DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
EL BRAZO FUERTE BAKERY 2,
Appellant,
v.
24 HOUR AIR SERVICE, INC.,
Appellee.
No. 4D21-531
[November 24, 2021]
Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; Jackie Powell, Judge; L.T. Case Nos. COCE16-10481 and
CACE20-6601.
Gregory Light and Anthony Gonzalez of Light & Gonzalez, PLLC,
Plantation, for appellant.
No appearance for appellee.
GERBER, J.
The plaintiff, after prevailing in the underlying breach of contract
action, appeals from the county court’s final judgment on the plaintiff’s
motion to determine the amount of attorney’s fees to which it was entitled.
The plaintiff argues the county court erred in three respects: (1) by
reducing the plaintiff’s attorneys’ hourly rates, and the plaintiff’s expert’s
requested hourly rate, absent competent substantial evidence, or specific
findings, for such reductions; (2) by making internally inconsistent
findings supporting the application of a contingency fee multiplier but then
not applying a multiplier; and (3) by not awarding prejudgment interest
from the date on which the county court found the plaintiff was entitled to
attorney’s fees.
We agree with each of the plaintiff’s arguments. After providing a brief
procedural history, we will address each argument in turn.
Procedural History
The plaintiff filed a breach of contract claim against the defendant in
county court. After two years of litigation and a non-jury trial, the county
court entered a $3,394.00 final judgment in the plaintiff’s favor. The
plaintiff filed a motion for entitlement to prevailing party attorney’s fees
under the contract. The county court entered an order granting the
plaintiff’s motion for entitlement to attorney’s fees.
The plaintiff then filed its motion to determine the amount of attorney’s
fees to which it was entitled and its expert’s fees. The motion identified
the plaintiff’s expert’s opinions:
[Plaintiff’s counsels’] reasonable hourly rate is $350.00.
[A] reasonable amount of hours spent on this case was
111.65 ....
Plaintiff’s total lodestar amount of attorney’s fees is
$39,217.50.
Plaintiff’s counsel is entitled to a contingency fee multiplier
of 250% to the contingent portion of the Plaintiff’s [counsels’]
attorney’s fees, bringing the total amount of reasonable
attorney’s fees to $90,043.75.
The county court held a hearing to determine the fees amount. The
plaintiff presented two witnesses: one of the plaintiff’s two attorneys who
had worked on the litigation, and the plaintiff’s fees expert.
The plaintiff’s attorney testified as follows. The plaintiff retained the
two-attorney law firm to pursue its claim. The plaintiff retained the firm
on a partial contingency basis, whereby the plaintiff agreed to pay the firm
a flat $2,000 attorney’s fee. The plaintiff also agreed that, if: (1) it
ultimately prevailed in the litigation, and (2) the county court determined
it was entitled to recover its attorney’s fees, then the firm would seek to
recover the two attorneys’ reasonable hourly rate aggregated by a
contingency fee multiplier. The two attorneys ultimately spent 121.2
hours on the litigation up until the date when the county court granted
the plaintiff’s motion for entitlement to attorney’s fees. The firm’s detailed
records documenting the hourly work performed incurred were introduced
into evidence.
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The plaintiff’s attorney testified regarding how the work performed
satisfied the factors identified in Florida Patient’s Compensation Fund v.
Rowe,
472 So. 2d 1145 (Fla. 1985), as modified by Standard Guaranty
Insurance Co. v. Quanstrom,
555 So. 2d 828 (Fla. 1990). The plaintiff’s
attorney further testified that the firm would not have taken the case on a
partial contingency basis without the possibility of a multiplier. The
plaintiff’s attorney also testified that both he and his partner had been
practicing for about a year and a half and charged a $350 hourly rate.
On cross-examination, defense counsel questioned the plaintiff’s
attorney about the firm’s various billing entries, but did not question their
$350 hourly rate.
The plaintiff’s expert testified as follows. He was a twenty-five year
former judge and charged a $600 hourly rate. He had reviewed the court
file and the firm’s records and bills, and created a deductions list for
duplicative entries, travel time, and work which could have been
performed by clerical staff. He opined that 7.5 hours should be deducted
from the total hours billed, but the remaining 112.05 hours billed were
reasonable. He further opined $350 was a reasonable hourly rate for the
plaintiff’s attorneys, and the result which the firm obtained was excellent.
He also opined the relevant market required a contingency fee multiplier
to obtain competent counsel for this type of action, for which he believed
a 250% (i.e., 2.5) multiplier was warranted. He also testified he had spent
eleven hours preparing for the hearing.
