43
Fla. L. Weekly D353b
Fla. L. Weekly D353b
Insurance
— Attorney’s fees — Insured prevailing in action against insurer —
Contingent fee multiplier — Trial court’s award of contingent fee multiplier
without making a finding as to whether market required the multiplier was an
error apparent on face of record, so that transcript of evidentiary hearing is
not required for appellate court to reverse award and remand to trial court to
consider issue anew
— Attorney’s fees — Insured prevailing in action against insurer —
Contingent fee multiplier — Trial court’s award of contingent fee multiplier
without making a finding as to whether market required the multiplier was an
error apparent on face of record, so that transcript of evidentiary hearing is
not required for appellate court to reverse award and remand to trial court to
consider issue anew
CITIZENS PROPERTY INSURANCE
CORPORATION, Appellant, v. MEGHAN ANDERSON, Appellee. 2nd District. Case No.
2D16-616. Opinion filed February 14, 2018. Appeal from the Circuit Court for
Pasco County; Linda H. Babb, Judge. Counsel: Scot E. Samis of Traub Lieberman
Straus & Shrewsberry LLP, St. Petersburg, for Appellant. Mark A. Nation and
Paul W. Pritchard of The Nation Law Firm, Longwood, for Appellee.
CORPORATION, Appellant, v. MEGHAN ANDERSON, Appellee. 2nd District. Case No.
2D16-616. Opinion filed February 14, 2018. Appeal from the Circuit Court for
Pasco County; Linda H. Babb, Judge. Counsel: Scot E. Samis of Traub Lieberman
Straus & Shrewsberry LLP, St. Petersburg, for Appellant. Mark A. Nation and
Paul W. Pritchard of The Nation Law Firm, Longwood, for Appellee.
(MORRIS, Judge.) Citizens Property
Insurance Corporation appeals a final judgment awarding attorneys’ fees,
including a 1.7 contingent fee multiplier,1 to Meghan Anderson. The fee award was
based on the verdict rendered in Anderson’s favor in her breach of contract
action against Citizens for failure to pay for a sinkhole loss. After
prevailing at trial, Anderson sought attorneys’ fees and costs pursuant to
sections 57.041, 92.231, and 627.428, Florida Statutes (2014). Following an
evidentiary hearing that was conducted without a court reporter, the trial
court awarded a total of $493,246.50 in attorneys’ fees which included the 1.7
contingent fee multiplier. Citizens argues that the trial court’s failure to
make a finding as to whether the market required a contingent fee multiplier
pursuant to Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 2d 828
(Fla. 1990), is an error apparent on the face of the record and, therefore,
that the transcript of the evidentiary hearing is not required. We agree and
reverse the trial court’s order.
Insurance Corporation appeals a final judgment awarding attorneys’ fees,
including a 1.7 contingent fee multiplier,1 to Meghan Anderson. The fee award was
based on the verdict rendered in Anderson’s favor in her breach of contract
action against Citizens for failure to pay for a sinkhole loss. After
prevailing at trial, Anderson sought attorneys’ fees and costs pursuant to
sections 57.041, 92.231, and 627.428, Florida Statutes (2014). Following an
evidentiary hearing that was conducted without a court reporter, the trial
court awarded a total of $493,246.50 in attorneys’ fees which included the 1.7
contingent fee multiplier. Citizens argues that the trial court’s failure to
make a finding as to whether the market required a contingent fee multiplier
pursuant to Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 2d 828
(Fla. 1990), is an error apparent on the face of the record and, therefore,
that the transcript of the evidentiary hearing is not required. We agree and
reverse the trial court’s order.
I. BACKGROUND
Because this appeal involves an
attorneys’ fees award — rather than the underlying civil judgment — a
complete recitation of the facts underlying the breach of contract action is
unnecessary. Rather, it is sufficient to note that there was a dispute between
Anderson and Citizens as to whether cracking damage in her home was caused by a
sinkhole. Ultimately, Citizens denied Anderson’s sinkhole claim, and Anderson
filed suit. The jury rendered a verdict in Anderson’s favor and awarded her
$84,000. Shortly thereafter, she filed her motion for attorneys’ fees.
attorneys’ fees award — rather than the underlying civil judgment — a
complete recitation of the facts underlying the breach of contract action is
unnecessary. Rather, it is sufficient to note that there was a dispute between
Anderson and Citizens as to whether cracking damage in her home was caused by a
sinkhole. Ultimately, Citizens denied Anderson’s sinkhole claim, and Anderson
filed suit. The jury rendered a verdict in Anderson’s favor and awarded her
$84,000. Shortly thereafter, she filed her motion for attorneys’ fees.
It is undisputed that Anderson did
not testify at the fee hearing. The court did take testimony from counsel for
both parties and from the parties’ experts, but the hearing was not
transcribed.
not testify at the fee hearing. The court did take testimony from counsel for
both parties and from the parties’ experts, but the hearing was not
transcribed.
In the judgment awarding attorneys’
fees, the trial court awarded $290,145 in base attorneys’ fees which was the
total amount of fees for four attorneys who represented Anderson with each
being awarded the equivalent of $500-$600 per hour. On the issue of the 1.7
contingent fee multiplier, the trial court found the use of the multiplier was
appropriate under the guidelines set forth in Florida Patient’s Compensation
Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), and Quanstrom. As a
further basis for applying the multiplier, the court explained that “at the
outset of the handling of the case, [Anderson’s] chances of success were 50/50”
and that out of all the sinkholes cases tried by the trial court, “there have
only been two cases won by the policyholder.” The total attorneys’ fees award
after application of the 1.7 contingent fee multiplier, but exclusive of costs
and interest, came to $493,246.50.
fees, the trial court awarded $290,145 in base attorneys’ fees which was the
total amount of fees for four attorneys who represented Anderson with each
being awarded the equivalent of $500-$600 per hour. On the issue of the 1.7
contingent fee multiplier, the trial court found the use of the multiplier was
appropriate under the guidelines set forth in Florida Patient’s Compensation
Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), and Quanstrom. As a
further basis for applying the multiplier, the court explained that “at the
outset of the handling of the case, [Anderson’s] chances of success were 50/50”
and that out of all the sinkholes cases tried by the trial court, “there have
only been two cases won by the policyholder.” The total attorneys’ fees award
after application of the 1.7 contingent fee multiplier, but exclusive of costs
and interest, came to $493,246.50.
