MARCHION TERRAZZO, INC., D/B/A SUPER SURFACE SALES, APPELLANT,
v.
ROBERT S. ALTMAN, APPELLEE
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Marchion Terrazzo appeals from a trial court's award of $500 in attorney's fees under Florida's Deceptive and Unfair Trade Practices Act, contending the amount is inadequately low. The appellate court reverses, holding that the trial judge abused discretion by awarding fees grossly disproportionate to the 25+ hours worked and the complexity of the legal issues involved.
The trial judge abused discretion by awarding attorney's fees that were so inadequate relative to the hours expended and complexity of the legal work that they did not comply with the Code of Professional Responsibility. The order is reversed and remanded for recalculation of reasonable attorney's fees consistent with proper methodology.
[1] An award of attorney's fees is an abuse of discretion when it is so inadequate as to be unsupported by the record.
[2] The determination of reasonable attorney's fees requires more than a review of affidavits, particularly when the affidavits present widely divergent valuations of service…
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Establishes that appellate courts will review attorney's fee awards for both excessiveness and inadequacy when clear abuse of discretion is shown.
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Join FLexlaw to unlock all legal intelligenceMarchion Terrazzo sued Robert Altman to recover a balance due on a construction contract. Altman affirmatively pled a violation of the Florida Decepti…
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PEARSON, Judge.
These appeals — an interlocutory appeal and an appeal from a final judgment— present the same question in the same case. The question involved is whether an allowance of a $500.00 attorney’s fee, pursuant to Section 501.210(3), Florida Statutes (1977),1 is so inadequate, based upon the record, as to constitute an abuse of discretion. We hold that the trial judge did abuse his discretion and that the order must be reversed under the principles stated in the Code of Professional Responsibility, DR 2-106(B). See also Folmar v. Davis, 108 So. 2d 772 (Fla. 3d DCA 1959).
The trial judge recognized the appropriateness of an allowance of an attorney’s fee for the defendant in this cause where a violation of the Florida Deceptive and Unfair Trade Practices Act was affirmatively pled as a defense to an action to recover the balance due on a construction contract. At the hearing on the defendant’s motion for costs and attorney’s fee, the judge had before him an uncontroverted affidavit showing at least 25 hours spent on this aspect of the litigation. The parties also presented, at the court’s suggestion, affidavits on the value of the services rendered. The plaintiff’s affidavit on the value of these services was based solely on the witness’s examination of the file of the plaintiff’s attorney. The affidavits of the parties on the value of the services varied so greatly in amount (plaintiff $250; defendant $3,500) that one of them must be wrong. While the setting of an attorney’s fee upon affidavits presented is allowed where neither party objects, it is not the proper method for determining this issue of fact. See Thoni v. Thoni, 179 So. 2d 420 (Fla. 3d DCA 1965). Expert witnesses should present testimony showing the basis for the amount suggested to the court.
Although we are usually not inclined to tread upon the trial court’s discretion in matters involving attorney’s fees, nevertheless, we must do so where we find a clear abuse evidenced jn the record before us, see Bryan and Sons Corp. v. Klefstat, 265 So. 2d 382, 385 (Fla. 4th DCA 1972), and this principle applies not only where the fee is found to be excessive, but also where it is found to be inadequate. See, e. g., Flagala Corporation v. Hamm, 302 So,2d 195 (Fla. 1st DCA 1974), and Canal Authority v. Ocala Manufacturing Ice and Packing Company, 253 So. 2d 495 (Fla. 1st DCA 1971).
It is clear in this case that the fee allowed is not in keeping with time expended and with the novelty and importance of the legal work involved. In addition, the proofs submitted do not support the amount awarded.
The order appealed is reversed and the cause remanded for proceedings in accordance with the views herein expressed.
Reversed and remanded.
. This section is a part of the Florida Deceptive and Unfair Trade Practices Act. It provides in part:
“501.210 Attorney’s fees.—
“(1) In any civil litigation resulting from a consumer transaction involving a violation of this part, except as provided in subsection (5), the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, shall receive his reasonable attorney’s fees and costs from the nonprevailing party.
“(2) The attorney for the prevailing party shall submit a sworn affidavit of his time spent on the case and his costs incurred for all the motions, hearings, and appeals to the trial judge who presided over the civil case.
“(3) The trial judge shall award the prevailing party the sum of reasonable costs incurred in the action plus a reasonable legal fee for the hours actually spent on the case as sworn to in an affidavit.”
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Citator
Cited By (16 total)
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LaFERNEY v. Scott Smith Oldsmobile, Inc., 410 So. 2d 534 (Fla. 5th DCA 1982)…discretion in failing to award a reasonable attorney fee pursuant to section 501.2105, Florida Statutes (1979), for the service rendered by counsel to J. L. LaFerney in its suit against Scott Smith Oldsmobile, Inc. Marchion Terrazzo, Inc. v. Altman, 372 So. 2d 512 (Fla.3d DCA 1979). The appellee did not challenge the reasonableness of the [*535] number of hours spent on the case by appellant’s attorney before the trial court. Ap-pellee offered no expert witness or testimony of his own to show appellant’s hour…
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Heindel v. Southside Chrysler-Plymouth, Inc., 476 So. 2d 266 (Fla. 1st DCA 1985)…se, in Nolan v. Altman, 449 So. 2d 898, we stressed the necessity for both the entry of judgment and the exhaustion of appeals before attorney’s fees could be awarded under chapter 501. Id. at 900, note 2. See also Marchion Terrazzo, Inc. v. Altman, 372 So. 2d 512 (Fla. 3d DCA 1979); Johnny Crews Ford, Inc. v. Llewellyn, 353 So. 2d 606 (Fla. 2d DCA 1978). In the present case Southside was ruled not liable under chapter 501, but no judgment was entered thereon because Southside did not allege and establish an…
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Fashion Tile & Marble, Inc. v. Alpha ONE Constr. & Assocs., Inc., 532 So. 2d 1306 (Fla. 2d DCA 1988)…urt in this case had discretion to consider the amount recovered with the amount claimed, Lindy Bros., it was an abuse of this discretion to limit the attorney’s fee award to a percentage of that amount. See, e.g., Marchion Terrazzo, Inc. v. Altman, 372 So. 2d 512 (Fla. 3d DCA 1979). We, accordingly, reverse the trial court’s supplemental judgment awarding attorney’s fees and remand for further proceedings. If, upon remand, the trial court reduces the lodestar, the reduction should be supported by proper rea…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Folmar v. Davis, 108 So. 2d 772 (Fla. 3d DCA 1959)
- Bryan & Sons Corp. v. Sivert Klefstad, 265 So. 2d 382 (Fla. 4th DCA 1972)
- The Canal Auth. of the State of Fla. v. Ocala Mfg. ICE & Packing Co., 253 So. 2d 495 (Fla. 1st DCA 1971)
- Flagala Corp. v. Hamm, 302 So. 2d 195 (Fla. 1st DCA 1974)
- Famous Brands Distribs., Inc. v. Hoke, 179 So. 2d 420 (Fla. 2d DCA 1965)
- Thoni v. Marine Parrish Thoni, 179 So. 2d 420 (Fla. 3d DCA 1965)