Defense counsel requested the county court’s permission to testify as
the defendant’s expert witness. The county court denied the request
because defense counsel had not given notice that the defendant would be
presenting evidence at the hearing. However, the county court permitted
defense counsel, for appellate purposes, to proffer what his testimony
would have been, in the context of his closing argument. During the
unsworn proffer/closing, defense counsel stated his belief that the market
rate for attorneys with less than two years’ experience was $225 per hour,
and that the plaintiff’s claim did not justify a multiplier based on the
results obtained.
The plaintiff’s attorney’s closing argument cited case law, including
State Farm Fire & Casualty Co. v. Palma,
555 So. 2d 836 (Fla. 1990), for
the proposition that litigation over a claim in the hundreds of dollars still
may result in an attorney’s fee award in the tens of thousands if the
amount of hours expended was reasonable. The plaintiff’s attorney also
requested prejudgment interest on the attorney’s fees award to run from
the date when the county court granted the plaintiff’s motion for
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entitlement to attorney’s fees. The plaintiff’s attorney then provided the
county court with a proposed judgment, which contained blanks for the
county court to fill in findings for the reasonable hourly rate and hours for
both the plaintiff’s attorneys and its expert. The proposed judgment also
contained proposed findings to justify a multiplier, including a blank for
the county court to fill in a multiplier amount. The proposed judgment
also contained a blank for the county court to fill in a prejudgment interest
amount.
The county court deferred ruling at the hearing. Later, the county court
entered its judgment, using the plaintiff’s attorney’s proposed judgment as
a template. The county court found the plaintiff’s attorneys were entitled
to the 112.05 hours which its expert had opined were reasonable, but at
only a $175 hourly rate – that is, one-half of the $350 rate which its expert
opined was reasonable. The county court also found the plaintiff’s expert
was entitled to only 8.8 hours at a $225 hourly rate – that is, less than the
eleven hours at a $600 hourly rate to which the expert had testified.
Regarding a multiplier, the county court did not strike the proposed
findings to justify a multiplier, but filled in a zero for the multiplier
amount. The county court also did not award the plaintiff any
prejudgment interest on the attorney’s fee award.
The plaintiff filed a motion for rehearing, followed by an amended
motion. The amended motion asserted that the county court, without
explanation, had reduced the plaintiff’s attorneys’ uncontroverted
reasonable hourly rate as requested from $350 to $175, and reduced the
plaintiff’s expert’s uncontroverted hourly rate from $600 to $225. The
county court entered an order denying the amended motion for rehearing
without explanation.
This appeal followed. As stated above, the plaintiff argues the county
court erred in three respects: (1) by reducing the plaintiff’s attorney’s
requested hourly rate, and the plaintiff’s expert’s requested hourly rate,
absent competent substantial evidence, or specific findings, for such
reductions; (2) by making internally inconsistent findings supporting the
application of a contingency fee multiplier but then not applying a
multiplier; and (3) by not awarding prejudgment interest from the date on
which the county court found the plaintiff was entitled to attorney’s fees.
We agree with each of the plaintiff’s arguments. We will address each
argument in turn.
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1. The county court erred by reducing the plaintiff’s attorneys’
requested hourly rate, and the plaintiff’s expert’s requested
hourly rate, absent competent substantial evidence, or specific
findings, for such reductions.
Our standard of review is for an abuse of discretion. See Webber v.
D’Agostino,
251 So. 3d 188, 191 (Fla. 4th DCA 2018) (“We review the trial
court’s determination as to the amount of attorney’s fees and costs for
abuse of discretion.”).
“An award of attorney’s fees must be supported by substantial
competent evidence and contain express findings regarding the number of
hours reasonably expended and a reasonable hourly rate for the type of
litigation involved.” Trovato v. Trovato,
16 So. 3d 290, 291 (Fla. 4th DCA
2009) (citation omitted). “Additionally, the award must be supported by
expert evidence, including the testimony of the attorney who performed
the services.” Rakusin v. Christiansen & Jacknin, P.A.,
863 So. 2d 442,
444 (Fla. 4th DCA 2003) (citation omitted).
“While trial courts are not bound by expert opinions provided at
evidentiary hearings or by attorney [testimony] submitted at such
hearings, they may only reduce attorneys’ fees that they deem to be
excessive if they make specific findings to support that determination.”
Lizardi v. Federated Nat’l Ins. Co.,
322 So. 3d 184, 189 (Fla. 2d DCA 2021)
(emphasis added). In Lizardi, where the trial court had not made specific
findings as to why it had reduced the requested number of hours or hourly
rate, our sister court held:
Had the trial court … made specific findings as to why it
reduced the requested number of hours or hourly rate, the
order would have likely satisfied Rowe’s requirements. … But
the order as written, merely stating the hourly rate and
reasonable number of compensable hours without any
elucidation as to why those figures were used instead of the
requested figures, does not comport with the requirements of
Rowe.