After filing its appeal from the
attorneys’ fee judgment, Citizens moved to relinquish jurisdiction to the trial
court so that Citizens could, pursuant to Florida Rule of Appellate Procedure
9.200(b)(4), seek preparation of a statement of the evidence in lieu of a
transcript of the fee hearing. However, the parties could not agree on the
substance of such a statement, and the trial court judge indicated she had an
insufficient memory of the witnesses’ testimony. As a result, this appeal comes
to us without a transcript, and the trial court’s order on the proposed
statement of the evidence lists only the names of the witnesses who testified
and the documentary evidence that was presented.
attorneys’ fee judgment, Citizens moved to relinquish jurisdiction to the trial
court so that Citizens could, pursuant to Florida Rule of Appellate Procedure
9.200(b)(4), seek preparation of a statement of the evidence in lieu of a
transcript of the fee hearing. However, the parties could not agree on the
substance of such a statement, and the trial court judge indicated she had an
insufficient memory of the witnesses’ testimony. As a result, this appeal comes
to us without a transcript, and the trial court’s order on the proposed
statement of the evidence lists only the names of the witnesses who testified
and the documentary evidence that was presented.
II. ANALYSIS
We review an order applying a
multiplier to a fee award for abuse of discretion. USAA Cas. Ins. Co. v.
Prime Care Chiropractic Ctrs., P.A., 93 So. 3d 345, 347 (Fla. 2d DCA 2012).
We must reverse the application of a multiplier if it is not supported by
competent, substantial evidence. Id. Reversal is also required if a trial
court fails to include specific findings supporting the application of a
multiplier. Speer v. Mason, 769 So. 2d 1102, 1105 (Fla. 4th DCA 2000); Dep’t
of Agric. & Consumer Servs. v. Schick, 553 So. 2d 361, 362 (Fla. 1st
DCA 1989) (explaining that judgments are deficient if they fail to include
specific findings to support an enhancement factor in attorneys’ fees awards).
multiplier to a fee award for abuse of discretion. USAA Cas. Ins. Co. v.
Prime Care Chiropractic Ctrs., P.A., 93 So. 3d 345, 347 (Fla. 2d DCA 2012).
We must reverse the application of a multiplier if it is not supported by
competent, substantial evidence. Id. Reversal is also required if a trial
court fails to include specific findings supporting the application of a
multiplier. Speer v. Mason, 769 So. 2d 1102, 1105 (Fla. 4th DCA 2000); Dep’t
of Agric. & Consumer Servs. v. Schick, 553 So. 2d 361, 362 (Fla. 1st
DCA 1989) (explaining that judgments are deficient if they fail to include
specific findings to support an enhancement factor in attorneys’ fees awards).
Citizens contends that there is
insufficient evidence in the record regarding whether the market required the
application of a contingent fee multiplier, and it argues that the final
judgment is erroneous on its face because it fails to include a finding as to
that factor. While the lack of a transcript or stipulated statement of the
facts might require an affirmance in other cases, that rule is not applicable
where a trial court order is fundamentally erroneous on its face for failure to
make required findings. See Wolfe v. Nazaire, 758 So. 2d 730, 733
(Fla. 4th DCA 2000) (reversing and remanding attorneys’ fees award despite lack
of a transcript where court failed to explain its reasons for using a
multiplier); Guardianship of Halpert v. Martin S. Rosenbloom, P.A., 698
So. 2d 938, 939-40 (Fla. 4th DCA 1997) (reversing and remanding attorneys’ fees
award despite lack of transcript where order failed to contain findings as to
the hourly rate or the number of hours reasonably expended); Giltex Corp. v.
Diehl, 583 So. 2d 734, 735 (Fla. 1st DCA 1991) (reversing and remanding
attorneys’ fees award despite lack of a transcript where order failed to
contain findings required by Rowe).
insufficient evidence in the record regarding whether the market required the
application of a contingent fee multiplier, and it argues that the final
judgment is erroneous on its face because it fails to include a finding as to
that factor. While the lack of a transcript or stipulated statement of the
facts might require an affirmance in other cases, that rule is not applicable
where a trial court order is fundamentally erroneous on its face for failure to
make required findings. See Wolfe v. Nazaire, 758 So. 2d 730, 733
(Fla. 4th DCA 2000) (reversing and remanding attorneys’ fees award despite lack
of a transcript where court failed to explain its reasons for using a
multiplier); Guardianship of Halpert v. Martin S. Rosenbloom, P.A., 698
So. 2d 938, 939-40 (Fla. 4th DCA 1997) (reversing and remanding attorneys’ fees
award despite lack of transcript where order failed to contain findings as to
the hourly rate or the number of hours reasonably expended); Giltex Corp. v.
Diehl, 583 So. 2d 734, 735 (Fla. 1st DCA 1991) (reversing and remanding
attorneys’ fees award despite lack of a transcript where order failed to
contain findings required by Rowe).
The dissent would have us affirm
based on Citizens’ failure to provide a transcript or a stipulated statement of
the facts, citing Esaw v. Esaw, 965 So. 2d 1261, 1264 (Fla. 2d DCA
2007), for the proposition that “[t]he most salient impediment to meaningful
review of the trial court’s decision is not the absence of findings, but the
absence of a transcript.” However, Esaw did not involve the issue of an
award of attorneys’ fees, and notably, we acknowledged
based on Citizens’ failure to provide a transcript or a stipulated statement of
the facts, citing Esaw v. Esaw, 965 So. 2d 1261, 1264 (Fla. 2d DCA
2007), for the proposition that “[t]he most salient impediment to meaningful
review of the trial court’s decision is not the absence of findings, but the
absence of a transcript.” However, Esaw did not involve the issue of an
award of attorneys’ fees, and notably, we acknowledged
that there
are circumstances in which a claim of inadequate findings can lead to reversal
even in the absence of a transcript or appropriate substitute. In particular, an
award of attorney’s fees without adequate findings justifying the amount of the
award is reversible even where the appellant has provided an inadequate record
of the trial court proceedings.
are circumstances in which a claim of inadequate findings can lead to reversal
even in the absence of a transcript or appropriate substitute. In particular, an
award of attorney’s fees without adequate findings justifying the amount of the
award is reversible even where the appellant has provided an inadequate record
of the trial court proceedings.
Id. at 1265 (emphasis added). This is the type of case
referenced in Esaw.
referenced in Esaw.
