is a reasonable hourly rate . . .
given the number of years of practice, $200.00 per hour for
2-5 years of practice and $250.00 per hour for 5-9 years of
practice.
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Analysis
We review a trial court's calculation of reasonable attorneys' fees for an
abuse of discretion. Raza v. Deutsche Bank Nat'l Tr. Co., 100 So. 3d 121, 126 (Fla. 2d
DCA 2012) (citing DiStefano Constr., Inc. v. Fid. & Deposit Co. of Md., 597 So. 2d 248,
250 (Fla.1992)). In determining whether an abuse of discretion has taken place, we ask
whether reasonable people could differ as to the propriety of the trial court's action. Id.
(quoting Grapski v. City of Alachua, 134 So. 3d 987, 989 (Fla. 1st DCA 2012)). "Thus, a
court must look to the record to determine if 'there is competent substantial evidence
which supports the trial court's order under the totality of the circumstances.' " Id.
In evaluating the reasonableness of an hourly fee, trial courts must
consider eight factors found in the Florida Rules of Professional Conduct, which for
these purposes are referred to as the "Rowe factors" after the Florida Supreme Court
opinion that dictates their consideration.1 See Fla. Patient's Comp. Fund v. Rowe, 472
1
These factors are:
(1) The time and labor required, the novelty and difficulty of
the question involved, and the skill requisite to perform the
legal service properly.
(2) The likelihood, if apparent to the client, that the
acceptance of the particular employment will preclude other
employment by the lawyer.
(3) The fee customarily charged in the locality for similar
legal services.
(4) The amount involved and the results obtained.
(5) The time limitations imposed by the client or by the
circumstances.
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So. 2d 1145, 1151 (Fla. 1985), modified by Standard Guar. Ins. Co. v. Quanstrom, 555
So. 2d 828 (Fla. 1990); see also R. Regulating Fla. Bar 4-1.5(b)(1). "After considering
these factors, the trial court must make specific findings concerning the reasonable
hourly rate, the number of hours reasonably expended, and the appropriateness of any
reduction or enhancement factors." Baratta v. Valley Oak Homeowners' Ass'n at the
Vineyards, Inc., 928 So. 2d 495, 498 (Fla. 2d DCA 2006). "The failure to make these
required findings constitutes reversible error." Id.
Paragraph two of the final judgment—the only portion dealing with the
court's reduction of Westaway's attorneys' hourly rate—cites Rowe and rule 4-1.5 but
does not include any specific findings as to any of the eight Rowe factors. Nor does the
court's lengthy oral ruling indicate that it properly considered the Rowe factors. Instead,
the only factor that the court appeared to consider in reducing the attorneys' hourly rate
was their experience level at various points in the litigation. Although the seventh Rowe
factor does call upon courts to consider "[t]he experience, reputation, and ability of the
lawyer or lawyers performing the services," that factor itself makes clear that the
lawyers' relative experience cannot be considered in isolation but, at a minimum, must
be weighed in conjunction with their reputation and ability. 472 So. 2d at 1150.
(6) The nature and length of the professional relationship
with the client.
(7) The experience, reputation, and ability of the lawyer or
lawyers performing the services.
(8) Whether the fee is fixed or contingent.
Rowe, 472 So. 2d at 1150.
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Moreover, the final judgment includes no justification for the hourly rates
that the trial court determined were reasonable. Nothing in the record—or anywhere
else for that matter—explains why $200 an hour would be a reasonable fee for an
attorney with "2-5 years of practice" or why $250 would be a reasonable fee for an
attorney with "5-9 years of practice." The sole expert witness in this case did not testify
that such hourly rates would be reasonable; Wells Fargo was not represented at the fee
hearing, so it could not have suggested them; and we cannot find anything in either the
Florida Rules of Professional Conduct or in published case law that ties an attorney's
reasonable hourly rate to the time frames articulated by the trial court.
We recognize that when evaluating the reasonableness of a requested fee
award, judges should not "abandon what [they] learned as lawyers or [their] common
sense." See D'Alusio v. Gould & Lamb, LLC, 36 So. 3d 842, 846 (Fla. 2d DCA 2010)
(alteration in original). But even though the trial court was not bound by the expert's
opinion, we cannot affirm the trial court's award when "the record is totally devoid of any
evidence to support a conclusion that the award was reasonable." Id. at 847. Here, the
judge did not indicate that her determination of reasonable hourly rates was rooted in
her experience as a lawyer, nor did she explain why the varying rates that she applied
were more reasonable than the single rate that Westaway's attorneys proposed (and all
of the evidence adduced at the fee hearing supported). Her only apparent justification
for reducing the hourly rate was her personal opinion of what attorneys should charge
based on their number of years in practice. This alone does not constitute competent,
substantial evidence.
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Thus, we hold that the trial court abused its discretion in reducing
Westaway's attorneys' reasonable hourly rate. Accordingly, we reverse and remand
with instructions for the trial court to award Westaway's attorneys their requested rate of
$325 per hour and to recalculate the lodestar using that rate. In all other respects, we
affirm.
Affirmed in part; reversed in part; remanded with instructions.
CASANUEVA and SLEET, JJ., Concur.
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