Third District Court of Appeal
State of Florida
Opinion filed October 12, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1997
Lower Tribunal No. 13-16209
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Suresh Gidwani and Bina Gidwani,
Appellants,
vs.
Sherry Roberts and Alice Randolph,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Oscar
Rodriguez-Fonts, Judge.
ALGO Firm and Harvey J. Sepler (Hollywood), for appellants.
Vincent F. Vaccarella, P.A., and John A. Moore and Zachary L. Auspitz
(Ft. Lauderdale), for appellees.
Before FERNANDEZ, C.J., and EMAS, and MILLER, JJ.
FERNANDEZ, C.J.
Defendants Suresh Gidwani and Bina Gidwani (“defendants”) appeal
the trial court’s: 1) July 13, 2021 “Final Judgment on Damages Against
Defendants”; 2) August 13, 2021 “Order on Defendants Suresh Gidwani and
Bina Gidwani’s Motion for Rehearing of Plaintiff’s Motion for Final Judgment”;
and 3) September 21, 2021 “Order Denying Request for Relief from Final
Judgment Contained in ‘Defendants Suresh Gidwani and Bina Gidwani’s
Motion for Rehearing of Plaintiff’s Motion for Final Judgment.’” Defendants’
argument that the award was excessive and unsupported by the evidence is
not supported by the record on appeal, thus the trial court did not abuse its
discretion. Furthermore, the Court accepts plaintiffs’ concession on the
appellate attorneys’ fees error. Accordingly, the amount of attorneys’ fees
awarded in the trial court’s “Final Judgment on Damages Against
Defendants” is reduced from $266,476.25 to $247,463.75, and the case is
remanded to the trial court with directions to enter an amended final
judgment consistent with this Court’s decision, as well as for a recalculation
of the prejudgment interest. The remainder of the award as it relates to costs
in the amount of $18,258.28 is affirmed. In addition, we affirm the trial court’s
August 13, 2021 order, as the trial court granted defendants the relief they
requested in that motion by granting the rehearing. Regarding the
September 21, 2021 “Order Denying Request for Relief from Final Judgment
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Contained in ‘Defendants Suresh Gidwani and Bina Gidwani’s Motion for
Rehearing of Plaintiff’s Motion for Final Judgment’”, we reverse that order
consistent with our reversal of the final judgment on damages with respect
to attorney’s fees and prejudgment interest. In sum, we affirm in part, reverse
in part, and remand for further proceedings consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
The action below stems from a more than six-year dispute between
two sets of Miami Beach condominium unit owners over who owned two
parking spaces in the Decoplage Condominiums on Miami Beach, Florida.
On May 6, 2013, Sherry Roberts and Alice Randolph (“plaintiffs”) filed a
three-count complaint against Suresh Gidwani and Bina Gidwani
(“defendants”): Count 1 for declaratory judgment; Count II for a temporary
injunction; and Count III for damages regarding ownership of the two parking
spaces. In Count I, plaintiffs asked the trial court to determine who owned
the two parking spaces. Count II sought an order prohibiting defendants from
using the spaces or renting them out to others. In Count III, plaintiffs sought
damages related to the defendants’ prior use/renting of the parking spaces.
In October 2015, plaintiffs moved for summary judgment, which the
trial court granted. Defendants appealed the final summary judgment as to
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liability, as well as the final judgment awarding damages and attorneys’ fees
entered in favor of plaintiffs. This Court reversed in Gidwani v. Roberts,
248
So. 3d 203 (Fla. 3d DCA 2018), finding that genuine issues of material fact
regarding who owned the subject parking spaces precluded summary
judgment for plaintiffs. The case was thus remanded for trial.
Subsequently, after a two-day bench trial was held in May 2019, the
court entered Final Judgment for plaintiffs on June 2, 2019. Regarding Count
I for declaratory judgment, the court found that the parking spaces were
assigned appurtenant to plaintiffs’ unit and were included in the sale to
plaintiffs at the time they purchased their unit at the Decoplage in 1998 and
not to defendants when they purchased their unit in 2011. The trial court
deemed Count II for injunction to be moot because the spaces were sold by
the plaintiffs in 2016 during pendency of the litigation below. As to Count III
for damages, plaintiffs sought to have defendants disgorge $6,700
defendants had earned by renting the two parking spaces out to others
during the time plaintiffs owned the parking spaces. The trial court found in
favor of plaintiffs on Count III, but only awarded $1.00 in nominal damages
to plaintiffs because it found that plaintiffs did not meet their burden to prove
damages, “as there was insufficient testimony adduced showing that
Plaintiffs had or were going to rent the Spaces during the time that
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Defendants deprived Plaintiffs of their right to use the Spaces.” Finding that
plaintiffs had prevailed on Count I, the trial court found plaintiffs were the
prevailing parties and thus were entitled to an award of reasonable attorney’s
fees and costs, according to section 31.03 of the Decoplage’s Declaration of
Condominium and section 718.303(1), Florida Statute (2019). The trial court
reserved jurisdiction regarding the amount of fees and costs. Defendants
moved for rehearing, which the trial court denied.