In setting reasonable attorneys’
fees, Florida courts use the federal lodestar approach which requires a
determination of the number of hours reasonably expended multiplied by a
reasonable hourly rate. See Rowe, 472 So. 2d at 1150-51. Once the
lodestar amount is determined, the trial court may add or subtract from that
amount based upon a “contingency risk” factor and the “results obtained.” Id.
at 1151; see also Quanstrom, 555 So. 2d at 831.
fees, Florida courts use the federal lodestar approach which requires a
determination of the number of hours reasonably expended multiplied by a
reasonable hourly rate. See Rowe, 472 So. 2d at 1150-51. Once the
lodestar amount is determined, the trial court may add or subtract from that
amount based upon a “contingency risk” factor and the “results obtained.” Id.
at 1151; see also Quanstrom, 555 So. 2d at 831.
In determining whether a contingent
fee multiplier is necessary in a contract case — such as this one — the trial
court should consider
fee multiplier is necessary in a contract case — such as this one — the trial
court should consider
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 . . . 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.
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 . . . 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.
Quanstrom, 555 So. 2d at 834; see also Prime Care
Chiropractic Ctrs., P.A., 93 So. 3d at 347. “Evidence of these factors must
be presented to justify the utilization of a multiplier.” Quanstrom, 555
So. 2d at 834; see also Bell v. U.S.B. Acquisition Co., Inc., 734
So. 2d 403, 410 (Fla. 1999) (recognizing that courts may consider applying
multiplier “if evidence in the record supports the need for one”). “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.” Prime
Care Chiropractic Ctrs., P.A., 93 So. 3d at 347. And “[i]f the court
decides to adjust the lodestar, it must state the grounds on which it justifies
the enhancement or reduction.” Rowe, 472 So. 2d at 1151; Wolfe, 758
So. 2d at 733; Giltex Corp., 583 So. 2d at 735. Indeed, Rowe
holds that trial courts must make specific findings as to “the hourly
rate, the number of hours reasonably expended, and the appropriateness of
the reduction or enhancement factors.” 472 So. 2d at 1151 (emphasis added).
Chiropractic Ctrs., P.A., 93 So. 3d at 347. “Evidence of these factors must
be presented to justify the utilization of a multiplier.” Quanstrom, 555
So. 2d at 834; see also Bell v. U.S.B. Acquisition Co., Inc., 734
So. 2d 403, 410 (Fla. 1999) (recognizing that courts may consider applying
multiplier “if evidence in the record supports the need for one”). “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.” Prime
Care Chiropractic Ctrs., P.A., 93 So. 3d at 347. And “[i]f the court
decides to adjust the lodestar, it must state the grounds on which it justifies
the enhancement or reduction.” Rowe, 472 So. 2d at 1151; Wolfe, 758
So. 2d at 733; Giltex Corp., 583 So. 2d at 735. Indeed, Rowe
holds that trial courts must make specific findings as to “the hourly
rate, the number of hours reasonably expended, and the appropriateness of
the reduction or enhancement factors.” 472 So. 2d at 1151 (emphasis added).
Here, the final judgment awarding
attorneys’ fees states that the case was “appropriate for the use of a
multiplier under the Rowe and Quanstrom guidelines.” Beyond that
conclusory statement, the only rationale provided by the trial court involved
Anderson’s chance of prevailing and a reference to the number of other sinkhole
cases that the trial court had tried wherein the policyholder won. The dissent
notes that the trial court also stated that “this case was by far the best tried
sinkhole case [she had] ever seen.” But that statement was made in the context
of the trial court’s determination of a reasonable hourly rate, not in the
finding relating to the application of the contingent fee multiplier.
Furthermore, it is merely an opinion, not a factual finding relating to whether
the relevant market required the application of the contingent fee multiplier.
There was simply no specific finding regarding any difficulty Anderson
might have experienced in retaining counsel to handle the case, nor was there
any other specific finding regarding the relevant market which would
support application of the contingent fee multiplier. And it is undisputed that
Anderson did not testify so she clearly did not provide testimony on this
issue.3
attorneys’ fees states that the case was “appropriate for the use of a
multiplier under the Rowe and Quanstrom guidelines.” Beyond that
conclusory statement, the only rationale provided by the trial court involved
Anderson’s chance of prevailing and a reference to the number of other sinkhole
cases that the trial court had tried wherein the policyholder won. The dissent
notes that the trial court also stated that “this case was by far the best tried
sinkhole case [she had] ever seen.” But that statement was made in the context
of the trial court’s determination of a reasonable hourly rate, not in the
finding relating to the application of the contingent fee multiplier.
Furthermore, it is merely an opinion, not a factual finding relating to whether
the relevant market required the application of the contingent fee multiplier.
There was simply no specific finding regarding any difficulty Anderson
might have experienced in retaining counsel to handle the case, nor was there
any other specific finding regarding the relevant market which would
support application of the contingent fee multiplier. And it is undisputed that
Anderson did not testify so she clearly did not provide testimony on this
issue.3
We acknowledge that Anderson
presented witnesses at the hearing, though we do not know the substance of
their testimony due to the lack of a transcript or a more thorough statement of
the evidence. We further acknowledge that the First District has held that
expert testimony can be sufficient to support the application of a multiplier. See
Massie v. Progressive Express Ins. Co., 25 So. 3d 584, 585 (Fla. 1st DCA
2009). Anderson asks us to affirm based on the assumption that the expert
testimony provided at the hearing could have supported the application of the
multiplier, and Anderson cites to a case wherein the appellate court affirmed
based on lack of a transcript after refusing to speculate as to whether the
trial court made oral findings at a hearing. Cf. Nunes v. Nunes,
112 So. 3d 696, 700-01 (Fla. 4th DCA 2013). But as we have already explained,
because the trial court awarded attorneys’ fees pursuant to Rowe and Quanstrom,
it was required to make specific findings on any enhancement factors,
including the issue of the contingent fee multiplier. Esaw, 965 So. 2d
at 1265. And under the unusual circumstances here, we simply cannot affirm due
to lack of a transcript or a more thorough statement of the evidence. The trial
court itself was unable to remember the testimony presented at the fee hearing.
