DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
SANDRA FORTE,
Appellant,
v.
ALL COUNTY TOWING INC.,
Appellee.
No. 4D21-1379
[March 23, 2022]
Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; Nina W. Di Pietro, Judge; L.T. Case No. COCE20-
021603.
Eduardo A. Maura of Ayala Law, P.A., Miami, for appellant.
No appearance for appellee.
FORST, J.
Appellant Sandra Forte appeals an order granting attorney’s fees as to
both entitlement and amount in favor of Appellee All County Towing Inc.
(“Towing Company”). Appellant contends the trial court erred in: (1) failing
to hold an evidentiary hearing prior to awarding an attorney’s fees amount;
(2) concluding that Towing Company was entitled to attorney’s fees under
section 501.2105(1), Florida Statutes (2020) (part of Florida’s Deceptive
and Unfair Trade Practices Act (“FDUTPA”)), solely on account of its status
as the prevailing party; and (3) conducting a limited analysis of the factors
in Humane Society of Broward County, Inc. v. Florida Humane Society,
951
So. 2d 966 (Fla. 4th DCA 2007), based on such conclusion.
We agree that the trial court erred in failing to hold an evidentiary
hearing, and therefore reverse and remand for an evidentiary hearing
concerning a proper fee amount, as discussed below. We further agree
that the trial court erred in concluding Towing Company was
automatically entitled to attorney’s fees under section 501.2105(1) solely
on account of its status as the prevailing party. However, because the trial
court ultimately considered the Humane Society factors when granting
entitlement, and because competent, substantial evidence supports the
trial court’s determination, we affirm Towing Company’s entitlement to
attorney’s fees. 1
Background
Appellant brought suit against Towing Company, alleging that it
wrongfully towed Appellant’s vehicle from her apartment complex’s
parking lot for parking in a disabled parking space without a placard.2
Due to the parking spot’s purportedly improper marking, and because of
Towing Company’s actions in towing her vehicle despite “seeing that the
spot was not marked as [disabled],” Appellant alleged that Towing
Company violated sections 501.204 and 715.07, Florida Statutes (2020). 3
The case proceeded to a non-jury trial thereafter, resulting in a final
judgment in Towing Company’s favor.
As the prevailing party, Towing Company filed a motion to tax attorney’s
fees against Appellant. In the motion, Towing Company acknowledged the
discretionary nature of a FDUTPA attorney’s fees award under section
501.2105(1), Florida Statutes (2020). Nonetheless, Towing Company
claimed that it was automatically entitled to attorney’s fees as the
prevailing party, based upon language from the Florida Supreme Court’s
decision in Diamond Aircraft Industries, Inc. v. Horowitch,
107 So. 3d 362
(Fla. 2013).
Towing Company also attached a sworn affidavit of time and fees to its
motion to tax attorney’s fees. In total, Towing Company claimed
$12,887.00 in attorney’s fees, consisting of 23.4 billable hours attributable
to its attorney (at a stated rate of $550.00 per hour), and 0.2 billable hours
attributable to its attorney’s paralegal (at a stated rate of $85.00 per hour).
Appellant opposed Towing Company’s motion and affidavit. With
respect to the motion, Appellant argued that an award of FDUTPA
1 We affirm without discussion Appellant’s argument that the trial court
improperly considered Appellant’s settlement with another party in determining
fee entitlement.
2 Appellant also filed suit against the owner of her apartment complex. However,
reference to the action against the apartment complex is not pertinent to our
decision and has therefore been omitted.
3 Section 501.204 is part of FDUTPA and prohibits “[u]nfair methods of
competition, unconscionable acts or practices, and unfair or deceptive acts or
practices in the conduct of any trade or commerce . . . .” § 501.204(1), Fla. Stat.
(2020). Section 715.07, in turn, covers parking on private property and towing,
prohibiting a person from “improperly caus[ing] a vehicle or vessel to be removed
. . . .” § 715.07(4), Fla. Stat. (2020).
