The fees have it

FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 16

APRIL 19, 2024

LITIGANTS MUST COMPLY WITH THE TIME REQUIREMENTS OF RULE 1.525 IN SEEKING FEES

Lyons Heritage of Tampa v. Phillips, 49 Fla. L. Weekly D850 (Fla. 2nd DCA Apr. 17, 2024):

This case arose after an arbitration award when buyers untimely sought attorneys’ fees from a builder.

After arbitration, the buyers sought to have the trial court enter final judgment to confirm the arbitrator’s award. The judgment did not mention attorney’s fees and costs and did not reserve jurisdiction for any purpose.

The buyers ultimately sought relief under Rule 1.540 because there was a finding that the homeowners were entitled to award fees and costs. However, the court properly concluded that the buyers were required to comply with the time requirements of Rule 1.525, which requires only that the motion be served no later than 30 days following the filing of a judgment. Because they did not do that, and were not subject to any limited exception, the homeowners could not recover their fees.

RULE 1.525 IMPOSES NO JURISDICTIONAL TIME LIMIT FOR SCHEDULING A HEARING ON THE AMOUNT OF ATTORNEY’S FEES AFTER THE TIMELY FILING OF A MOTION SEEKING FEES OR COSTS

HCA Health Services of Florida v. Saint Lucie Medical Center, 49 Fla. L. Weekly D863 (Fla. 2nd DCA Apr. 17, 2024):

The trial court denied attorney’s fees to the defendant hospital because it failed to conduct discovery or set an evidentiary hearing in the time frame set by the trial court to do so on the fees. The trial court ruled that the jurisdiction of the court is not “never-ending,” and found that the hospital waiting for over a year to set the hearing on fees resulted in “unreasonable tardiness.” The trial court denied the motion for fees because the defendant waited so long to pursue it.

Rule 1.525 establishes a bright line time requirement  (30 days from the filing of the judgment) for filing motions for costs and attorneys’ fees. However, the rule contains no jurisdictional time limit for scheduling a hearing on the matter of the amount to be awarded after the motion is timely filed.

While the court acknowledged that a trial judge may impose sanctions against a party for not adhering to reasonable case management deadlines, the case law (Kozel v. Ostendorf) establishes the process which a trial court must follow to impose a such a sanction for failure to adhere to a deadline. As that procedure was not followed here, the trial court’s refusal to allow fees was an abuse of its discretion.

TRIAL COURT ERRED BY ADOPTING THE PROPOSED ATTORNEY’S FEES AWARD, WHICH INCLUDED THE EXPERT’S FLAT REDUCTION IN HOURS, WITHOUT MAKING SPECIFIC FINDINGS AS TO THE REASONABLENESS OF THE RATES OR EVALUATING THE BILLING RECORDS PROFFERED BY THE INSURED

Universal Property and Casualty Ins. Co. v. Santos, 49 Fla. L. Weekly D871 (Fla. 3rd DCA Apr. 17, 2024):

After a short evidentiary hearing where the parties proffered competing expert testimony as to the reasonableness of the hourly rates and billable hours, the court accepted the insured’s proposed award and awarded $254,005.25 in fees. This award accounted for a 30-hour reduction for a total of 358.2 hours among the four attorneys.

The court made a reduction based on the insurer’s expert testifying that the rates and hours were grossly excessive, and suggesting the court make a “general reduction.”

The court found that the  expert’s use of a “10-hour per lawyer cut” that was untethered to the record was arbitrary. Instead of merely remanding with directions for the trial court to accept the reductions proffered by the insurer’s expert, in this case, there was evidence and testimony proffered by both sides, therby requiring the trial court to make appropriate findings as to the lodestar amount after an additional evidentiary hearing.

ERROR TO APPLY A MULTIPLIER WITHOUT EVIDENCE THAT THE RELEVANT MARKET REQUIRED IT

Foot & Ankle Center of Florida, LLC v. Vargas, 49 Fla. L. Weekly D887 (Fla. 6th DCA Apr. 19, 2024):

The plaintiff sued the defendant asserting a cause of action under the Florida Consumer Collection Practices Act as well as one for declaratory relief. The plaintiff’s claims were based on his assertion that the defendant placed an illegitimate lien on his worker’s compensation settlement proceeds, after a doctor at the defendant’s office treated the plaintiff for a work-related injury. The plaintiff moved for summary judgment on his claims and prevailed.

The parties then proceeded to an evidentiary hearing to determine the amount of damages as well as reasonable attorney’s fees. The plaintiff for the first time also argued that he was entitled to a contingency fee multiplier.

He then presented evidence as to the reasonableness of the amount of attorney’s fees and costs, including the expert’s. For its part, the defendant disputed various aspects of the fees and costs sought and challenged the plaintiff’s entitlement to a contingency fee multiplier, which it did not believe was proper in a case where the statute allows for fees.

The trial court ruled there was entitlement to a multiplier of 1.5. The order included specific findings in support of the determination, including a finding that the relevant market required the application of a contingency fee multiplier to incentivize effective counsel to undertake representation.

According to the Florida Supreme Court, in order to justify a multiplier, the moving party must present evidence of three factors: (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 non-payment 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.

The purpose of the relevant market factor is to assess not just whether there are attorneys in any given area, but specifically whether they have the skill to handle the case effectively and who would not have taken the case absent the availability of a multiplier.

The imposition of a multiplier in this case failed the analysis right from the start because the plaintiff presented no evidence on the point. There was no evidence from which the trial court could have reasonably inferred in a way that was not arbitrary or unreasonable, that the relevant market required a contingency fee multiplier. The court refused to remand on this point, finding that once a party is afforded an evidentiary hearing, that party is not entitled to a second bite of the apple to prove the claim.

WITHOUT A JUDICIAL DETERMINATION OF BAD FAITH, IT IS ERROR FOR THE TRIAL COURT TO ENTER JUDGMENT AGAINST AN INSURANCE COMPANY FOR THE NET AMOUNT OF THE JURY VERDICT EXCEEDING POLICY LIMITS, EVEN THOUGH IT LIMITED EXECUTION ON THE JUDGMENT TO THE POLICY LIMITS

State Farm Mut. Auto Ins. Co. v. Finson, 49 Fla. L. Weekly D845 (Fla. 2nd DCA Apr. 17, 2024):

State Farm refused to pay the $100,000 UM policy limits in a case. The plaintiff obtained a verdict of almost $1.1 million. After the set-offs, the trial judge entered final judgment in the amount of the net verdict and provided for the accrual of post-judgment interest. The court did limit execution on the judgment to the $100,000 policy limits.

Without a judicial determination that the insurance company acted in bad faith, it is error for a court to enter final judgment against it for the net amount of the jury verdict in excess of the policy limits.

While the final judgment may “include” the verdict amount, the trial court’s provision for the accrual of post-judgment interest was also error. Post-judgment interest serves to reimburse the claimant for not having received the money in hand on the day of judgment. However, it is premature for post-judgment interest to accrue on the net verdict amount, because a plaintiff is not entitled to be paid on that amount (and may never be entitled) unless he brings and prevails in a bad faith claim.