[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-13243 August 30, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 02-80127-CV-DTKH
PEPI SCHAFLER, Dr.,
Plaintiff-Appellant,
versus
FAIRWAY PARK CONDOMINIUM ASSOCIATION,
AND EACH INDIVIDUAL MEMBER OF THE BOARD, et al.,
Defendants-Appellees.
__________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(August 30, 2005)
Before BIRCH, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Dr. Pepi Schafler, a pro se litigant in a diversity action, appeals the district
court’s award of attorneys’ fees to Indian Springs Maintenance Association
(“Indian Springs”). After reviewing the record and the contentions of the parties,
we AFFIRM.
I. BACKGROUND
On 12 February 2002, Schafler initiated an action in the United States
District Court for the Southern District of Florida against Indian Springs and
various other defendants. She alleged, inter alia, that Indian Springs improperly
rejected a tenant to whom she had agreed to lease her condominium. The district
court granted the defendants’ motion to dismiss and denied Schafler’s motion for
reconsideration.
On appeal, we affirmed the district court’s order of dismissal. Additionally,
we granted Indian Springs’s motion for appellate attorneys’ fees and remanded the
case to the district court to determine the amount to be awarded. At a subsequent
evidentiary hearing before a magistrate judge, Hugo Alvarez, an attorney of the
firm representing Indian Springs on its defense of Schafler’s appeal, testified
regarding his firm’s representation. He testified that his firm is appointed by CNA
Insurance and that CNA Insurance has paid his firm the fees at issue. Adopting
the report and recommendation of the magistrate judge, the district court awarded
Indian Springs $3,290 in attorneys’ fees. Schafler moved for reconsideration and
argued that Indian Springs had no standing to make a claim for attorneys’ fees
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because those fees had already been paid by its insurance company. The district
court denied Schafler’s motion for reconsideration, and Schafler timely appealed.
On appeal, Schafler argues that the district court erred in awarding Indian
Springs attorneys’ fees because the legal work completed by Alvarez had already
been paid by Indian Springs’s insurance company.1
II. DISCUSSION
An award of attorneys’ fees is reviewed for abuse of discretion. Mut. Serv.
Ins. Co. v. Frit Indus., Inc., 358 F.3d 1312, 1322 (11th Cir. 2004). “‘An abuse of
discretion occurs if the judge fails to apply the proper legal standard or to follow
proper procedures in making the determination or bases an award [or a denial]
upon findings of fact that are clearly erroneous.’” Id. (citation omitted).
Under Florida law, a prevailing party may be entitled to payment of
attorneys’ fees by a losing party if that party or its attorney “knew or should have
known that a claim or defense when initially presented to the court or at any time
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Additionally, Schafler argues that Alvarez committed perjury in an affidavit submitted
to our court by stating (1) that Indian Springs “‘retained’” his law firm, when in fact his firm is
appointed by Indian Springs’s insurance company; and (2) that Indian Springs “‘is responsible’”
for paying his firm’s fees, when in fact its insurance company paid the fees. Appellant’s
Opening Brief at 9. Schafler thus requests that we refer Indian Springs’s counsel for criminal
prosecution. In response, Indian Springs requests that we admonish Schafler. We decline both
requests.
In her reply brief, Schafler also contends that the district court lacked jurisdiction to
determine the amount of the attorneys’ fees award because it previously had dismissed the case
for lack of jurisdiction. This argument has no merit.
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before trial: (a) was not supported by the material facts necessary to establish the
claim or defense; or (b) would not be supported by the application of then existing
law to those material facts.” FLA. STAT. ANN. § 57.105(1). The purpose of this
rule “‘is to discourage baseless claims, stonewall defenses and sham appeals in
civil litigation by placing a price tag through attorney[s]’ fees awards on losing
parties who engage in these activities.’” Schwartz v. Millon Air, Inc., 341 F.3d
1220, 1227 (11th Cir. 2003) (citation omitted). Accordingly, recovery of
attorneys’ fees has been permitted in situations where the client’s attorney has
received payment from a source other than the client, Fairley v. Patterson, 493
F.2d 598, 605-06 (5th Cir. 1974) (court properly awarded attorneys’ fees to a party
whose attorneys had received already compensation for their service from a tax
free foundation), or where the client would be indemnified by insurance for
attorneys’ fees, Church of Scientology of California v. Cazares, 638 F.2d 1272,
1291 (5th Cir. 1981) (citing Perez v. Rodriguez Bou, 575 F.2d 21, 24 (1st Cir.
1978) (finding no merit “in defendant’s argument that attorneys’ fees should not
be awarded because plaintiffs . . . were not charged for the legal services they
received”)).
Both the Florida Supreme Court and the district courts in this Circuit
employ the federal lodestar approach to set reasonable fee awards. See Loranger
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v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994) (per curiam); Fla. Patient’s Comp.
Fund v. Rowe, 472 So.2d 1145, 1150 (Fla. 1985). Under the lodestar formula, a
court must first determine the attorney’s reasonable hourly rate. Loranger, 10 F.3d
at 781. In arriving at this figure, the court may consider the twelve factors
discussed in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19
(5th Cir. 1974), which provided the prior formula for calculating attorneys’ fees.
Loranger, 10 F.3d at 781 n.6. These factors include: (1) the time and labor
required, (2) the novelty and difficulty of the questions, (3) the degree of skill
necessary to serve the client properly, (4) the attorney’s inability to accept other
employment because he accepted the case, (5) the customary fee, (6) whether the
fee is fixed or contingent, (7) time limitations imposed by the client or the
circumstances, (8) the amount of damages involved and the relief or results
obtained, (9) the experience, reputation, and ability of the attorneys, (10) the
“undesirability” of the case, (11) the nature and length of the attorney’s
professional relationship with the client, and (12) awards in similar cases.
Johnson, 488 F.2d at 717-19. Next, the court takes the reasonable hourly rate and
multiplies it by the “reasonable number of compensable hours.” Loranger, 10 F.3d
at 781. This formula does not require a district court to consider insurance
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coverage or the existence of indemnification agreements. Id.; see Johnson, 488
F.2d at 717-19.
In this case, the magistrate judge heard testimony that CNA Insurance had
paid for Indian Springs’s representation on appeal. However, a district court
determining the amount of a reasonable fee under the lodestar formula need not
consider insurance coverage or other indemnification agreements, see Johnson,
488 F.2d at 717-19, and recovery of attorneys’ fees is allowed even though the
client’s attorney has received payment from another source, see Fairley, 493 F.2d
at 605-06; Church of Scientology, 638 F.2d at 1291. Further, the reduction of an
attorneys’ fee award against a plaintiff because of the defendant’s insurance
coverage would undermine the purpose of an award of attorneys’ fees, which is to
discourage baseless appeals. Accordingly, we conclude that the district court did
not abuse its discretion in calculating the appellate attorneys’ fees to be $3,290.
III. CONCLUSION
Because we conclude that the district court did not abuse its discretion in
setting the amount of appellate attorneys’ fees at $3,290, even though Indian
Spring’s counsel had already been paid by an insurance company, we AFFIRM.
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