2
attorney’s fees under section 501.2105(1) is discretionary and not
mandatory. Moreover, Appellant asserted that the trial court was required
to consider the factors outlined in Humane Society of Broward County, Inc.
v. Florida Humane Society,
951 So. 2d 966 (Fla. 4th DCA 2007), prior to
any award of FDUTPA attorney’s fees—factors which she contended
weighed in her favor. As to Towing Company’s sworn affidavit, Appellant
argued that the affidavit contained seven hours that were “not recoverable
pursuant to the [FDUTPA] statute.”
The trial court held a hearing on Towing Company’s motion, wherein
the parties largely repeated their earlier positions. However, Towing
Company added that the trial court was not required to consider the
Humane Society factors post-Diamond Aircraft. In any event, Towing
Company discussed several of the Humane Society factors, arguing the
factors actually weighed in its favor. Appellant, on the other hand, added
that she would be “happy” to attend an evidentiary hearing to show her
inability to pay “a judgment that awards [Towing Company’s attorney]
$500 an hour, $13,000 in total.”
After hearing argument from both parties, the trial court was concerned
that Diamond Aircraft—which came several years after Humane Society—
did not “even deal with [the Humane Society] factors.” Thus, the trial court
provided Appellant the opportunity to file a supplemental memorandum
addressing Humane Society’s continued viability in light of the supreme
court’s Diamond Aircraft decision.
In response, Appellant filed a supplemental memorandum contending
that: (1) Diamond Aircraft did not reference Humane Society a single time
and therefore did not overrule it; (2) even the party moving for attorney’s
fees in Diamond Aircraft argued for application of the Humane Society
factors upon remand from the supreme court; (3) Diamond Aircraft did not
alter the discretionary nature of a FDUTPA attorney’s fees award under
section 501.2105(1); and (4) several federal cases (and one Florida
appellate case) cited to or applied Humane Society after Diamond Aircraft.
Further, Appellant again argued the Humane Society factors, requesting
“an evidentiary hearing to determine whether [she could] satisfy an award
of fees” in the event the trial court did not deny the motion.
Ultimately, the trial court granted Towing Company’s motion, clearly
disagreeing with Appellant concerning the supposedly mandatory nature
of the Humane Society factors. The court found that “[t]he Supreme Court
of Florida in Diamond Aircraft did not direct that a trial court complete an
additional analysis when deciding whether to exercise discretion and
award attorney’s fees to the prevailing party of a FDUTPA claim,” and that,
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under Diamond Aircraft, Towing Company was automatically entitled to
FDUTPA attorney’s fees on account of its status as the prevailing party.
In “the abundance of caution,” the trial court also considered the
Humane Society factors, finding that they weighed in Towing Company’s
favor and that Towing Company was therefore entitled to an award of
attorney’s fees. But in addition to awarding fee entitlement, the trial
court—referencing its review of Towing Company’s affidavit and
Appellant’s objections raised in opposition—awarded “20.7 hours of
attorney time at the rate of $550.00 per hour and 0.2 hours of paralegal
time at the rate of $85.00 per hour, for a total award of $11,555.00,”
without holding an evidentiary hearing. Appellant timely appealed
thereafter.
Analysis
“The standard of review of a trial court’s ruling on the issue of
entitlement to prevailing party attorney’s fees is abuse of discretion.”
Skylink Jets, Inc. v. Klukan,
308 So. 3d 1048, 1051 (Fla. 4th DCA 2020).
An award of attorney’s fees will be upheld on appeal so long as it is
supported by competent, substantial evidence. Freiman v. Nat’l City Mortg.
Co.,
183 So. 3d 1111, 1112 (Fla. 4th DCA 2015).
A. The Trial Court Erred in Failing to Hold an Evidentiary Hearing
“An award of attorney’s fees must . . . contain express findings
regarding the number of hours reasonably expended and a reasonable
hourly rate for the type of litigation involved.” Amanzimtoti Props., LLC v.
