Attorney Fees in Civil Cases Under Florida Law
In civil litigation, the general rule is that attorney fees are not recoverable unless a statute or contract provides otherwise. If the prevailing party is entitled to an award of attorneys’ fees, the award must be reasonable. Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828, 830 (Fla. 1990). In Florida Patient’s Comp. Fund v. Rowe, 472 So. 2d 1145, 1150 (Fla. 1985), the Florida Supreme Court “articulate[ed] specific guidelines to aid trial judges in the setting of attorney fees.” The Court found that the approach used by Federal Courts provided “a suitable foundation for an objective structure.” Id.
Under the two-step approach described below, Florida courts utilize the following criteria to determine if attorney fees are reasonable:
(1) The time and labor required, the novelty and difficulty of the question involved, and the skill requisite to perform the legal service properly. (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. (3) The fee customarily charged in the locality for similar legal services. (4) The amount involved and the results obtained. (5) The time limitations imposed by the client or by the circumstances. (6) The nature and length of the professional relationship with the client. (7) The experience, reputation, and ability of the lawyer or lawyers performing the services. (8) Whether the fee is fixed or contingent.
Rowe, 472 So. 2d at 1150.
“The first step in the [Federal] lodestar process requires the court to determine the number of hours reasonably expended on the litigation.” Rowe, 472 So. 2d at 1150. “Florida courts have emphasized the importance of keeping accurate and current records of work done and time spent on a case, particularly when someone other than the client may pay the fee.” Id. (citations omitted). “To accurately assess the labor involved, the attorney fee applicant should present records detailing the amount of work performed.” Id.
“Counsel is expected, of course, to claim only those hours that he could properly bill to his client.” Rowe, 472 So. 2d at 1150. “Inadequate documentation may result in a reduction in the number of hours claimed, as will a claim for hours that the court finds to be excessive or unnecessary.” Id. “The ‘novelty and difficulty of the question involved’ should normally be reflected by the number of hours reasonably expended on the litigation.” Id.
“The second half of the equation, which encompasses many aspects of the representation, requires the court to determine a reasonable hourly rate for the services of the prevailing party’s attorney.” Rowe, 472 So. 2d at 1150–51. “In establishing this hourly rate, the court should assume the fee will be paid irrespective of the result, and take into account all of the [above] factors except the ‘time and labor required,’ the ‘novelty and difficulty of the question involved,’ the ‘results obtained,’ and ‘[w]hether the fee is fixed or contingent.’” Id. “The party who seeks the fees carries the burden of establishing the prevailing ‘market rate,’ i.e., the rate charged in that community by lawyers of reasonably comparable skill, experience and reputation, for similar services.” Id.
“The 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 fees.” Rowe, 472 So. 2d at 1151. In cases where counsel is employed on a contingent fee basis, after arriving at the lodestar figure, the trial court “may add or subtract from the fee based upon a ‘contingency risk’ factor and the ‘results obtained.’” Id. “But this rule applies only when the fee arrangement is contingent, i.e., the attorney has assumed the risk of nonpayment.” Compass Const., Inc. v. First Baptist Church of Cape Coral, Fla., Inc., 61 So. 3d 1273, 1276 (Fla. 2d DCA 2011).
Finally, “[a]fter considering these factors, the trial court must make specific findings concerning the reasonable hourly rate, the number of hours reasonably expended, and the appropriateness of any reduction or enhancement factors.” Baratta v. Valley Oak Homeowners’ Ass’n at the Vineyards, Inc., 928 So. 2d 495, 497–98 (Fla. 2d DCA 2006) (citations omitted). “The failure to make these required findings constitutes reversible error.” Id. (citation omitted).
Evidence on all of the Rowe Factors is Necessary to Establish Attorney Fees
“An award of attorney’s fees requires competent and substantial evidence.” Brewer v. Solovsky, 945 So. 2d 610, 611 (Fla. 4th DCA 2006) (citation omitted). For example, in Baratta, the Second District noted that “[a] review of that transcript shows that there was no evidence of any type presented to allow the trial court to consider at least three of the Rowe factors: the likelihood of this case precluding other representation by the attorneys, the nature and length of the relationship between Valley Oak and the attorneys, and the experience and reputation of the attorneys.” Baratta, 928 So. 2d at 497–98.
However, “[b]ecause no evidence was even presented concerning these factors, it would have been impossible for the trial court to have considered them in reaching its determination of a reasonable fee, despite being required to do so by Rowe.” Baratta, 928 So. 2d at 497–98. The Court reversed the award of attorney fees in that case because it could not be said that the trial court’s findings “on the reasonableness of the hours expended and the reasonableness of the hourly rate are supported by competent, substantial evidence.” Id. at 498.
“In determining the number of hours that have been ‘reasonably expended,’ the court must consider the time that would ordinarily have been spent by lawyers in the community to resolve this particular type of dispute, which is not necessarily the number of hours actually expended by counsel in the case at issue.” Baratta, 928 So. 2d at 499 (citations omitted). “Thus, as a general rule, duplicative time charged by multiple attorneys working on the case is usually not compensable.” Id. (emphasis added) (citation omitted).