Defendants appealed the Final Judgment to this Court, contending that
the trial court erred in entering declaratory judgment in plaintiffs’ favor, and
in the alternative, that the trial court erred in finding that plaintiffs were
entitled to attorneys’ fees as the prevailing party. On August 5, 2020, this
Court affirmed the trial court’s judgment in its entirety. Gidwani v. Roberts,
306 So. 3d 1054 (Fla. 3d DCA 2020). This Court also found plaintiffs were
entitled to appellate attorneys’ fees. The case then returned to the trial court
a second time to determine the reasonable amount of attorney’s fees and
costs.
Meanwhile, on December 10, 2019, plaintiffs had filed their “Motion to
Determine Reasonable Amount of Attorneys’ Fees and Costs,” seeking
$266,476.25 in attorneys’ fees and $22,535.39 in costs. Plaintiffs filed
supporting attorney affidavits, detailed contemporaneous time records, and
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a fee expert affidavit detailing the expert’s lodestar analysis. Plaintiffs also
filed “Plaintiffs’ Corrected Notice of Filing Supplemental Affidavit,” which was
plaintiffs’ trial counsel’s supplemental affidavit regarding plaintiffs’ costs.
Defendants filed their response and objections, contesting entitlement,
arguing for a lower award of attorney’s fees and costs. They also attached a
report by their fee expert, Debra L. Feit, which did not set forth a lodestar
analysis. Evidentiary hearings before the trial court were held on three
separate days: October 7, 2020; December 8, 2020; and February 1, 2021.
The parties stipulated that the hourly rates being charged by plaintiffs’
lawyers were reasonable.
On June 14, 2021, the trial court entered its eleven-page “Order on
Plaintiffs’ Motion to Determine Reasonable Amount of Attorneys’ Fees and
Costs” upon which its Final Judgment is based. First, the trial court did not
undo the predecessor judge’s order finding plaintiffs were entitled to
attorney’s fees, as defendants had requested. Next, in determining the
reasonableness of the attorney’s fees, the trial court followed the lodestar
approach as set out in Florida Patient’s Compensation Fund v. Rowe,
472
So. 2d 1145, 1150 (Fla. 1985). The trial court found that plaintiffs met their
burden of presenting evidence via affidavits, contemporaneous time records,
and expert report and testimony detailing the nature and extent of services
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performed by their attorneys. The trial court stated that the burden then
shifted to the defendants to point out with specificity which hours should be
deducted. The court outlined in detail why defendants did not meet their
burden and thus found that the rates and fees charged were reasonable. It
awarded the plaintiffs $266,476.25 in attorneys’ fees. In addition, the court
awarded plaintiffs $18,258.28 in costs, also detailed in its order. Defendants
moved for rehearing, and another evidentiary hearing was held before the
trial court on August 23, 2021. On September 21, 2021, the trial court denied
the motion for rehearing. Defendants now file this third appeal.
Defendants argue that 1) plaintiffs lacked standing to bring the action,
and there was no case or controversy before the trial court or this Court from
which to impose fees and costs; 2) the amount of attorney’s fees and
litigation costs assessed were excessive, disproportionate to the results
obtained, and not sufficiently proved; and 3) because the attorney’s fee
award was excessive and reflected unclaimed appellate attorneys’ fees and
duplicative billing, it is unreasonable. Plaintiffs answer that the trial court
never lost jurisdiction; the trial court’s order determining fees and costs is
supported by substantial competent evidence; and defendants have not
made any argument to reduce any of the costs award.
