Donovan Marine, Inc. v. Daniel Delmonico , 2015 Fla. App. LEXIS 12771 ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DONOVAN MARINE, INC.,
Appellant,
v.
DANIEL DELMONICO,
Appellee.
No. 4D14-2029
[August 26, 2015]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Dale Ross, Judge; L.T. Case No. 03-19435CACE08.
A. Rodger Traynor, Jr. of Akerman LLP, Miami, for appellant.
Ismael Diaz of Law Office of Ismael Diaz, P.L., Coral Gables, for appellee.
PER CURIAM.
Appellant Donovan Marine, Inc. timely appeals the amended final
judgment for attorneys’ fees and costs entered in its favor and against
Appellee Daniel Delmonico (“Delmonico”). This is the third appeal to this
court concerning attorneys’ fees awardable to Appellant. For the reasons
stated below, we reverse the trial court’s order of attorneys’ fees and
remand once again for further findings consistent with this and prior
opinions.
Facts
In 2008, the jury rendered a verdict in favor of Appellant, while the trial
court reserved jurisdiction to award judgment to Appellant for its taxable
court costs and reasonable attorneys’ fees. In 2010, we held that Appellant
was entitled to reasonable attorneys’ fees from Delmonico, both for the five
years of work leading up to the final judgment, and for the three appeals
that arose post-judgment, all of which were resolved in favor of Appellant.
After our 2010 decision, the trial court conducted a two-day evidentiary
hearing on Appellant’s amended motion for fees and costs. Each party
stipulated that the hourly rates charged by Appellant’s attorney were
reasonable and that the trial court needed to determine only the total
number of appropriate hours expended. The trial court found the
reasonable number of attorney and paralegal hours expended to be
between 1800 and 1900 for an award of $830,250.00 plus interest.
Subsequently, Delmonico appealed the amount of the award against
him. Both parties conceded, and we agreed, that it was error for the trial
court to use a range (1800-1900) of allowable hours rather than finding
the specific number of hours reasonably expended. Delmonico v. Crespo,
127 So. 3d 576, 579 (Fla. 4th DCA 2012). Based on that conclusion, we
reversed the fee awarded to Appellant “to the extent it fails to make specific
findings as to the number of hours reasonably expended, and we remand
for the trial court to make the requisite findings.” Id. at 580.
On the second remand, the trial court entered the order now under
review. The trial court again noted that neither party challenged the
reasonableness of the hourly rates provided by Appellant. The trial court
conceded that it erred in its prior order by making an unspecified “across
the board” reduction of the daily time entries that had been “block-billed.”
In its order, the trial court found that out of the 1960 hours shown to have
been expended by Appellant’s lead counsel, the reasonable number of
hours expended was 1734. Additionally, contrary to our mandate, the trial
court multiplied the total hours by a “blended hourly rate of $450” to yield
an award of $780,300.
In its third appeal to this court regarding the matter of attorneys’ fees,
Appellant argues that the trial court erred in substituting a “blended
hourly rate” for the rate to which the parties and the trial court previously
agreed. Additionally, Appellant maintains that the trial court erred in
failing to identify specifically the 226 hours attributed to its lead counsel
which the trial court did not approve.
Analysis
“When a case has been decided on appeal, the lower court is bound by
the decree as the law of the case, and must carry it into execution
according to the mandate.” McAllister v. Breakers Seville Ass’n, 41 So. 3d
405, 408 (Fla. 4th DCA 2010). However, a trial court’s findings as they
relate to attorneys’ fees are reviewed for an abuse of discretion. DiStefano
Constr., Inc. v. Fid. & Deposit Co. of Md., 597 So. 2d 248, 250 (Fla. 1992)
(“[T]he award of attorney’s fees is a matter committed to sound judicial
discretion which will not be disturbed on appeal, absent a showing of clear
abuse of discretion.”).
