El Brazo Fuerte Bakery 2 v. 24 Hour Air Serv.

EL BRAZO FUERTE BAKERY 2, Appellant, v. 24 HOUR AIR SERVICE, INC., Appellee.

No. 4D21-531

Florida Court of Appeals, Fourth District

November 24, 2021

Not final until disposition of timely filed motion for rehearing.

Appeal from the County Court for the Seventeenth Judicial Circuit Broward County; Jackie Powell, Judge; L.T. Case Nos COCE16-10481 and CACE20-6601.

Gregory Light and Anthony Gonzalez of Light & Gonzalez PLLC, Plantation, for appellant.

No appearance for appellee.

GERBER, J.

The plaintiff, after prevailing in the underlying breach of contract action, appeals from the county court's final judgment on the plaintiff's motion to determine the amount of attorney's fees to which it was entitled. The plaintiff argues the county court erred in three respects: (1) by reducing the plaintiff's attorneys' hourly rates, and the plaintiff's expert's requested hourly rate, absent competent substantial evidence, or specific findings, for such reductions; (2) by making internally inconsistent findings supporting the application of a contingency fee multiplier but then not applying a multiplier; and (3) by not awarding prejudgment interest from the date on which the county court found the plaintiff was entitled to attorney's fees.

We agree with each of the plaintiff's arguments. After providing a brief procedural history, we will address each argument in turn.

Procedural History

The plaintiff filed a breach of contract claim against the defendant in county court. After two years of litigation and a non-jury trial, the county court entered a $3, 394.00 final judgment in the plaintiff's favor. The plaintiff filed a motion for entitlement to prevailing party attorney's fees under the contract. The county court entered an order granting the plaintiff's motion for entitlement to attorney's fees.

The plaintiff then filed its motion to determine the amount of attorney's fees to which it was entitled and its expert's fees. The motion identified the plaintiff's expert's opinions:

[Plaintiff's counsels'] reasonable hourly rate is $350.00.

[A] reasonable amount of hours spent on this case was 111.65 ....

Plaintiff's total lodestar amount of attorney's fees is $39, 217.50.

Plaintiff's counsel is entitled to a contingency fee multiplier of 250% to the contingent portion of the Plaintiff's [counsels'] attorney's fees, bringing the total amount of reasonable attorney's fees to $90 043.75.

The county court held a hearing to determine the fees amount. The plaintiff presented two witnesses: one of the plaintiff's two attorneys who had worked on the litigation, and the plaintiff's fees expert.

The plaintiff's attorney testified as follows. The plaintiff retained the two-attorney law firm to pursue its claim. The plaintiff retained the firm on a partial contingency basis, whereby the plaintiff agreed to pay the firm a flat $2, 000 attorney's fee. The plaintiff also agreed that, if: (1) it ultimately prevailed in the litigation, and (2) the county court determined it was entitled to recover its attorney's fees, then the firm would seek to recover the two attorneys' reasonable hourly rate aggregated by a contingency fee multiplier. The two attorneys ultimately spent 121.2 hours on the litigation up until the date when the county court granted the plaintiff's motion for entitlement to attorney's fees. The firm's detailed records documenting the hourly work performed incurred were introduced into evidence.

The plaintiff's attorney testified regarding how the work performed satisfied the factors identified in Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), as modified by Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990). The plaintiff's attorney further testified that the firm would not have taken the case on a partial contingency basis without the possibility of a multiplier. The plaintiff's attorney also testified that both he and his partner had been practicing for about a year and a half and charged a $350 hourly rate.

On cross-examination, defense counsel questioned the plaintiff's attorney about the firm's various billing entries, but did not question their $350 hourly rate.

The plaintiff's expert testified as follows. He was a twenty-five year former judge and charged a $600 hourly rate. He had reviewed the court file and the firm's records and bills, and created a deductions list for duplicative entries, travel time, and work which could have been performed by clerical staff. He opined that 7.5 hours should be deducted from the total hours billed, but the remaining 112.05 hours billed were reasonable. He further opined $350 was a reasonable hourly rate for the plaintiff's attorneys, and the result which the firm obtained was excellent. He also opined the relevant market required a contingency fee multiplier to obtain competent counsel for this type of action, for which he believed a 250% (i.e., 2.5) multiplier was warranted. He also testified he had spent eleven hours preparing for the hearing.