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“An appellate court reviews issues of jurisdiction under a de novo
standard of review.” Graves v. State,
331 So. 3d 210, 212 (Fla. 4th DCA
2022). Furthermore, “[t]he standard of review for an award of attorney’s fees
is abuse of discretion.” Bateman v. Serv. Ins. Co.,
836 So. 2d 1109, 1111
(Fla. 3d DCA 2003). Judicial discretion is abused:
when the judicial action is arbitrary, fanciful, or unreasonable,
which is another way of saying that discretion is abused only
where no reasonable man would take the view adopted by the
trial court. If reasonable men could differ as to the propriety of
the action taken by the trial court, then it cannot be said that the
trial court abused its discretion.
Canakaris v. Canakaris,
382 So. 2d 1197, 1203 (Fla. 1980). Factual findings
are reviewed to determine whether they are “supported by competent,
substantial evidence,” and the “findings of fact come to the appellate court
with a presumption of correctness and will not be disturbed unless they are
clearly erroneous.” Haas Automation, Inc. v. Fox,
243 So. 3d 1017, 1023
(Fla. 3d DCA 2018).
DISCUSSION
I. Jurisdiction
Defendants first claim that the trial court lost jurisdiction over the case
when, during the pendency of the underlying case in the trial court, plaintiffs
sold their rights to the subject parking spaces in March 2016. They claim that
plaintiffs should not have been awarded attorneys’ fees for the period that
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defendants contend the trial court did not have jurisdiction over the case.
Plaintiffs counter that the trial court never lost jurisdiction over the case
because on August 5, 2020, this Court affirmed the trial court’s judgment in
its entirety. Gidwani, 306 So. 3d at 1054. Consequently, this Court has
already implicitly determined in that opinion that the trial court had jurisdiction
over the case. Thus, defendants’ argument on this issue is without merit.
II. Competent substantial evidence to support the trial court’s order
determining fees and costs
Defendants next contend that the amount of attorneys’ fees and costs
assessed were excessive, disproportionate to the outcome, and not
sufficiently proved. However, defendants have not shown how the trial court
abused its discretion in determining the lodestar amount and determining
fees and costs.
Adhering to Rowe, this Court in Universal Property & Casualty
Insurance Company v. Deshpande,
314 So. 3d 416, 419 (Fla. 3d DCA 2020),
stated:
In determining the amount of attorneys’ fees to be awarded, a
trial court is required to use the lodestar approach and consider
the eight criteria set forth in Florida Patient's Compensation Fund
v. Rowe,
472 So. 2d 1145 (Fla. 1985). “Under Rowe, a trial court
must first determine the lodestar amount, which is the number of
attorney hours reasonably expended multiplied by a reasonable
hourly rate.” Joyce v. Federated Nat'l Ins. Co.,
228 So. 3d 1122,
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1126 (Fla. 2017) (citing Rowe,
472 So. 2d at 1150–51). “The trial
court must set forth ‘specific findings’ as to its determination of
the number of hours, the hourly rate, and any reduction or
enhancement factors.”
Id. (citing Rowe,
472 So. 2d at 1151). We
review the trial court's evidentiary findings regarding the
attorneys’ fee award for competent, substantial evidence.
Pazmino v. Gonzalez,
273 So. 3d 1056, 1059 (Fla. 3d DCA
2019).
Thus, the trial court must first determine the “lodestar” amount, which is the
number of attorney hours reasonably expended multiplied by a reasonable
hourly rate. Rowe,
472 So. 2d at 1150-51. In calculating the hourly rate, the
trial court is to consider all eight Rowe factors “except the ‘time and labor
required,’ the ‘novelty and difficulty of the question involved,’ the ‘results
obtained,’ and ‘[w]hether the fee is fixed or contingent.’”
Id. The trial court
must set forth “specific findings” as to its determination of the number of
hours reasonably expended, the hourly rate, and the appropriateness of any
reduction or enhancement factors.
Id. at 1151. “Once the court determines
a lodestar figure, it may add or subtract from that fee based on a ‘contingency
risk’ factor and the ‘results obtained.’”
Id. “If the court decides to adjust the
lodestar, it must state the grounds on which it justified the enhancement or
reduction.”
Id. “[T]he trial court has ‘broad discretion’ to award fees; on
appeal, this court will reverse a fee award only if there has been an abuse of
discretion.” Schmitz v. Schmitz,
891 So. 2d 1140, 1141-42 (Fla. 4th DCA
2005).