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In Hill v. Palm Beach Polo, Inc., 805 So. 2d 1014, 1016 (Fla. 4th DCA
2001), we agreed with the Second District regarding the scope of the trial
court’s duty on remand and said:
When a case has once been decided on appeal the circuit court
is bound by the decree as the law of the case, and must carry
it into execution according to the mandate. That court cannot
vary it, or examine it for any other purpose than its execution;
or give any other further relief further than to settle so much
as has been remanded.
Id. (quoting Rinker Materials Corp. v. Holloway Materials Corp., 175 So. 2d
564, 565 (Fla. 2d DCA 1965)). This court continued its analysis of the
proper scope of a trial court’s authority on remand in Amir v. Amir, 925
So. 2d 1048 (Fla. 4th DCA 2006). In Amir, we said, “A basic principle of
appellate review is the trial court lacks the authority to deviate from or go
beyond the relief granted or instructions mandated by the appellate court.
After the issuance of a mandate, the trial court’s function is purely
ministerial.” Id. at 1050 (internal citation omitted).
In the case at hand, our directive to the trial court was clear and
unambiguous: “[W]e reverse the attorney’s fee award to the extent it fails
to make specific findings as to the number of hours reasonably expended,
and we remand for the trial court to make the requisite findings.”
Delmonico, 127 So. 3d at 580. The trial court then proceeded to choose a
different hourly rate than the stipulated rate agreed upon by the parties
and reduced the number of hours it determined had been reasonably
expended without providing any explanation. These actions deviated from
the mandate which directed the trial court only to explain its specific
finding as to the number of hours reasonably expended.
Additionally, had the lower court been free to revisit the hourly rate
used to calculate the fees owed, the record lacks any competent evidence
showing that $450 was the proper blended rate to apply. The rates used
in calculating the amount of the fees were never in dispute amongst the
parties and the sua sponte addition of a blended hourly rate was in excess
of the mandate of this court.
While a trial court has broad discretion when determining the
reasonable amount of attorney hours expended, “it is well-settled that an
award of attorney’s fees must be supported by substantial competent
evidence and contain express findings regarding the number of hours
reasonably expended . . . .” Mitchell v. Mitchell, 94 So. 3d 706, 707 (Fla.
4th DCA 2012). In Mitchell, we held:
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Here, the trial court’s order contains insufficient findings; it
does not comply with the requirement that the court make
express findings regarding the number of hours reasonably
expended . . . . Furthermore, the trial court’s order fails to
explain the basis for a reduction in fees which the court
determined was for “multiple lawyers on the same matter.”
While this reduction may have been warranted, the trial court
should make a specific finding explaining which work was
duplicative.
Id. at 707-08. The order under review in the instant case gives no
indication as to which hours among the 1960 expended by Appellant’s lead
counsel were disallowed, or why. Delmonico’s expert did not identify any
time expended by Appellant’s counsel that was not necessary.
Consequently, we are left in the position of having to speculate as to the
trial court’s specific findings for disallowance of the 226 hours. The trial
court’s lack of specific findings in its order renders the judgment incapable
of appellate review and accordingly is in error. See, e.g., Puleo v. Morris,
98 So. 3d 248, 249-50 (Fla. 2d DCA 2012) (finding trial court error “in
entering an order significantly reducing the requested amounts of
attorney’s fees without making any findings concerning the reasonable
hours expended, the reasonable hourly rates, or the specific reasons for
reducing the requested fees”).
Conclusion
Because the trial court substituted a blended hourly rate for the
stipulated rates provided in evidence and failed to make specific findings
as to the disallowed hours, the trial court exceeded this court’s mandate.
As such, we reverse the trial court’s order with instructions to recalculate
the total amount of fees awardable using the stipulated rates and to
provide specific findings as to which hours expended by Appellant’s lead
counsel were disallowed and the reason(s) for their disallowance.
Reversed and Remanded with instructions.
DAMOORGIAN, GERBER and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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