Id. at 189-90.
Our sister court reached the same holding on similar facts in Westaway
v. Wells Fargo Bank, N.A. for Carrington Mortgage Loan Trust, Series 2007-
RFC1, Asset-Backed Pass Through Certificates,
230 So. 3d 505 (Fla. 2d
DCA 2017). In Westaway, a defendant who had obtained an involuntary
dismissal requested attorney’s fees based on a $325 hourly rate.
Id. at
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507. At the fees hearing, the defendant’s expert witness “testified that
such a rate was reasonable.”
Id. The opposing party did not appear or
present any evidence at the hearing, making the defendant’s fee request
uncontested.
Id. Nevertheless, the circuit court, expressing its “personal
disbelief” that the defendant’s attorneys “could reasonably command $325
an hour,” instead awarded “$200.00 per hour for 2-5 years of practice[,]
and $250.00 per hour for 5-9 years of practice.”
Id.
On appeal, the defendant argued the circuit court had abused its
discretion in “sua sponte reducing her attorney’s reasonable hourly rate.”
Id. at 506. Our sister court agreed, because “the final judgment include[d]
no justification for the hourly rates that the [circuit] court determined were
reasonable.” Id. at 508. Our sister court explained:
Nothing in the record … 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;
[the opposing party] 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 [circuit]
court.
Id.
While the Westaway court recognized that, “when evaluating the
reasonableness of a requested fee award, judges should not abandon what
[they] learned as lawyers or [their] common sense,” and “the [circuit] court
was not bound by the expert’s opinion,” the court held:
[W]e cannot affirm the [circuit] court’s award when the
record is totally devoid of any evidence to support a conclusion
that the award was reasonable. ... [T]he [circuit court] 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 [the defendant’s] attorneys proposed
(and all of the evidence adduced at the fee hearing supported).
[The circuit court’s] 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.
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This alone does not constitute competent, substantial
evidence.
Id. at 508-09 (internal citations and quotation marks omitted).
Similar to Lizardi and Westaway, the judgment here does not comport
with Rowe’s requirements, merely by stating the reasonable hourly rate
and hours without any elucidation as to why the county court reduced
both the plaintiff’s attorneys and expert’s hourly rates, and the expert’s
hours, all of which was supported by competent substantial evidence. The
defendant did not present any expert or other evidence to refute the
plaintiff’s expert’s opinion that the plaintiff’s attorneys’ reasonable hourly
rate was $350 for this case, or that the expert’s reasonable hourly rate was
$600. Nor did the county court “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[s] that [the plaintiff’s] attorneys proposed (and all of
the evidence adduced at the fee hearing supported).” Westaway, 230 So.
3d at 509. Even defense counsel’s proffer/closing argument (which was
not properly noticed or sworn) argued that the plaintiff’s attorneys’
reasonable hourly rate was $225 – that is, $50 more per hour than the
rate which the county court awarded.
Thus, we must reverse the county court’s judgment. The plaintiff
requests that we direct the county court to award the plaintiff’s attorney’s
fees and expert’s fees at the hourly rates requested, which would be
consistent with the plaintiff’s uncontroverted hearing evidence. However,
we conclude the appropriate disposition on remand is for the county court
either to amend the award as requested, or explain a legal basis for its
reduced hourly rates. As discussed above, although the plaintiff’s hearing
evidence was uncontroverted, “trial courts are not bound by expert
opinions provided at evidentiary hearings or by attorney [testimony]
submitted at such hearings,” and “may ... reduce attorneys’ fees that they
deem to be excessive if they make specific findings to support that
determination.” Lizardi, 322 So. 3d at 189 (emphasis added); see also
Puleo v. Morris,
98 So. 3d 248, 250 (Fla. 2d DCA 2012) (“[Appellants] ask
that on remand we direct the circuit court to award them attorney’s fees
in amounts consistent with the uncontroverted evidence presented at the
hearing. Although the evidence presented by [appellants] at the hearing
was uncontroverted, the circuit court is not bound by the time and billing
records presented or by the expert witness’s testimony about the
reasonableness of the fees requested. A trial court may reduce attorney’s
fees that it determines to be excessive if it makes the requisite findings to
support that determination.”) (emphasis added).
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2. The county court erred by making internally inconsistent
findings supporting the application of a contingency fee
multiplier but then not applying a multiplier.