If the trial court itself cannot remember the basis for its award, then we will
not assume Anderson presented sufficient evidence or that the trial court made
any oral findings regarding whether the relevant market required application of
the contingent fee multiplier.
presented witnesses at the hearing, though we do not know the substance of
their testimony due to the lack of a transcript or a more thorough statement of
the evidence. We further acknowledge that the First District has held that
expert testimony can be sufficient to support the application of a multiplier. See
Massie v. Progressive Express Ins. Co., 25 So. 3d 584, 585 (Fla. 1st DCA
2009). Anderson asks us to affirm based on the assumption that the expert
testimony provided at the hearing could have supported the application of the
multiplier, and Anderson cites to a case wherein the appellate court affirmed
based on lack of a transcript after refusing to speculate as to whether the
trial court made oral findings at a hearing. Cf. Nunes v. Nunes,
112 So. 3d 696, 700-01 (Fla. 4th DCA 2013). But as we have already explained,
because the trial court awarded attorneys’ fees pursuant to Rowe and Quanstrom,
it was required to make specific findings on any enhancement factors,
including the issue of the contingent fee multiplier. Esaw, 965 So. 2d
at 1265. And under the unusual circumstances here, we simply cannot affirm due
to lack of a transcript or a more thorough statement of the evidence. The trial
court itself was unable to remember the testimony presented at the fee hearing.
If the trial court itself cannot remember the basis for its award, then we will
not assume Anderson presented sufficient evidence or that the trial court made
any oral findings regarding whether the relevant market required application of
the contingent fee multiplier.
The dissent suggests that we are
concluding that there was insufficient evidence presented to the trial court on
the issue of the contingent fee multiplier. We make no such conclusion. Rather,
we simply refuse to make an assumption that competent, substantial evidence was
presented in these unusual circumstances where the trial court’s inability to
recall any of the testimony has prevented us from otherwise concluding
that the trial court considered the issue of whether the relevant market
required the application of the contingent fee multiplier and where the order
is deficient on its face for failing to contain the required finding on that
issue. Cf. Speer, 769 So. 2d at 1104-05 (concluding that where
trial court approved a statement of the evidence that included some facts
specifically recalled by the judge, the judge’s inability to have total recall
of the entire proceedings did not “render the record inadequate” because the
appellant conceded the record was “nonetheless sufficient to justify
entitlement to a multiplier” (emphasis added)).
concluding that there was insufficient evidence presented to the trial court on
the issue of the contingent fee multiplier. We make no such conclusion. Rather,
we simply refuse to make an assumption that competent, substantial evidence was
presented in these unusual circumstances where the trial court’s inability to
recall any of the testimony has prevented us from otherwise concluding
that the trial court considered the issue of whether the relevant market
required the application of the contingent fee multiplier and where the order
is deficient on its face for failing to contain the required finding on that
issue. Cf. Speer, 769 So. 2d at 1104-05 (concluding that where
trial court approved a statement of the evidence that included some facts
specifically recalled by the judge, the judge’s inability to have total recall
of the entire proceedings did not “render the record inadequate” because the
appellant conceded the record was “nonetheless sufficient to justify
entitlement to a multiplier” (emphasis added)).
The dissent also argues that the
findings in the order were sufficient because the trial court indicated that it
had expressed its reasoning in further detail at the hearing. However, that
reference was made in the portion of the trial court’s order entitled “Hourly
Rate” wherein the trial court explained that after “[c]onsidering [the] factors
[set forth in Rowe], and for the reasons expressed at the hearing, the
Court finds that the following hourly rates are reasonable for Plaintiff’s
counsel in this case.” In another portion of the order separately entitled
“Contingent Fee Multiplier,” the trial court makes no reference to any findings
it previously made on this issue. Thus, contrary to the dissent’s assertion, we
are not speculating about the substance of the trial court’s oral findings.
Rather, we merely refer to the order itself to determine whether the trial
court made the required findings relating to the contingent fee multiplier. Yet
even if that statement related to the application of the contingent fee
multiplier, we would be constrained to reverse. A trial court’s generic
reference to “reasons expressed at the hearing” is not the equivalent of a specific
finding that the relevant market required the application of a contingent fee
multiplier. Indeed, there could be any number of “reasons” on any number of
topics that a trial court orally expresses at a hearing. Rather than improperly
exceeding the scope of our review, we are simply holding the trial court to its
responsibility to include specific findings on an enhancement factor
pursuant to Rowe and Quanstrom and we are refusing to speculate
on what might have occurred at the fee hearing where the trial court itself is
unable to remember what testimony was presented.
findings in the order were sufficient because the trial court indicated that it
had expressed its reasoning in further detail at the hearing. However, that
reference was made in the portion of the trial court’s order entitled “Hourly
Rate” wherein the trial court explained that after “[c]onsidering [the] factors
[set forth in Rowe], and for the reasons expressed at the hearing, the
Court finds that the following hourly rates are reasonable for Plaintiff’s
counsel in this case.” In another portion of the order separately entitled
“Contingent Fee Multiplier,” the trial court makes no reference to any findings
it previously made on this issue. Thus, contrary to the dissent’s assertion, we
are not speculating about the substance of the trial court’s oral findings.
Rather, we merely refer to the order itself to determine whether the trial
court made the required findings relating to the contingent fee multiplier. Yet
even if that statement related to the application of the contingent fee
multiplier, we would be constrained to reverse. A trial court’s generic
reference to “reasons expressed at the hearing” is not the equivalent of a specific
finding that the relevant market required the application of a contingent fee
multiplier. Indeed, there could be any number of “reasons” on any number of
topics that a trial court orally expresses at a hearing. Rather than improperly
exceeding the scope of our review, we are simply holding the trial court to its
responsibility to include specific findings on an enhancement factor
pursuant to Rowe and Quanstrom and we are refusing to speculate
on what might have occurred at the fee hearing where the trial court itself is
unable to remember what testimony was presented.
The trial court’s inability to
recall any of the testimony presented in this case leaves us in the same review
posture as the court in Wolfe, where no testimony was provided. 758 So.
2d at 733. And though Rosenbloom did not involve the application of the
multiplier, it supports our conclusion that a reversal is required, even in the
absence of a transcript, where an order fails to contain specific findings
pursuant to Rowe. While we acknowledge that the order here contains
minimal findings relating to the reasonable hourly rates and reasonable hours
expended, Rowe also requires specific findings on the
“appropriateness of the reduction or enhancement factors.” 472 So. 2d at 1151.
