GEORGE D. DUNN AND DIANE M. DUNN, APPELLANTS/CROSS-APPELLEES,
v.
SENTRY INSURANCE, ETC., APPELLEE/CROSS-APPELLANT
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court should not have reversed the attorney fee award based on the absence of an express finding of excessiveness.
[1] A contractual provision for attorney's fees is an agreement for indemnification, allowing recovery of no more than the amount actually paid or obligated.
[2] When determining attorney's fees under a contractual indemnification provision, the trial court must first assess whether the agreed-upon fee is excessive or unreasonable…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceThe trial court awarded a lesser attorney fee than requested by Sentry. The majority reversed this award due to the absence of an express finding of e…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Reasonableness Of Attorney'S Fees cases and more on FLexlaw
ORFINGER, Judge.
Appellants/cross-appellees George and Diane Dunn appeal a final judgment awarding $12,500.00 in damages plus $15,000.00 in attorney’s fees to appellee/cross-appel-lant Sentry Insurance Company arising out of an employment contract dispute.1 Appellants demonstrate no error, so with respect to the issues raised by appellants, the final judgment is affirmed.
By cross-appeal, Sentry suggests that the trial court’s award of attorney’s fees and costs was erroneous because it was inadequate. The trial court awarded Sentry $15,000.00 in fees, although Sentry actually expended $32,563.70 for the services of its counsel. Sentry’s costs in these proceedings totalled $5,535.00, but the court awarded $2,830.00. No explanation of how these costs were calculated appears in the record. Sentry’s claim to an award of attorney’s fees is based on the contractual provision between the parties which provides, in essence, that if Sentry is successful in any action to enforce the provisions of the contract, the Sales Representative (Dunn) agrees to pay to Sentry “reasonable attorneys’ fees to be fixed by the court
A contractual provision that the losing party will pay the prevailing party’s attorney’s fees is an agreement for indemnification, i.e., to indemnify the prevailing party for fees reasonably contracted or incurred. Borg-Warner Acceptance Corp. v. Philco Finance Corp., 356 So. 2d 830 (Fla. 1st DCA 1978). Because the agreement is one for indemnification, the prevailing party under this agreement can recover no more than the amount he has actually paid or obligated himself to pay his attorney. Mallard v. Ewing, 121 Fla. 654, 164 So. 674 (1935); Blount Bros. Realty Co. v. Eilenberger, 98 Fla. 775, 124 So. 41 (1929). But this is not tantamount to saying that the party entitled to recover must be awarded the amount which he has paid or agreed to pay his attorney, if that amount is excessive or unreasonable. In Trustees of Cameron-Brown Investment Group v. Tavormina, 385 So. 2d 728 (Fla. 3d DCA 1980) the court observed:
The first question a trial court must answer when faced with a demand for attorneys’ fees is not what a reasonable fee might be in the absence of any fee contract between the claiming party and his attorney, but whether the actual fee agreement against which the claimant seeks indemnity is unreasonable: Specifically, whether the agreement is excessive, under the terms of the Fla.Bar Code Prof.Resp., D.R. 2-106(B). If the fee is not excessive, and it is enforcible by both parties thereto, that fee should be awarded. If the fee is excessive, then the court should proceed to the determination of a “reasonable” fee, i.e., a quantum meruit fee, based on the same factors it considered when it evaluated the fee contract. [Emphasis supplied].
Id. at 731.
The hourly fee of $55.00 charged by cross-appellant’s counsel would appear on its face to be reasonable, and there was expert witness testimony suggesting that a reasonable fee for prosecuting Sentry’s claim against the Dunns, and defending the Dunns’ counterclaim against Sentry, would be approximately $34,000.00. However, the trial court is not bound to arbitrarily and mechanically award the fee which the prevailing party has agreed to pay its counsel, where it is claimed that such fee is excessive. The trial court should first determine if the agreed upon fee is excessive or unreasonable, and if it is not, and the client has paid it or is obligated to pay it, that fee should be awarded. If the fee is deemed excessive or unreasonable, the court should proceed to determine what is a reasonable fee. See Trustees of Cameron-Brown, supra. Thus the trial court may find the agreed upon fee to be excessive for a variety of reasons, and if such finding is made, a lesser (and reasonable) fee shall be awarded.
No finding of excessiveness was made here, although the record suggests that such could have been the basis for an award of a lesser amount. For example, in response to the argument that too much time was devoted to this case by Sentry’s attorneys for the results achieved, Sentry says that winning the case was important to it, because many similar contracts with other sales representatives would be governed by the result here. While Sentry has the unquestioned right to consider the ripple effect of this case in contracting with its counsel, the trial court could conclude that the results obtained in this case did not justify the imposition of the higher fees on the Dunns. See The Fla.Bar Code Prof. Resp., D.R. 2-106(B). See also, Erickson Enterprises, Inc. v. Louis Wohl & Sons, Inc., 422 So. 2d 1085 (Fla. 3d DCA 1982).
