Third District Court of Appeal
State of Florida
Opinion filed April 17, 2024.
Not final until disposition of timely filed motion for rehearing.
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No. 3D23-0940
Lower Tribunal No. 21-11532
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Universal Property & Casualty Insurance Company,
Appellant,
vs.
Yimi Elis Santos, et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Beatrice
Butchko, Judge.
Russo Appellate Firm, P.A., and Paulo R. Lima and Elizabeth K.
Russo, for appellant.
Feiler, Leach & Chong, and Martin E. Leach, for appellees.
Before EMAS, SCALES and BOKOR, JJ.
PER CURIAM.
Universal Property & Casualty Insurance Company, the insurer and
defendant in the breach of contract action below, appeals the trial court’s
award of attorneys’ fees to the prevailing insureds. The insurer does not
challenge the insureds’ entitlement to fees but alleges that the amount
awarded was unreasonable and unsupported by competent, substantial
evidence.
The insureds received a judgment of $43,500 in their favor and moved
for attorneys’ fees pursuant to section 627.428, Florida Statutes (2022).
They also submitted affidavits from their four attorneys attesting to their
hourly rates and a total of 388.2 hours worked on the case. In opposition,
the insurer submitted an itemized reduction report analyzing the billable time
and requesting a reduction of 182 hours for excessive, cumulative, or
ministerial work.
The trial court held a short evidentiary hearing, during which the parties
proffered competing expert testimony as to the reasonableness of the hourly
rates and billable hours. The insurer’s expert testified that the rates and
hours were grossly excessive and referred the court to the reduction report.
The insureds’ expert did not dispute the reported sum of 388.2 hours, but
recommended that the court reduce the hours of three of the attorneys by 10
hours each as a “general reduction” to account for potential excessive time,
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without any correlation to the reasonableness of specific billing records;
rather, the expert testified that the reduction was based on his personal
experience as a fee expert, noting that “that’s just the way I do it. I made a
reduction, I thought it was a fair reduction.”
After the hearing, the court accepted the insureds’ proposed award in
totality and awarded the lodestar amount of $254,525.00 in fees, accounting
for the 30-hour reduction for a total of 358.2 hours between the four
attorneys. The court did not make specific findings as to the reasonableness
of the rates or the billing records proffered by the insureds. This appeal
followed.
We review orders on attorneys’ fees for abuse of discretion. See Island
Travel & Tours Ltd. Co. v. MYR Indep., Inc., 307 So. 3d 829, 831 (Fla. 3d
DCA 2020). “In determining the amount of attorneys’ fees to be awarded, a
trial court is required to use the lodestar approach and consider the eight
criteria set forth in Florida Patient’s Compensation Fund v. Rowe, 472 So.
2d 1145 (Fla. 1985).” Universal Prop. & Cas. Ins. Co. v. Deshpande, 314
So. 3d 416, 419 (Fla. 3d DCA 2020). Under the lodestar approach, “[t]he
number of hours reasonably expended, determined in the first step,
multiplied by a reasonable hourly rate, determined in the second step,
produces the lodestar, which is an objective basis for the award of attorney
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fees.” Rowe, 472 So. 2d at 1151. “Once the court arrives at the lodestar
figure, it may add or subtract from the fee based upon a ‘contingency risk’
factor and the ‘results obtained.’” Id. Additionally, “[i]n determining the hourly
rate, the number of hours reasonably expended, and the appropriateness of
the reduction or enhancement factors, the trial court must set forth specific
findings.” Id.1
In Deshpande, we reversed an attorney fee award in an analogous
situation in which the trial court simply adopted the plaintiff’s proposed fee
amounts verbatim, including a flat reduction in hours, without making
particularized findings as to the number of hours or the appropriateness of
any reductions:
The court did not make any specific findings as to disputed time
entries which may have been excessive, vague, duplicative or
ministerial. Nor did the court apply any particularized reductions
or make any findings as to the appropriateness of reductions.