Thus the principle espoused in Rosenbloom is applicable here,
particularly where the Rosenbloom court implied that findings relating
to the multiplier enhancement are even more critical than findings on the other
factors.4 The dissent asserts that it is important
for the contingent fee multiplier to be considered “any time the requirements
for a multiplier are met,” and we do not disagree with that proposition.
However, in this case, under these facts, we cannot determine whether the
requirements were met. And it is precisely because of the important nature of
the contingent fee multiplier that Florida law requires a specific finding on
that issue. The dissent’s conclusion that the findings and reasoning provided
by the trial court here are sufficient because the trial court determined a
reasonable hourly rate and the number of hours reasonably expended stops short
of the Rowe requirements as clarified by Quanstrom.
recall any of the testimony presented in this case leaves us in the same review
posture as the court in Wolfe, where no testimony was provided. 758 So.
2d at 733. And though Rosenbloom did not involve the application of the
multiplier, it supports our conclusion that a reversal is required, even in the
absence of a transcript, where an order fails to contain specific findings
pursuant to Rowe. While we acknowledge that the order here contains
minimal findings relating to the reasonable hourly rates and reasonable hours
expended, Rowe also requires specific findings on the
“appropriateness of the reduction or enhancement factors.” 472 So. 2d at 1151.
Thus the principle espoused in Rosenbloom is applicable here,
particularly where the Rosenbloom court implied that findings relating
to the multiplier enhancement are even more critical than findings on the other
factors.4 The dissent asserts that it is important
for the contingent fee multiplier to be considered “any time the requirements
for a multiplier are met,” and we do not disagree with that proposition.
However, in this case, under these facts, we cannot determine whether the
requirements were met. And it is precisely because of the important nature of
the contingent fee multiplier that Florida law requires a specific finding on
that issue. The dissent’s conclusion that the findings and reasoning provided
by the trial court here are sufficient because the trial court determined a
reasonable hourly rate and the number of hours reasonably expended stops short
of the Rowe requirements as clarified by Quanstrom.
The order under review is
fundamentally erroneous on its face because it fails to contain a specific
finding regarding whether the relevant market required the application of the
contingent fee multiplier. And under the unique facts of this case, we are
unable to determine what, if any, evidence was presented on that issue or even
whether the trial court considered it.5 Cf. In re Guardianship of
Ansley, 94 So. 3d 711, 714 (Fla. 2d DCA 2012) (reversing and remanding fee
award which failed to contain meaningful factual findings pursuant to Rowe
thereby leaving us “unable to determine the basis for the circuit court’s
award” as well as unable to “determine whether there is competent, substantial
evidence in the record to support the award”).
fundamentally erroneous on its face because it fails to contain a specific
finding regarding whether the relevant market required the application of the
contingent fee multiplier. And under the unique facts of this case, we are
unable to determine what, if any, evidence was presented on that issue or even
whether the trial court considered it.5 Cf. In re Guardianship of
Ansley, 94 So. 3d 711, 714 (Fla. 2d DCA 2012) (reversing and remanding fee
award which failed to contain meaningful factual findings pursuant to Rowe
thereby leaving us “unable to determine the basis for the circuit court’s
award” as well as unable to “determine whether there is competent, substantial
evidence in the record to support the award”).
In concluding that a reversal is
required, we are not radically shifting the law or extending the holding of Rowe
and Quanstrom to require written findings in all instances. We
acknowledge that a trial court can make oral findings in support of a fee
award. Yet in this case there is simply nothing to indicate that the trial
court made oral findings on the issue. There is no transcript of the hearing,
there is no reference in the order to even an oral finding on the issue of
whether the market required the application of the contingent fee multiplier,
and the trial judge conceded that she did not remember what transpired at the
hearing. It is the combination of these unusual facts that requires us to
reverse in this case. But we do not mean to suggest that a reversal
would be required in any case where a trial court fails to include a written
finding on a factor in awarding attorneys’ fees. This is simply a case where
the lack of a transcript does not preclude reversal because the order is
insufficient on its face. See Esaw, 965 So. 2d at 1265.
required, we are not radically shifting the law or extending the holding of Rowe
and Quanstrom to require written findings in all instances. We
acknowledge that a trial court can make oral findings in support of a fee
award. Yet in this case there is simply nothing to indicate that the trial
court made oral findings on the issue. There is no transcript of the hearing,
there is no reference in the order to even an oral finding on the issue of
whether the market required the application of the contingent fee multiplier,
and the trial judge conceded that she did not remember what transpired at the
hearing. It is the combination of these unusual facts that requires us to
reverse in this case. But we do not mean to suggest that a reversal
would be required in any case where a trial court fails to include a written
finding on a factor in awarding attorneys’ fees. This is simply a case where
the lack of a transcript does not preclude reversal because the order is
insufficient on its face. See Esaw, 965 So. 2d at 1265.
Finally, we note that we have not
overlooked the recent Florida Supreme Court decision in Joyce v. Federated
National Insurance Co., 228 So. 3d 1122 (Fla. 2017). We acknowledge that
the court clarified that the contingent fee multiplier is not limited to rare
and exceptional circumstances and that it should be considered whenever the
requirements for its application are met. Id. at 1131-32. In reversing
the order here, we are not, as the dissent suggests, applying a stricter
standard for application of the multiplier than is required by Rowe and Quanstrom.
Rather, we are refusing to presume — under the unusual facts of this case —
that the required specific findings were or were not made below. And we
note that our reversal does not mean that Anderson will not ultimately prevail
in obtaining an award of attorneys’ fees that includes a contingent fee
multiplier. The reversal simply remands the case back to the trial court to
consider the issue anew.
overlooked the recent Florida Supreme Court decision in Joyce v. Federated
National Insurance Co., 228 So. 3d 1122 (Fla. 2017). We acknowledge that
the court clarified that the contingent fee multiplier is not limited to rare
and exceptional circumstances and that it should be considered whenever the
requirements for its application are met. Id. at 1131-32. In reversing
the order here, we are not, as the dissent suggests, applying a stricter
standard for application of the multiplier than is required by Rowe and Quanstrom.
Rather, we are refusing to presume — under the unusual facts of this case —
that the required specific findings were or were not made below. And we
note that our reversal does not mean that Anderson will not ultimately prevail
in obtaining an award of attorneys’ fees that includes a contingent fee
multiplier. The reversal simply remands the case back to the trial court to
consider the issue anew.