Here, the fee agreement between Sentry and its counsel is not on its face unreasonable and the trial judge awarded a lesser amount without finding that the fees paid by Sentry were excessive. Therefore, we set aside the fee award and remand this cause to the trial court for entry of findings as to whether the amounts requested by Sentry were reasonable or excessive, and for entry of an award of fees in accordance with such finding and this opinion. We find no abuse in the trial court’s discretion in its award of costs. We grant Sentry’s motion for appellate attorney’s fees and direct the trial judge to award Sentry a reasonable fee for the services of its counsel on appeal.
AFFIRMED in part and REVERSED in part and REMANDED.
DAUKSCH, J., concurs.
COBB, C.J., concurs in part, dissents in part with opinion.
. This court previously reversed an order of the trial court denying Sentry’s motion for preliminary injunction in this case. See Sentry Insurance v. Dunn, 411 So. 2d 336 (Fla. 5th DCA), pet. for rev. denied, 419 So. 2d 1196 (Fla.1982).
COBB, Chief Judge,
concurring in part; dissenting in part.
I concur with the majority opinion except for its reversal of the attorney fee awarded by the trial court. The reversal is based on the absence of an express finding of excessiveness by the trial court in regard to Sentry’s requested fee. There is no requirement that trial judges must support their decisions with such express factual findings. Vandergriff v. Vandergriff, 456 So. 2d 464 (Fla.1984). The fact that the trial judge rejected the requested fee and awarded a lesser one clearly is an implicit finding that the former was excessive.
The trial judge, as the fact finder, may have disbelieved the work hours claimed in support of the requested fee. He may have considered a number of the hours unnecessary in this case, therefore unreasonable. He may have considered the disparity between the amount of the recovery and the requested fee (two-and-a-half times greater) a proper factor for his consideration. See Folmar v. Davis, 108 So. 2d 772 (Fla. 3d DCA 1959).
The amount awarded as an attorney fee is largely in the discretion of the trial judge, and should not be disturbed on appeal unless clearly unreasonable. Esch v. Forster, 123 Fla. 905, 168 So. 229 (1936). I would simply affirm.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Hadi B. Lashkajani v. Lashkajani, 911 So. 2d 1154 (Fla. 2005)…’s fees because “a contract to pay attorney’s fees is one, not to enrich the holder of the note, but to protect and indemnify him against expenditures necessarily made or incurred to protect his interests”); see also Dunn v. [*1159] Sentry Ins. Co., 462 So. 2d 107 (Fla. 5th DCA 1985) (“A contractual provision that the losing party will pay the prevailing party’s attorney’s fees is an agreement for indemnification.... ”). Prevailing party clauses in prenuptial agreements can be distinguished from provisions r…
-
Franco Pezzimenti and Molly Musca v. L.R. Cirou and Doris L. Cirou, 466 So. 2d 274 (Fla. 2d DCA 1985)…to his attorney’s fees may recover the amount he must pay his lawyer, or a reasonable fee, whichever is lower.” Trustees of Cameron-Brown Investment Group v. Tavorima, 385 So. 2d 728, 731 (Fla. 3d DCA 1980). See also Dunn v. Sentry Insurance, etc., 462 So. 2d 107 (Fla. 5th DCA 1985). Thus, apellees’ recovery was limited to the fee of $5,000 provided for in the fee contract because that amount was lower than what the court determined to be a reasonable fee. Appellees have filed a motion for attorney’s fees f…
-
Charton v. State, 716 So. 2d 803 (Fla. 4th DCA 1998)…“citizen encounter,” we conclude that it was actually an investigative stop. The encounter in this ease became a non-consensual investigative stop when Officer McVey physically prevented appellant from riding away on his bicycle. See T.J. v. State, 462 So. 2d 107, 108 (Fla. 3d DCA 1984). We find, however, that this “stop” was lawfully predicated upon a founded suspicion that appellant was involved in some form of criminal activity. See State v. Russell, 659 So. 2d 465, 467 (Fla. 3d DCA 1995); In re M.C., 641…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Esch v. Davis Forster, 123 Fla. 905 (Fla. 1936)
- Vandergriff v. Wallyce V. Vandergriff, 456 So. 2d 464 (Fla. 1984)
- Mallard v. Ewing, 121 Fla. 654 (Fla. 1935)
- Blount Bros. Realty Co. v. Eilenberger, 98 Fla. 775 (Fla. 1929)
- Trs. OF Cameron-Brown Inv. Grp. v. Tavormina, 385 So. 2d 728 (Fla. 3d DCA 1980)
- Folmar v. Davis, 108 So. 2d 772 (Fla. 3d DCA 1959)
- Sentry Ins. v. Dunn, 411 So. 2d 336 (Fla. 5th DCA 1982)
- Erickson Enters., Inc. v. Louis Wohl & Sons, Inc., 422 So. 2d 1085 (Fla. 3d DCA 1982)
- Borg-Warner Acceptance Corp. v. Philco Fin. Corp., 356 So. 2d 830 (Fla. 1st DCA 1978)