OCWEN Loan Servicing, LLC,
204 So. 3d 468, 468 (Fla. 4th DCA 2016)
(quoting Tutor Time Merger Corp. v. MeCabe,
763 So. 2d 505, 506 (Fla. 4th
DCA 2000)). “‘Reasonable attorney’s fees’ generally are not liquidated
damages and require a hearing. Absent an evidentiary hearing, the fee
award will be reversed for a hearing unless there is an indication that the
right to a hearing was waived.” Petrovsky v. HSBC Bank, USA,
185 So. 3d
700, 701 (Fla. 4th DCA 2016) (quoting Zumpf v. Countrywide Home Loans,
Inc.,
43 So. 3d 764, 766 (Fla. 2d DCA 2010)). Moreover, when there is an
objection to an attorney’s fee award, “a trial court cannot rely on affidavits
. . . to assess attorney’s fees, since they are hearsay.” Roggemann v. Bos.
Safe Deposit & Tr. Co.,
670 So. 2d 1073, 1075 (Fla. 4th DCA 1996).
Here, the trial court awarded 20.7 hours of attorney time and 0.2 hours
of paralegal time, totaling $11,555.00 in attorney’s fees. Before doing so,
the trial court failed to hold an evidentiary hearing. Thus, although the
trial court awarded less time than Towing Company requested, because
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Appellant did not waive the right to an evidentiary hearing, and because
Appellant in fact objected to seven of Towing Company’s requested billable
hours, the trial court reversibly erred in failing to hold an evidentiary
hearing prior to awarding a specific attorney’s fees amount. See Petrovsky,
185 So. 3d at 701; Roggemann,
670 So. 2d at 1075.
However, we note that while Appellant did request an evidentiary
hearing pertaining to her ability to pay an attorney’s fees amount,
Appellant did not challenge the reasonableness of Towing Company’s
requested hourly rate. Consequently, on remand, Appellant is limited to
challenging the number of hours reasonably expended when determining
the fee amount.
B. The Trial Court Misinterpreted Diamond Aircraft
Section 501.2105(1), Florida Statutes (2020), provides that: “[i]n any
civil litigation resulting from an act or practice involving a violation of
[FDUTPA], . . . the prevailing party . . . may receive his or her reasonable
attorney’s fees and costs from the nonprevailing party. § 501.2105(1), Fla.
Stat. (2020) (emphasis added). However, prior to a 1994 amendment,
section 501.2105(1) previously provided that: “[i]n any civil litigation
resulting from an act or practice involving a violation of [FDUTPA], . . . the
prevailing party . . . shall receive his reasonable attorney’s fees and costs
from the nonprevailing party.” Ch. 94-298, § 4, Laws of Fla. (emphasis
added). Thus, the 1994 amendment removed the mandatory character of
FDUTPA attorney’s fees, vesting the trial court with discretion to impose
such an award.
In Humane Society, this Court discussed section 501.2105(1) and its
1994 amendment in detail. Noting that the 1994 amendment “placed an
award of prevailing party attorney’s fees within the discretion of the trial
court,” the Court interpreted the amendment “as a legislative recognition
that mandatory fee awards had a chilling effect on consumer plaintiffs
bringing suit under FDUTPA.” Humane Soc’y,
951 So. 2d at 971.
Accordingly, after discussing the purpose behind the 1994 amendment,
the Court listed seven factors that a trial court might consider when
exercising its discretion in awarding FDUTPA attorney’s fees.
Id. at 971–
72.
Subsequently, in Diamond Aircraft, the Florida Supreme Court
considered four certified questions—only one of which is relevant for
purposes of our decision. Diamond Aircraft,
107 So. 3d at 364–65.
Specifically, the court examined whether section 501.2105 “entitle[s] a
prevailing defendant to an attorney’s fee award in a case in which a
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plaintiff brings [a FDUTPA claim], but the district court decides that the
substantive law of a different state governs the unfair trade practices claim,
and the defendant ultimately prevails on that claim.”
Id. at 366–67
(emphasis added). The court answered the question in the affirmative,
holding that the defendant was “entitled to attorney’s fees under section
501.2105(1) because [the plaintiff] . . . filed an action against [the
defendant] under FDUTPA and ultimately was the nonprevailing party.”
Id. at 369 (emphasis omitted).
We do not construe Diamond Aircraft as holding that a party was
entitled to attorney’s fees merely because it prevailed in a FDUTPA action,
nor as overruling Humane Society. In fact, in Diamond Aircraft, the trial
court found that the defendant was “not entitled to attorney’s fees under
FDUTPA because Arizona law and not FDUTPA applied to the deceptive
trade practices claim advanced by [the plaintiff].”