We therefore reverse the attorneys’
fees award and remand for further proceedings in conformance with this opinion.
fees award and remand for further proceedings in conformance with this opinion.
Reversed and remanded. (BLACK, J.,
Concurs. KHOUZAM, J., Dissents with opinion.)
Concurs. KHOUZAM, J., Dissents with opinion.)
__________________
1Although this enhancement is
frequently referred to as a contingency fee multiplier, we refer to it
in the manner used by the trial court.
frequently referred to as a contingency fee multiplier, we refer to it
in the manner used by the trial court.
2Although
Citizens generally asserts that the trial court’s order was deficient for
failing to mention any of the Quanstrom criteria, Citizens primarily
focuses on the first factor pertaining to whether the relevant market requires
the application of a contingent fee multiplier. “A primary rationale for the
contingency risk multiplier is to provide access to competent counsel for those
who could not otherwise afford it.” Bell v. U.S.B. Acquisition Co., Inc.,
734 So. 2d 403, 411 (Fla. 1999).
Citizens generally asserts that the trial court’s order was deficient for
failing to mention any of the Quanstrom criteria, Citizens primarily
focuses on the first factor pertaining to whether the relevant market requires
the application of a contingent fee multiplier. “A primary rationale for the
contingency risk multiplier is to provide access to competent counsel for those
who could not otherwise afford it.” Bell v. U.S.B. Acquisition Co., Inc.,
734 So. 2d 403, 411 (Fla. 1999).
3Whether
the party seeking fees testifies regarding the difficulty in obtaining
competent counsel is a factor to consider when determining whether to apply the
contingency fee multiplier. Cf. Eckhardt v. 424 Hintze Mgmt., LLC,
969 So. 2d 1219, 1223 (Fla. 1st DCA 2007) (explaining that where party seeking
fees did not testify at hearing, “there was no evidence to suggest that the
[party] had difficulty in securing competent counsel”).
the party seeking fees testifies regarding the difficulty in obtaining
competent counsel is a factor to consider when determining whether to apply the
contingency fee multiplier. Cf. Eckhardt v. 424 Hintze Mgmt., LLC,
969 So. 2d 1219, 1223 (Fla. 1st DCA 2007) (explaining that where party seeking
fees did not testify at hearing, “there was no evidence to suggest that the
[party] had difficulty in securing competent counsel”).
4In
analyzing the trial court’s failure to make findings relating to the hourly
rate or number of hours reasonably expended, the court in Rosenbloom
explained that “[w]ere we writing on a clean slate, we might consider this
error harmless, particularly as the award does not involve a multiplier
enhancement.” 698 So. 2d at 940 (emphasis added).
analyzing the trial court’s failure to make findings relating to the hourly
rate or number of hours reasonably expended, the court in Rosenbloom
explained that “[w]ere we writing on a clean slate, we might consider this
error harmless, particularly as the award does not involve a multiplier
enhancement.” 698 So. 2d at 940 (emphasis added).
5We note
that the trial court also failed to specifically make findings on the other two
factors discussed in Quanstrom. However, we do not base our decision on
those omissions as they were not the issues in dispute.
that the trial court also failed to specifically make findings on the other two
factors discussed in Quanstrom. However, we do not base our decision on
those omissions as they were not the issues in dispute.
__________________
(KHOUZAM, J., Dissenting.) I
respectfully disagree with the majority’s analysis and result. The fee judgment
on its face shows no error, and without a transcript Citizens simply cannot
demonstrate that the trial court erred in its findings and conclusions. By
holding otherwise, the majority extends the Florida Supreme Court’s holdings in
Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.
1985), and Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 2d 828
(Fla. 1990), beyond their actual language to impose a new requirement that all
findings supporting an attorneys’ fee award must be reflected in the court’s
written judgment. In doing so, the majority radically shifts well-established
jurisprudence regarding an appellant’s burden on appeal and this court’s scope
of review. I would affirm.
respectfully disagree with the majority’s analysis and result. The fee judgment
on its face shows no error, and without a transcript Citizens simply cannot
demonstrate that the trial court erred in its findings and conclusions. By
holding otherwise, the majority extends the Florida Supreme Court’s holdings in
Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.
1985), and Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 2d 828
(Fla. 1990), beyond their actual language to impose a new requirement that all
findings supporting an attorneys’ fee award must be reflected in the court’s
written judgment. In doing so, the majority radically shifts well-established
jurisprudence regarding an appellant’s burden on appeal and this court’s scope
of review. I would affirm.
It is undisputed that the trial
judge conducted a three-hour fee hearing, during which she listened to the
examination and cross-examination of six witnesses, including both parties’
experts. Documents were received into evidence, and counsel made legal
arguments. The fee hearing was before the same trial judge who presided over
the jury trial, which lasted six days. The trial judge made factual
determinations and resolved the issues concerning the application and amount of
a multiplier based on the evidence she received. She was in the best position
to observe what was presented at trial and at the fee hearing.
judge conducted a three-hour fee hearing, during which she listened to the
examination and cross-examination of six witnesses, including both parties’
experts. Documents were received into evidence, and counsel made legal
arguments. The fee hearing was before the same trial judge who presided over
the jury trial, which lasted six days. The trial judge made factual
determinations and resolved the issues concerning the application and amount of
a multiplier based on the evidence she received. She was in the best position
to observe what was presented at trial and at the fee hearing.
The written order set forth specific
findings as to the hourly rate, the number of hours reasonably expended, and
the appropriateness of the enhancement factors. The order made clear that these
findings were based on the expert testimony presented and that the court had expressed
its reasoning in further detail at the hearing. The order clearly stated that
the court applied a 1.7 contingent fee multiplier based on the factors set
forth in Florida Rule of Professional Conduct 4-1.5(b)(1)(A)-(H), Rowe,
and Quanstrom. The order also indicated that plaintiff’s chances of
success were 50/50 and noted that of the many sinkhole cases tried before the
court, only two cases were won by the policyholder. Finally, the judge stated
that she had tried many sinkhole cases and that “this case was by far the best
tried sinkhole case [she had] ever seen.”
findings as to the hourly rate, the number of hours reasonably expended, and
the appropriateness of the enhancement factors. The order made clear that these
findings were based on the expert testimony presented and that the court had expressed
its reasoning in further detail at the hearing. The order clearly stated that
the court applied a 1.7 contingent fee multiplier based on the factors set
forth in Florida Rule of Professional Conduct 4-1.5(b)(1)(A)-(H), Rowe,
and Quanstrom. The order also indicated that plaintiff’s chances of
success were 50/50 and noted that of the many sinkhole cases tried before the
court, only two cases were won by the policyholder. Finally, the judge stated
that she had tried many sinkhole cases and that “this case was by far the best
tried sinkhole case [she had] ever seen.”