Rather, without explanation, the court adopted the Plaintiff’s fee
expert's 10% blanket reduction to the number of hours
expended. We find this reduction arbitrary and unsupported.
Because the $441,805.14 fee award in this case is not supported
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The insureds argue that the insurer failed to preserve the issue on appeal
by failing to ask for a rehearing. We disagree. See, e.g., In re Amends. to
Fla. Rule of Civ. Proc. 1.530, 373 So. 3d 1115, 1115 (Fla. 2023) (“This
change makes clear that the rules apply only when a judge is required to
make specific findings of fact and not when a party seeks to make other
challenges to a trial court's order.”). Here, the insurer challenges the trial
court’s reliance on unsupported, or conclusory, expert testimony, in making
the ultimate findings of fact.
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by competent, substantial evidence, we reverse the lodestar
amount.
314 So. 3d at 420; see also Citizens Prop. Ins. Corp. v. Casanas, 336 So.
3d 746, 748 (Fla. 3d DCA 2021) (same); Certain Underwriters at Lloyd’s
London v. Candelaria, 339 So. 3d 463, 468 (Fla. 3d DCA 2022) (“[T]he
Insureds’ fee expert admitted during his testimony that he did not conduct a
line-item analysis of the time records as required, but instead simply reduced
the hours billed by 7.5 percent with no proffered rationale for this reduction.
Further, the trial court announced at the conclusion of the hearing that it was
reducing the hours billed by an across-the-board cut of fifteen percent. As
Lloyd's points out, we recently rejected this methodology in [Deshpande and
Casanas]. . . . In the instant case—as in Deshpande—the lodestar amount
is not supported by competent substantial evidence because the trial court
did not make ‘specific findings’ as to its determination of the number of hours
and, instead, applied an arbitrary, across-the-board cut of fifteen percent.”).
Like Deshpande, we find the insureds’ expert’s use of a 10-hour-per-
lawyer cut, untethered to the record, to be arbitrary. However, unlike
Deshpande, we do not remand with directions for the trial court to accept the
reductions proffered by the insurer’s expert, as there is evidence and
testimony proffered by both sides. Cf. 314 So. 3d at 420 (citing Winter Park
Imports, Inc. v. JM Fam. Enters., Inc., 77 So. 3d 227, 231 (Fla. 5th DCA
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2011) (“[A]s a general rule, where a party seeking fees and costs has been
afforded an evidentiary hearing, it is not entitled to a second bite at the apple
to prove its claim.”)). Here, as there remain disputed issues of fact, the
appropriate remedy is to remand for further development of the record and
to allow the trial judge to make the appropriate findings regarding the lodestar
amount. As our sister court explained:
Generally, when the record on appeal is devoid of competent
substantial evidence to support the attorney’s fee award, the
appellate court will reverse the award without remand for
additional evidentiary findings. However, when the record
contains some competent substantial evidence supporting the
fee or cost order, yet fails to include some essential evidentiary
support such as testimony from the attorney performing the
services, or testimony from additional expert witnesses, the
appellate court will reverse and remand the order for additional
findings or an additional hearing, if necessary.
Diwakar v. Montecito Palm Beach Condo. Ass’n, Inc., 143 So. 3d 958, 961
(Fla. 4th DCA 2014) (citations and quotations omitted). Thus, “because the
record contains some evidence which, if explained, could support the award,
reversing and remanding for an evidentiary hearing is the more appropriate
disposition.” Black Point Assets, Inc. v. Ventures Tr. 2013-I-H-R by MCM
Cap. Partners, LLC, 236 So. 3d 1134, 1137 (Fla. 2d DCA 2018).
Accordingly, we reverse and remand with instructions for the trial court
to conduct an additional evidentiary hearing, affording the trial court the
opportunity to consider the insurer’s reduction report and make sufficient
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findings as to the reasonable amount of billable hours, rates, and any
reductions.
Reversed and remanded with instructions.
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