Limitation for Attorney Fee Awards in the Case of Fixed Fee Arrangements
“Where there is a conventional hourly fee agreement, the amount awarded by the court against the opposing party may not exceed the amount the client would be obliged to pay his or her own attorney.” Daniels v. Bryson, 548 So. 2d 679, 682 (Fla. 3d DCA 1989). In Compass, the Second District also held that where attorneys are compensated on a flat hourly basis regardless of outcome, a fee award could not exceed their agreed hourly rate in the fee agreement. Compass Const., Inc., 61 So. 3d at 1276. In that case, the agreed hourly rate in the fee agreement was $90 per hour. Id.
Therefore, the Court held that the fee awarded could not be calculated at a rate exceeding $90 per hour. Compass Const., Inc., 61 So. 3d at 1276. In other words, “the fee for First Baptist’s attorney had to be calculated at the agreed hourly rate in the agreement between the attorney and the insurance company.” Id. The Court concluded that “[t]he trial court’s award of attorney’s fees to First Baptist at a rate higher than the agreed hourly rate in the applicable fee agreement is inconsistent with Rowe and its progeny.” Id. at 1278.
An Award of Attorney Fees Cannot Stand Where no Expert Testimony is Presented Concerning the Reasonableness of the Fees
“[I]t is well settled that absent a stipulation, an attorney’s fee awarded, over objection, solely on the basis of an affidavit or testimony of the attorney seeking the fee, is improper.” Morgan v. S. Atl. Prod. Credit Ass’n, 528 So. 2d 491, 492 (Fla. 1st DCA 1988) (citations omitted). “A fee award must be supported by evidence detailing the nature and extent of the services performed and by expert testimony regarding the reasonableness of the fee.” Morton v. Heathcock, 913 So. 2d 662, 669 (Fla. 3d DCA 2005) (citations omitted). “Although the attorney performing the services for which a fee award is sought need not testify, competent, substantial evidence regarding the nature and extent of the services rendered must be adduced.” Id.
It is a “well-settled point that a fee award must be supported with expert testimony.” Frank J. Pepper, Inc. v. Vining, 783 So. 2d 1160, 1163–64 (Fla. 3d DCA 2001) (citations omitted). “[W]here a party seeks to have the opposing party in a lawsuit pay for attorney’s fees incurred in that same action, the general rule in Florida is that independent expert testimony is required.” Sea World of Fla., Inc. v. Ace Am. Ins. Cos., Inc., 28 So. 3d 158, 160–61 (Fla. 5th DCA 2010) (citations omitted). An attorney moving for an award of attorney fees can testify as to the amount of time he expended, but he must present some expert testimony as to what would be a reasonable hourly fee. Snow v. Harlan Bakeries, Inc., 932 So. 2d 411, 412 (Fla. 2d DCA 2006).
“The testimony of an expert witness concerning reasonable attorney’s fees is necessary to support the establishment of the fees.” Yakubik v. Bd. of Cnty. Comm’rs of Lee Cnty., 656 So. 2d 591, 591–92 (Fla. 2d DCA 1995) (citations omitted). In Yakubik, “[t]he only evidence offered to support the award of the attorney’s fee was the attorney who performed the services.” Id. On appeal, the Second District held that “[t]he trial court erred in establishing the amount of attorney’s fees in this case based solely on the testimony of the attorney seeking the fees and without testimony from an expert witness on the reasonable amount of the fees.” Id. at 592.
The Invoices Relied Upon for Attorney Fees Cannot be Imprecise and Vague
“The law is clearly established that 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.’” Quality Holdings of Fla., Inc. v. Selective Invs., IV, LLC, 25 So. 3d 34, 37 (Fla. 4th DCA 2009) (quotation omitted). Substantial competent evidence includes invoices, records and other information detailing the services provided, as well as the testimony of the attorney in support of the fee. Id.
“If the moving party cannot meet his burden for any reason, including inadequate, confusing or imprecise timesheets or record keeping, he or she should not be awarded attorney’s fees for those vague or incomprehensible charges.” Van Diepen v. Brown, 55 So. 3d 612, 614 (Fla. 5th DCA 2011) (citation omitted). “That is to say, the party against whom fees are sought should not be punished because of the lack of adequate record keeping by the party seeking fees.” Id. (citation omitted).
In Quality, the only evidence the trial court appears to have received regarding attorney’s fees is the affidavit of the moving party’s client. Quality Holdings, 25 So. 3d at 37. In the affidavit, the client itemized damages that he “incurred to defend and resolve various disputes relating to the litigation.” Id. The affidavit merely contained a single line item, which parroted the motion, for “‘Legal fees’ in the amount of $23,928.00.” Id.
The Court held that “[t]his bare description does not constitute substantial and competent evidence to justify the trial court awarding attorney’s fees.” Quality Holdings, 25 So. 3d at 37. Further, the Court noted that the trial court received no invoices or records detailing the services provided, and it appeared that the attorney did not testify in support of his fee. Id. Moreover, the trial court did not make findings regarding the number of hours reasonably expended or the reasonable hourly rate for the type of litigation involved. Id. The award of fees was reversed. Id.