Our review of the fee award in this
case is limited. The award of attorneys’ fees is a matter committed to sound
judicial discretion and will not be disturbed on appeal unless a clear abuse of
discretion is shown. DiStefano Constr. Inc. v. Fid. & Deposit Co. of Md.,
597 So. 2d 248, 250 (Fla. 1992). Our review of an order applying a multiplier
to a fee award is also one of abuse of discretion. USAA Cas. Ins. Co. v.
Prime Care Chiropractic Ctrs., P.A., 93 So. 3d 345, 347 (Fla. 2d DCA 2012).
case is limited. The award of attorneys’ fees is a matter committed to sound
judicial discretion and will not be disturbed on appeal unless a clear abuse of
discretion is shown. DiStefano Constr. Inc. v. Fid. & Deposit Co. of Md.,
597 So. 2d 248, 250 (Fla. 1992). Our review of an order applying a multiplier
to a fee award is also one of abuse of discretion. USAA Cas. Ins. Co. v.
Prime Care Chiropractic Ctrs., P.A., 93 So. 3d 345, 347 (Fla. 2d DCA 2012).
Our review here is hampered because
Citizens has the burden to demonstrate error on appeal yet failed to provide
this court with a transcript of the evidentiary hearing, which would have
included the court’s reasoning as was noted in the order. See Applegate
v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979). By not
providing a transcript or a proper substitute, Citizens has thwarted this
court’s ability to meaningfully review the trial court’s reasoning; for that
reason, the lack of a transcript is generally a fatal flaw in an appellant’s
case. Id. “In the absence of a transcript, the trial court’s factual
findings are presumed correct, and our review is limited to errors apparent on
the face of the judgment.” O’Connor v. O’Connor, 184 So. 3d 1149, 1149
(Fla. 2d DCA 2015) (citing Mobley v. Mobley, 18 So. 3d 724, 725 (Fla. 2d
DCA 2009)).
Citizens has the burden to demonstrate error on appeal yet failed to provide
this court with a transcript of the evidentiary hearing, which would have
included the court’s reasoning as was noted in the order. See Applegate
v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979). By not
providing a transcript or a proper substitute, Citizens has thwarted this
court’s ability to meaningfully review the trial court’s reasoning; for that
reason, the lack of a transcript is generally a fatal flaw in an appellant’s
case. Id. “In the absence of a transcript, the trial court’s factual
findings are presumed correct, and our review is limited to errors apparent on
the face of the judgment.” O’Connor v. O’Connor, 184 So. 3d 1149, 1149
(Fla. 2d DCA 2015) (citing Mobley v. Mobley, 18 So. 3d 724, 725 (Fla. 2d
DCA 2009)).
Even where the court’s written order
lacks findings, “[t]he most salient impediment to meaningful review of the trial
court’s decision is not the absence of findings, but the absence of a
transcript.” Esaw v. Esaw, 965 So. 2d 1261, 1264 (Fla. 2d DCA 2007).
This is because the trial court may have orally pronounced its findings at the
hearing. See Nunes v. Nunes, 112 So. 3d 696, 700-01 (Fla. 4th DCA
2013). This court should “not speculate to the contrary” or “assume that the
trial court committed reversible error during the course of a hearing that we
cannot review.” Id.
lacks findings, “[t]he most salient impediment to meaningful review of the trial
court’s decision is not the absence of findings, but the absence of a
transcript.” Esaw v. Esaw, 965 So. 2d 1261, 1264 (Fla. 2d DCA 2007).
This is because the trial court may have orally pronounced its findings at the
hearing. See Nunes v. Nunes, 112 So. 3d 696, 700-01 (Fla. 4th DCA
2013). This court should “not speculate to the contrary” or “assume that the
trial court committed reversible error during the course of a hearing that we
cannot review.” Id.
Under this extremely narrow
standard, Citizens cannot show any error, much less fundamental error. In
addition to those findings reflected on the face of the order, the court made
oral findings regarding the fee award and, in the order, specifically noted
that she had made such findings and incorporated them by reference. Without the
benefit of a transcript reflecting the oral findings, this court cannot
meaningfully review the trial court’s findings and must defer to the court’s
judgment.
standard, Citizens cannot show any error, much less fundamental error. In
addition to those findings reflected on the face of the order, the court made
oral findings regarding the fee award and, in the order, specifically noted
that she had made such findings and incorporated them by reference. Without the
benefit of a transcript reflecting the oral findings, this court cannot
meaningfully review the trial court’s findings and must defer to the court’s
judgment.
The majority suggests that the
reference to the judge’s oral findings made at the hearing related only to the
question of whether the attorneys’ hourly rates were reasonable. This is pure
speculation unsupported by anything in this record. Without the transcript of
the hearing, the majority simply assumes that the judge’s oral findings or
reasons were so limited in order to reach its result. And even if the trial
court’s order is construed as reflecting findings related only to the
question of whether the attorneys’ hourly rates were reasonable, this issue is
intertwined and overlaps with the question of whether the contingent fee
multiplier was appropriate. See Rowe, 472 So. 2d at 1150-52. We
therefore cannot guess — as the majority essentially does — that the trial
court failed to make any oral findings regarding the contingent fee multiplier.
To suggest otherwise, through parsing of the trial court’s written order, is to
erode the bedrock presumption of correctness that clothes the trial court’s
order. Accordingly, without a transcript, we simply cannot second guess what
oral findings the court made or did not make at the hearing. Nor should we
fault the trial court for being unable to remember the testimony that was
presented at the hearing when the parties are responsible for producing the
transcript. Indeed, that is the very reason why an appellant has the burden to
provide an adequate record to support its arguments.
reference to the judge’s oral findings made at the hearing related only to the
question of whether the attorneys’ hourly rates were reasonable. This is pure
speculation unsupported by anything in this record. Without the transcript of
the hearing, the majority simply assumes that the judge’s oral findings or
reasons were so limited in order to reach its result. And even if the trial
court’s order is construed as reflecting findings related only to the
question of whether the attorneys’ hourly rates were reasonable, this issue is
intertwined and overlaps with the question of whether the contingent fee
multiplier was appropriate. See Rowe, 472 So. 2d at 1150-52. We
therefore cannot guess — as the majority essentially does — that the trial
court failed to make any oral findings regarding the contingent fee multiplier.