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Here, the record reflects that the trial court adhered to Rowe. The trial
court’s order awarding fees set forth specific findings as to time reasonably
expended, the hourly rate (to which both parties stipulated as being
reasonable), as well as the appropriateness of any other reduction or
enhancement factors. Rowe,
472 So. 2d at 1151. On page 2 of the trial
court’s “Order on Plaintiffs’ Motion to Determine Reasonable Amount of
Attorneys’ Fees and Costs,” the court cited Rowe and outlined the factors to
be considered. The court noted that the first step in the lodestar analysis
required the court to determine the number of hours reasonably expended
in the litigation. Regarding hours reasonably expended, the trial court stated
it “should first look to ‘accurate records kept by counsel,’ that detail ‘the
dates, amount, and specific services provided.’” The trial court reviewed
plaintiffs’ expert’s affidavit, as well as plaintiffs’ counsels’ affidavits and
records and contemporaneous detailed time sheets. The trial court further
stated that he accepted plaintiffs’ fee expert, Michael Kurzman, as an expert
and noted that Mr. Kurzman determined that the reasonable hours and fees
expended was 782.37 hours, totaling $266,476.25 in fees, after applying
certain deductions. He found this was a reasonable fee award for the six
years of legal work and that the various hourly rates charged were lower than
the reasonable hourly rates charged in South Florida. The trial court
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accepted Mr. Kurzman’s deduction for credits or professional courtesy
discounts of $9,900.00 and 1.8 hours at $385/hour because there was a May
2018 entry related to an appeal. The trial court then found that plaintiffs “met
their burden of presenting evidence by way of affidavits, contemporaneous
time records, an expert report and testimony detailing the nature and extent
of services performed by their attorneys.” The trial court stated that the
burden then shifted to defendants “to point out with specificity which hours
should be deducted.”
Also, the trial court noted that the defendants argued that because
plaintiffs sold the parking spaces for $52,500, then the reasonable attorneys’
fees could not exceed that amount. The defendants argued that reasonable
attorneys’ fees would be 1/3 of $52,500 because they contended plaintiffs
only prevailed under the declaratory judgment count. The court rejected this
argument.
Here, the record does not reflect that Count I for declaratory judgment
as to when the two parking spaces had been assigned involved an attempt
to declare the value of the spaces. The record does not contain any evidence
on the valuation of the two parking spaces. Accordingly, as plaintiffs contend,
because there was no evidence or testimony presented as to the valuation
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of the spaces, there is no support for defendants’ contention that the spaces
were valued at $52,500.
In addition, the amount at issue is only one factor to be considered.
Plaintiffs’ expert, Mr. Kurzman, was asked on cross-examination if the
amount of attorneys’ fees plaintiffs were seeking was reasonable if the value
of the asset was only $52,500. He answered “Yes.” He further testified that:
[T]here is no case filed here in Florida that says the amount
involved dictates the amount of the case. I have seen cases
where an insurance claim was fighting over an MRI, which was
like $1,000, and they ran up $300,000 in fees fighting over the
entitlement to the MRI, and the Court said that was reasonable.
Mr. Kurzman also testified that in addition to the issue regarding who owned
the parking spaces, also at issue was the parties’ exposure to an attorneys’
fees award. Thus, the record reflected that for the six years the case was
litigated, plaintiffs’ attorneys reasonably expended 782.37 hours. The rate
charged was reasonable, as it was below the average South Florida rate,
and importantly, the parties stipulated to the hourly rate.
Furthermore, defendants’ expert, Ms. Keit, argued that it was
unreasonable for anyone to spend more than $50,000 on attorneys’ fees in
the underlying case, but she also conceded that defendants incurred much
more than $50,000 in attorneys’ fees at the trial court level. During her
testimony, Ms. Feit did not dispute that based on defendants’ own
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interrogatory responses, defendants’ second trial law firm charged
$43,023.50 for only five months of representation. Their third trial law firm
charged $83,625.00 for six months of legal work. Ms. Feit testified that she
charged $8,200.00 for her expert time alone.