Id. at 366 (emphasis
added). In addressing the certified question thereafter, the Florida
Supreme Court was simply tasked with analyzing the defendant’s
entitlement to FDUTPA attorney’s fees based on the specific factual
scenario before it. Additionally, we find it notable that Diamond Aircraft
itself acknowledged that a “prevailing party in a FDUTPA action may
recover costs and attorney’s fees from the nonprevailing party.”
Id. at 367
(emphasis added). To interpret Diamond Aircraft otherwise—as providing
mandatory FDUTPA attorney’s fees—would abrogate section 501.2105(1)’s
plain language.
Case law, both State and federal, supports our determination that
Diamond Aircraft did not alter the discretionary nature of FDUTPA
attorney’s fees or overrule Humane Society. In Coral Gables Imports, Inc.
v. Suarez,
306 So. 3d 348 (Fla. 3d DCA 2020), the Third District noted the
discretion inherent in a FDUTPA attorney’s fees award, citing to Humane
Society in support.
Id. at 349 n.3. Moreover, in Chow v. Chak Yam Chau,
640 F. App’x 834 (11th Cir. 2015), the Eleventh Circuit Court of Appeals
cited to both Diamond Aircraft and Humane Society.
Id. at 837–39. In
doing so, the court acknowledged that section 501.2105(1) attorney’s fees
are discretionary, stating that “[o]nce a trial court has determined that a
party is a prevailing party under FDUTPA, it then has discretion to award
attorney’s fees and costs after considering various equitable factors,
including” the seven Humane Society factors, among others.
Id. at 838–
39. Consequently, we hold the trial court erred in interpreting Diamond
Aircraft contrary to section 501.2105(1)’s plain language, and that Humane
Society remains good law.
C. Fee Entitlement Was Supported by Competent, Substantial Evidence
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Having determined Humane Society is still good law, we next examine
the trial court’s analysis of the Humane Society factors.
In exercising its discretion [to award FDUTPA attorney’s fees],
factors that a trial court might consider include, but are not
limited to:
(1) the scope and history of the litigation;
(2) the ability of the opposing party to satisfy an award
of fees;
(3) whether an award of fees against the opposing party
would deter others from acting in similar
circumstances;
(4) the merits of the respective positions—including the
degree of the opposing party’s culpability or bad faith;
(5) whether the claim brought was not in subjective bad
faith but frivolous, unreasonable, groundless;
(6) whether the defense raised a defense mainly to
frustrate or stall; [and]
(7) whether the claim brought was to resolve a
significant legal question under FDUTPA law.
Humane Soc’y,
951 So. 2d at 971–72 (emphasis added).
In the instant case, the trial court found that, although Appellant was
in no position to satisfy an attorney’s fees award, the remainder of the
Humane Society factors weighed in Towing Company’s favor. Because the
trial court explicitly stated that it had considered the Humane Society
factors, making reasonable findings connected to several of the factors, it
cannot be said that the trial court abused its discretion in finding Towing
Company entitled to a FDUTPA attorney’s fees award. Nor can it be said
that no competent substantial evidence supports the trial court’s
determination. This is especially the case considering the Humane Society
factors are merely a non-exclusive list of factors that a trial court might
consider. Humane Soc’y,
951 So. 2d at 971. We therefore affirm Towing
Company’s entitlement to attorney’s fees.
Conclusion
The trial court erred in failing to hold an evidentiary hearing despite
Appellant never waiving her right to such a hearing and specifically
objecting to Towing Company’s claimed number of hours. We therefore
reverse and remand for an evidentiary hearing concerning the number of
hours reasonably expended by Towing Company’s attorney. However, as
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to fee entitlement, because the trial court ultimately considered several
Humane Society factors, and because competent, substantial evidence
supports the trial court’s determination, we affirm Towing Company’s
entitlement to attorney’s fees. We note that, upon the conclusion of the
evidentiary hearing below, the trial court is not precluded from ultimately
assessing the same fee amount.
Affirmed in part, reversed in part, and remanded with directions.
CONNER, C.J., and KUNTZ, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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