To suggest otherwise, through parsing of the trial court’s written order, is to
erode the bedrock presumption of correctness that clothes the trial court’s
order. Accordingly, without a transcript, we simply cannot second guess what
oral findings the court made or did not make at the hearing. Nor should we
fault the trial court for being unable to remember the testimony that was
presented at the hearing when the parties are responsible for producing the
transcript. Indeed, that is the very reason why an appellant has the burden to
provide an adequate record to support its arguments.
The majority’s approach also extends
the holdings in Rowe and Quanstrom to require written
findings to support all aspects of a fee award. Neither these cases nor any of
the other cases that the majority has cited delineate such a requirement.
Rather, these cases stand for the proposition that findings supporting an award
of attorneys’ fees must be express and specific, regardless of
whether they are oral or written. Indeed, this court has specifically held that
such factual findings may be made orally at the hearing or set forth in the
written judgment. Perez v. Perez, 100 So. 3d 769, 771 (Fla. 2d DCA
2012); see also Ortiz v. Ortiz, 227 So. 3d 730, 733 (Fla. 3d DCA
2017) (quoting Perez with approval).
the holdings in Rowe and Quanstrom to require written
findings to support all aspects of a fee award. Neither these cases nor any of
the other cases that the majority has cited delineate such a requirement.
Rather, these cases stand for the proposition that findings supporting an award
of attorneys’ fees must be express and specific, regardless of
whether they are oral or written. Indeed, this court has specifically held that
such factual findings may be made orally at the hearing or set forth in the
written judgment. Perez v. Perez, 100 So. 3d 769, 771 (Fla. 2d DCA
2012); see also Ortiz v. Ortiz, 227 So. 3d 730, 733 (Fla. 3d DCA
2017) (quoting Perez with approval).
Creating this additional requirement
radically shifts well-established jurisprudence that the trial court’s decision
comes to the appellate court with a presumption of correctness, that it is the
appellant’s burden to demonstrate error, and that this court is unable to
meaningfully review the trial court’s reasoning without a transcript or a
proper substitute. See Applegate, 377 So. 2d at 1152. It would
also undermine the foundational principle that the appellate court must defer
to the factfinder on questions of fact; it is axiomatic that it is not the
function of the appellate court to reweigh the evidence or speculate about what
may or may not have happened below. See, e.g., Gunsby v. State,
574 So. 2d 1085, 1090 (Fla. 1991) (“The resolution of factual conflicts is
solely the responsibility and duty of the trial judge, and, as the appellate
court, we have no authority to reweigh that evidence.”).
radically shifts well-established jurisprudence that the trial court’s decision
comes to the appellate court with a presumption of correctness, that it is the
appellant’s burden to demonstrate error, and that this court is unable to
meaningfully review the trial court’s reasoning without a transcript or a
proper substitute. See Applegate, 377 So. 2d at 1152. It would
also undermine the foundational principle that the appellate court must defer
to the factfinder on questions of fact; it is axiomatic that it is not the
function of the appellate court to reweigh the evidence or speculate about what
may or may not have happened below. See, e.g., Gunsby v. State,
574 So. 2d 1085, 1090 (Fla. 1991) (“The resolution of factual conflicts is
solely the responsibility and duty of the trial judge, and, as the appellate
court, we have no authority to reweigh that evidence.”).
I am also troubled that the majority
appears to ignore the recent Florida Supreme Court decision in Joyce v.
Federated National Insurance Co., 228 So. 3d 1122 (Fla. 2017). In Joyce,
the supreme court clarified that under Florida law there is no presumption that
the lodestar amount represents the reasonable fee and the contingency fee
multiplier has never been limited to rare or exceptional circumstances. Id.
at 1131-32. Rather, Florida courts should consider the contingency fee
multiplier any time the requirements for a multiplier are met. Id. at
1132. Indeed, it is important for the contingency fee multiplier to be
considered where appropriate because
appears to ignore the recent Florida Supreme Court decision in Joyce v.
Federated National Insurance Co., 228 So. 3d 1122 (Fla. 2017). In Joyce,
the supreme court clarified that under Florida law there is no presumption that
the lodestar amount represents the reasonable fee and the contingency fee
multiplier has never been limited to rare or exceptional circumstances. Id.
at 1131-32. Rather, Florida courts should consider the contingency fee
multiplier any time the requirements for a multiplier are met. Id. at
1132. Indeed, it is important for the contingency fee multiplier to be
considered where appropriate because
“[I]t assists parties with legitimate causes of action or
defenses in obtaining competent legal representation even if they are unable to
pay an attorney on an hourly basis. In this way, the availability of the
multiplier levels the playing field between parties with unequal abilities to
secure legal representation.”
defenses in obtaining competent legal representation even if they are unable to
pay an attorney on an hourly basis. In this way, the availability of the
multiplier levels the playing field between parties with unequal abilities to
secure legal representation.”
Id. at 1130 (quoting Bell v. U.S.B. Acquisition Co., Inc.,
734 So. 2d 403, 411 (Fla. 1999)).
734 So. 2d 403, 411 (Fla. 1999)).
Despite the supreme court’s recent
decision in Joyce, the majority appears to incorrectly presume that the
lodestar amount represents the reasonable fee in this case and assume that the
contingency fee multiplier is limited to rare or exceptional circumstances that
it contends are not present here. Without the majority’s unfounded
presumptions, it becomes even clearer that the trial court’s decision should be
affirmed because it is entirely appropriate for Florida courts to consider the
contingency fee multiplier any time the requirements for a multiplier
are met.
decision in Joyce, the majority appears to incorrectly presume that the
lodestar amount represents the reasonable fee in this case and assume that the
contingency fee multiplier is limited to rare or exceptional circumstances that
it contends are not present here. Without the majority’s unfounded
presumptions, it becomes even clearer that the trial court’s decision should be
affirmed because it is entirely appropriate for Florida courts to consider the
contingency fee multiplier any time the requirements for a multiplier
are met.
Accordingly, for all of the
aforementioned reasons, I would affirm.
aforementioned reasons, I would affirm.
* * *