“[T]he standard of review with respect to the application of a multiplier
is one of abuse of discretion.” City of Daytona Beach v. A.B.,
304 So. 3d
395, 399 (Fla. 5th DCA 2020) (alteration in original) (citation omitted).
“The trial court is not required to apply a contingency multiplier, but is
required only to consider whether a multiplier is warranted.” Nalasco v.
Buckman, Buckman & Reid, Inc.,
171 So. 3d 759, 762 (Fla. 4th DCA 2015)
(citing Quanstrom,
555 So. 2d at 831).
As our supreme court stated in Quanstrom:
[In] tort and contract cases ... the trial court should
consider the following factors in determining whether a
multiplier is necessary: (1) whether the relevant market
requires a contingency fee multiplier to obtain competent
counsel; (2) whether the attorney was able to mitigate the risk
of nonpayment in any way; and (3) whether any of the factors
set forth in Rowe are applicable, especially, the amount
involved, the results obtained, and the type of fee arrangement
between the attorney and his client. Evidence of these factors
must be presented to justify the utilization of a multiplier.
555 So. 2d at 834.
Here, the county court did not strike the proposed judgment’s
Quanstrom multiplier findings (which findings were supported by the
plaintiff’s expert’s testimony); however, the county court filled in a zero for
the multiplier amount. Thus, the judgment is internally inconsistent on
its face, and we cannot discern from the record whether the county court
intended to apply a multiplier or not.
For this reason, we must reverse and remand for the county court to
further amend the judgment to resolve this inconsistency by either (a)
awarding a multiplier, or (b) striking the Quanstrom findings justifying the
multiplier and explaining why the county court rejected the plaintiff’s
expert’s uncontroverted testimony. See, e.g., Allen v. Allen,
114 So. 3d
1102, 1103-04 (Fla. 1st DCA 2013) (reversing internally inconsistent final
judgment of dissolution and remanding for the trial court to correct
inconsistent provisions relating to child support and the allocation of
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child-related expenses). We make no comment as to whether a multiplier
is appropriate, as that issue is not before us at this time.
3. The county court erred by not awarding prejudgment interest
from the date on which the county court found the plaintiff
was entitled to attorney’s fees.
“A trial court’s decision concerning a [party’s] entitlement to
prejudgment interest is reviewed de novo.” Sterling Vills. of Palm Beach
Lakes Condo. Ass’n v. Lacroze,
255 So. 3d 870, 872 (Fla. 4th DCA 2018)
(alteration in original; citation omitted).
“[I]nterest accrues [on an award of attorney’s fees] from the date the
entitlement to attorney fees is fixed through agreement, arbitration award,
or court determination, even though the amount of the award has not yet
been determined.” Bayview Loan Servicing, LLC v. Cross,
286 So. 3d 858,
863 (Fla. 5th DCA 2019) (alterations in original) (quoting Quality Eng’d
Installation, Inc. v. Higley S., Inc.,
670 So. 2d 929, 930–31 (Fla. 1996)); see
also Cox v. Great Am. Ins. Co.,
203 So. 3d 204, 206 (Fla. 4th DCA 2016)
(“[A]ppellee was ... entitled to interest on the attorney’s fees award from
th[e] date entitlement was determined.”) (citation omitted).
Here, the county court’s order granting the plaintiff’s motion for
entitlement to attorney’s fees fixed such entitlement. Bayview, 286 So. 3d
at 863. Therefore, the plaintiff became entitled to an award of prejudgment
interest from that date through the rendition of any new final judgment
entered upon remand after further proceedings. See id.
Accordingly, we must reverse the county’s court’s failure to award
prejudgment interest, and remand for the county court to further amend
the judgment to calculate and award the amount of prejudgment interest
on the plaintiff’s ultimate attorney’s fees award, measured from the date
of the order granting the plaintiff’s motion for entitlement to attorney’s fees
through the date of the amended judgment’s rendition. See id.
Conclusion
In sum, based on the foregoing, we reverse the county court’s fees
judgment and remand for the county court to enter an amended judgment
which: (1) either amends the award as requested, or explains a legal basis
for its reduced hourly rates; (2) either awards a multiplier, or strikes the
Quanstrom findings justifying the multiplier and explains why the county
court rejected the plaintiff’s expert’s uncontroverted testimony; and (3)
calculates and awards the amount of prejudgment interest on the
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plaintiff’s ultimate attorney’s fees award, measured from the date of the
order granting the plaintiff’s motion for entitlement to attorney’s fees
through the date of the amended judgment’s rendition.
Reversed and remanded with instructions.
CIKLIN and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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