Defense counsel requested the county court's permission to testify as the defendant's expert witness. The county court denied the request because defense counsel had not given notice that the defendant would be presenting evidence at the hearing. However, the county court permitted defense counsel, for appellate purposes, to proffer what his testimony would have been, in the context of his closing argument. During the unsworn proffer/closing, defense counsel stated his belief that the market rate for attorneys with less than two years' experience was $225 per hour, and that the plaintiff's claim did not justify a multiplier based on the results obtained.

The plaintiff's attorney's closing argument cited case law, including State Farm Fire &Casualty Co. v. Palma, 555 So.2d 836 (Fla. 1990), for the proposition that litigation over a claim in the hundreds of dollars still may result in an attorney's fee award in the tens of thousands if the amount of hours expended was reasonable. The plaintiff's attorney also requested prejudgment interest on the attorney's fees award to run from the date when the county court granted the plaintiff's motion for entitlement to attorney's fees. The plaintiff's attorney then provided the county court with a proposed judgment, which contained blanks for the county court to fill in findings for the reasonable hourly rate and hours for both the plaintiff's attorneys and its expert. The proposed judgment also contained proposed findings to justify a multiplier, including a blank for the county court to fill in a multiplier amount. The proposed judgment also contained a blank for the county court to fill in a prejudgment interest amount.

The county court deferred ruling at the hearing. Later, the county court entered its judgment, using the plaintiff's attorney's proposed judgment as a template. The county court found the plaintiff's attorneys were entitled to the 112.05 hours which its expert had opined were reasonable, but at only a $175 hourly rate - that is, one-half of the $350 rate which its expert opined was reasonable. The county court also found the plaintiff's expert was entitled to only 8.8 hours at a $225 hourly rate - that is, less than the eleven hours at a $600 hourly rate to which the expert had testified. Regarding a multiplier, the county court did not strike the proposed findings to justify a multiplier, but filled in a zero for the multiplier amount. The county court also did not award the plaintiff any prejudgment interest on the attorney's fee award.

The plaintiff filed a motion for rehearing, followed by an amended motion. The amended motion asserted that the county court, without explanation, had reduced the plaintiff's attorneys' uncontroverted reasonable hourly rate as requested from $350 to $175, and reduced the plaintiff's expert's uncontroverted hourly rate from $600 to $225. The county court entered an order denying the amended motion for rehearing without explanation.

This appeal followed. As stated above, the plaintiff argues the county court erred in three respects: (1) by reducing the plaintiff's attorney's requested hourly rate, and the plaintiff's expert's requested hourly rate, absent competent substantial evidence, or specific findings, for such reductions; (2) by making internally inconsistent findings supporting the application of a contingency fee multiplier but then not applying a multiplier; and (3) by not awarding prejudgment interest from the date on which the county court found the plaintiff was entitled to attorney's fees.

We agree with each of the plaintiff's arguments. We will address each argument in turn.

1. The county court erred by reducing the plaintiff's attorneys' requested hourly rate, and the plaintiff's expert's requested hourly rate, absent competent substantial evidence, or specific findings, for such reductions.

Our standard of review is for an abuse of discretion. See Webber v. D'Agostino, 251 So.3d 188, 191 (Fla. 4th DCA 2018) ("We review the trial court's determination as to the amount of attorney's fees and costs for abuse of discretion.").

"An award of attorney's fees must be supported by substantial competent evidence and contain express findings regarding the number of hours reasonably expended and a reasonable hourly rate for the type of litigation involved." Trovato v. Trovato, 16 So.3d 290, 291 (Fla. 4th DCA 2009) (citation omitted). "Additionally, the award must be supported by expert evidence, including the testimony of the attorney who performed the services." Rakusin v. Christiansen &Jacknin, P.A., 863 So.2d 442, 444 (Fla. 4th DCA 2003) (citation omitted).

"While trial courts are not bound by expert opinions provided at evidentiary hearings or by attorney [test...