CITIZENS PROPERTY INSURANCE CORPORATION v. JOSEPH CASANAS AND NANCY CERVANTES

Third District Court of Appeal
State of Florida
Opinion filed October 27, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-322
Lower Tribunal No. 18-1723
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Citizens Property Insurance Corporation,
Appellant,
vs.
Joseph Casanas and Nancy Cervantes,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Martin Zilber,
Judge.
Luks, Santaniello, Petrillo & Cohen, and Lauren J. Smith (Stuart), for
appellant.
Alvarez, Feltman, Da Silva, & Costa, P.L., and Paul B. Feltman, for
appellees.
Before EMAS, LINDSEY and GORDO, JJ.
GORDO, J.
Citizens Property Insurance Company appeals the trial court’s order
granting plaintiffs’ motion for attorneys’ fees and entering a final judgment of
costs and fees in favor of plaintiffs’ counsel. We have jurisdiction. See Fla.
R. App. P. 9.030(b)(1)(A). Because the award of fees was not supported by
competent, substantial evidence, we reverse and remand.
FACTUAL AND PROCEDRUAL BACKGROUND
Plaintiffs in the underlying homeowners’ insurance case sustained
damage to their roof during Hurricane Irma in 2017, reported the loss to
Citizens and retained counsel to represent them before Citizens had an
opportunity to investigate the loss or determine coverage. Citizens ultimately
denied coverage after determining the damage was below the hurricane
deductible. Plaintiffs filed suit for underpayment of the claim in January
2018. The case was minimally litigated—there were no depositions taken,
no dispositive motions filed, few hearings, and no trial. The case settled in
mediation in January 2019. A judgment in the amount of $35,000 was
entered in favor of plaintiffs subject to motions for costs and fees.
Following the entry of judgment, the trial court held an evidentiary
hearing to calculate attorneys’ fees and costs. The court made factual
findings, concluded that the lodestar was $70,800 and added a 1.8 multiplier
for a fee of $127,440. The total fee award was for $150,600 including $9,360
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in litigation costs and a $13,800 fee for plaintiffs’ fee expert. The final award
of costs and fees was nearly five times the amount of the $35,000 settlement.
LEGAL ANALYSIS
Citizens appealed the award arguing that 1) the lodestar was
unsupported; 2) plaintiffs failed to present evidence that their attorneys were
unable to mitigate the risk of nonpayment and there was no competent,
substantial evidence that the relevant market required a multiplier; and 3) the
award of litigation costs was unsupported. While the appeal was pending
this Court issued its opinion in Universal Property & Casualty Insurance Co.
v. Deshpande, 314 So. 3d 416 (Fla. 3d DCA 2020). Deshpande, which
involved a remarkably similar homeowner’s insurance claim where counsel
was awarded an excessive and unsupported amount of attorneys’ fees,
governs the outcome of the instant case.
We approve the trial court’s findings, based on the evidence in the
record, that the hourly rates billed for each attorney were reasonable. We
cannot, however, affirm the lodestar amount because the record does not
contain competent, substantial evidence that the number of hours billed were
reasonable. See id. at 419. “The court did not make any specific findings
as to disputed time entries . . . . Nor did the court apply any particularized
reductions or make any findings as to the appropriateness of reductions.” Id.
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at 420. Rather, without explanation, the court adopted the plaintiffs’ fee
expert’s 10% blanket reduction to the number of hours expended, which we
found “arbitrary and unsupported” in Deshpande. Id. Accordingly, we
reverse the lodestar amount with instruction for the court to reduce the
number of hours billed to 81.1 hours—the only number for which there is
competent, substantial evidence adduced by the defendant’s fee expert
following a line-by-line accounting of the compensable hours. See id.(“[W]hen an attorney’s fee or cost order is appealed and the record on appeal
is devoid of competent substantial evidence to support the order, the
appellate court will reverse the award without remand.” (quoting Brake v.
Murphy, 736 So. 2d 745, 748 (Fla. 3d DCA 1999))).
We reverse the trial court’s application of a multiplier because the
record is devoid of evidence satisfying the Quanstrom1 factors. Here, the
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[T]he 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.
Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828, 834 (Fla. 1990).
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record contains “no evidence that [plaintiffs] could not have obtained other
competent counsel in this market absent the availability of a contingency fee
multiplier.” Deshpande, 314 So. 3d at 421; see USAA Cas. Ins. Co. v. Prime
Care Chiropractic Ctrs., P.A., 93 So. 3d 345, 347 (Fla. 2d DCA 2012) (“If
there is no evidence that the relevant market required a contingency fee
multiplier to obtain competent counsel, then a multiplier should not be
awarded.”). Nor did plaintiffs’ counsel establish that there was a risk of
nonpayment as the parties’ retainer agreement expressly provided for
counsel’s recovery of fees.
Finally, the award of litigation costs must be reversed. Plaintiffs
submitted two expert invoices but did not present any evidence regarding
the reasonableness of the litigation costs or whether they intended to call the
expert witnesses for trial. The trial court “awarded costs without making any
factual findings regarding which expenses would have been reasonably
necessary for an actual trial.” Deshpande, 314 So. 3d at 422; see Coastal
Petroleum Co. v. Mobil Oil Corp., 583 So. 2d 1022, 1025 (Fla. 1991).
Reversed and remanded.
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