Here, the trial court found that 782.37 in legal hours was expended
over the course of the six years. In Brake v. Murphy,
736 So. 2d 745 (Fla. 3d
DCA 1999), this Court found that the hours were excessive in a case where
attorneys spent 2,219.50 hours over two years. In State Farm Fire &
Casualty Company v. Palma,
524 So. 2d 1035, 1037 (Fla. 4th DCA 1988),
the Fourth District Court of appeal affirmed a recovery of $253,500 in
attorney’s fees for litigation to recover a $600 medical bill. Thus, we find that
the trial court satisfied the mandatory requirements of Rowe, and defendants
failed to show how the trial court abused its discretion. The “Order on
Plaintiffs’ Motion to Determine Reasonable Amount of Attorneys’ Fees and
Costs” and the evidentiary hearing transcripts reveal that, in determining
reasonableness, the trial court considered applicable case law and
competent expert testimony. Burton Family P’ship v. Luani Plaza, Inc.,
276
So. 3d 920, 923 (Fla. 3d DCA 2019) (holding that there was no abuse of
discretion shown when the trial court’s award was based upon competent
evidence and expert testimony).
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III. Plaintiffs concede to a reduction for inadvertent inclusion of
appellate attorneys’ fees invoice
Next, in their Answer Brief, plaintiffs concede that Invoice No. 48892
reflecting $19,012.50 for fifty-four (54) hours of appellate work was
inadvertently included in the invoices in support of plaintiffs’ motion for fees,
and thus mistakenly included in the trial court’s lodestar analysis. Plaintiffs
were only seeking attorneys’ fees for trial work. Thus, they concede that a
reduction of $19,012.50 is to be taken from the $266,476.25 attorney’s fee
award. Accordingly, the correct amount would be $247,463.75 based on
728.37 hours (782.37 hours minus the fifty-four (54) appellate attorney
hours).
IV. Credibility of witnesses
Regarding the credibility of the expert witnesses, “[t]he quality of that
testimony and the weight to be assigned thereto were matters properly for
consideration and determination by the trial court.” South Dade Farms, Inc.
v. Atlantic Nat’l Bank,
222 So. 2d 275, 278 (Fla. 3d DCA 1969). At four
hearings that took place before the trial court, the court weighed the
credibility of the witnesses, and the court did not find Ms. Feit’s testimony to
be as credible as that of Mr. Kurzman’s. In her cross-examination, Ms. Feit
15
was discredited when she admitted that she lied in her Report when she
stated that she had been an associate in 2011 and 2012 for Tonja Haddad,
PA firm. At the hearing, she testified she was not admitted into the Florida
Bar until July 2013. Ms. Feit further admitted that she was currently the
subject of two Florida Bar Complaints regarding her billing practices, one of
which was before the grievance committee. And finally, Ms. Feit’s 117-page
Report did not provide a lodestar analysis.
V. Defendants have not made any argument to reduce any costs
awarded
As plaintiffs correctly contend, defendants have not made any
argument for the reduction of costs in their Initial Brief or Reply Brief, thus
the $18,258.28 in costs award is affirmed.
CONCLUSION
The record on appeal establishes that the trial court’s “Order on
Plaintiffs’ Motion to Determine Reasonable Amount of Attorneys’ Fees and
Costs” was supported by competent, substantial evidence. Thus, the trial
court did not abuse its discretion in entering Final Judgment for plaintiffs.
Defendants would like this Court to substitute its judgment for that of the trial
court, but that is something this Court cannot do. Shaw v. Shaw,
334 So. 2d
16
13, 16 (Fla. 1976) (holding “[i]t is not the function of the appellate court to
substitute its judgment for that of the trial court through re-evaluation of the
testimony and evidence from the record on appeal before it.”). For these
reasons and because plaintiffs have conceded error on the inclusion of the
appellate attorneys’ fees invoice, we reverse the “Final Judgment on
Damages Against Defendants” in part and remand to the trial court to reduce
the amount of attorneys’ fees awarded from $266,476.25 to $247,463.75,
which reflects the deduction of the fifty-four (54) hours of appellate attorneys’
fees plaintiffs conceded was erroneously included in the attorneys’ fees
award. In addition, the trial court is to recalculate the prejudgment interest.
We affirm the remainder of the award in the Final Judgment as it relates to
costs. The trial court’s August 13, 2021 “Order on Defendants Suresh
Gidwani and Bina Gidwani’s Motion for Rehearing of Plaintiff’s Motion for
Final Judgment” is affirmed, as the trial court already granted defendants the
relief they requested in that motion. We reverse in part the trial court’s
September 21, 2021 order, insofar as the $266,476.25 attorneys’ fees figure
and prejudgment interest needs to be reduced and recalculated,
respectively, for the aforementioned reasons. The costs award is affirmed.
Affirmed in part; reversed in part; and remanded with instructions.
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