FREEDOM SAVINGS AND LOAN ASSOCIATION, A FLORIDA CORPORATION, APPELLANT,
v.
BILTMORE CONSTRUCTION COMPANY, INC., A FLORIDA CORPORATION, APPELLEE
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The court held that the Florida Supreme Court's guidelines in Florida Patient's Compensation Fund v. Rowe for determining reasonable attorney's fees apply to contractually based fee awards and predate the contract.
[1] The guidelines set forth in Florida Patient’s Compensation Fund v. …
[2] The application of the Rowe guidelines for determining attorney’s fees does not impair rights of parties whose contracts were executed prior to the Rowe decision, but rat…
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Join FLexlaw to unlock all legal intelligenceBiltmore Construction Company obtained a judgment against Freedom Savings and Loan Association, which included a contractual provision for attorney's …
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SCHEB, Acting Chief Judge.
This is an appeal from the trial court’s award of attorney’s fees.
Biltmore Construction Company, Inc. recovered a judgment against Freedom Savings and Loan Association for breach of contract. The contract Biltmore sued upon included a provision that “the prevailing party shall be entitled to the payment of all costs, including a reasonable attorneys’ fee.” In the final judgment in favor of Biltmore, the trial court retained jurisdiction to enter an award for attorney’s fees and costs. No appeal ensued from the final judgment.
Subsequently, Biltmore brought for hearing its request for award of reasonable attorney’s fees and costs. Freedom stipulated as to court costs, but contested the amount of attorney’s fees. At the hearing Dennis P. Thompson, the principal attorney who handled the case for Biltmore, testified as to the time his office expended in handling the case. No time records were produced in court. Thompson acknowledged that there was no specific fee agreement between his firm and Biltmore, but said that he would bill his client for $15,000 even if fees were not awarded. Another experienced attorney testified that $16,000 would be a reasonable fee. Freedom presented no testimony on the issue of a reasonable fee. Nevertheless, its counsel argued that a maximum reasonable fee would be $6,390. This amount was based on what Freedom considered a fair hourly rate multiplied by the hours spent on the case by Thompson’s firm.
The trial court awarded Biltmore’s attorneys the stipulated amount of costs and an attorney’s fee of $15,500, and this appeal by Freedom ensued.
Although the trial judge proceeded in the historic method of determining what constitutes a reasonable fee, such method no longer suffices since “great concern has been focused on a perceived lack of objectivity and uniformity in court-determined reasonable attorney fees.” Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145, 1149 (Fla.1985). In Rowe the Florida Supreme Court set forth specific guidelines for determining the reasonableness of court awarded attorney’s fees and directed the trial courts to set forth their findings in awarding such fees.
Biltmore correctly points out that Rowe involved a statutory fee award in a medical malpractice suit. While recognizing the mandates of Rowe, Biltmore argues that it has no applicability to this case because here Biltmore’s entitlement to fees is based on contract rather than statute. Moreover, Biltmore contends that, in any event, Rowe would not apply here because the contract providing for assessment of fees to the prevailing party was executed in 1984, pri-or to Rowe.
We are aware that the third district has limited the applicability of Rowe to statutorily awarded attorney’s fees. Shlachtman v. Mitrani, 508 So. 2d 494 (Fla. 3d DCA 1987). Nevertheless, we have previously held that Rowe applies whether the awarded attorney’s fees are based on entitlement by statute or by contract. Massey v. Watson, 508 So. 2d 740 (Fla. 2d DCA 1987); Appalachian, Inc. v. Ackmann, 507 So. 2d 150 (Fla. 2d DCA 1987); Ford v. Swope, 492 So. 2d 782 (Fla. 2d DCA 1986). To apply Rowe to contracts entered into prior to that decision does not impair any rights of Biltmore; rather, it merely sets out a procedural method for determination of those rights. See Lowe v. Price, 437 So. 2d 142 (Fla.1983); see also City of Lakeland v. Catinella, 129 So. 2d 133 (Fla.1961). Hence, we reject Biltmore’s contentions.
According to Rowe, in computing an attorney fee, the trial judge should: (1) determine the number of hours reasonably expended on the litigation; (2) determine the reasonable hourly rate for this type of litigation; (3) multiply the result of (1) and (2); and, when appropriate, (4) adjust the fee on the basis of the contingent nature of the litigation or the failure to prevail on a claim or claims. Rowe at 1151. Contrary to Biltmore’s argument, the application of the Rowe criteria does not neglect consideration of Disciplinary Rule 2-106 [now Rule 4-1.5 Rules Regulating The Florida Bar]. Rather, it provides for specific application of such rule. Rowe provides that the court, in establishing the hourly rate, should assume the fee will be paid irrespective of the result and take into account all of the factors in the rule 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.” Rowe at 1150.
Accordingly, we reverse the award of attorney’s fees and direct the trial court to hold a new evidentiary hearing for the purpose of determining a reasonable fee and to set forth its specific findings consistent with the appropriate factors and guidelines in Rowe.
RYDER and SCHOONOVER, JJ., concur.
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Citator
Cited By (11 total)
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Bell v. U.S.B. Acquisition Co., Inc., 734 So. 2d 403 (Fla. 1999)…ying on our decisions in Rowe or Quanstrom. See, e.g., Stack v. Lewis, 641 So. 2d 969, 970 (Fla. 1st DCA 1994); Askowitz v. Susan Feuer Interior Design, Inc., 563 So. 2d 752, 754 (Fla. 3d DCA 1990); Freedom Sav. & Loan Ass’n v. Biltmore Constr. Co., 510 So. 2d 1141, 1142 (Fla. 2d DCA 1987); see also Hollub v. Clancy, 706 So. 2d 16, 19 (Fla. 3d DCA 1997); cf. Florida Pottery Stores of Panama City, Inc. v. American Nat’l Bank, 578 So. 2d 801, 804 (Fla. 1st DCA 1991) (treating contractual and statutory basis for…
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Riesgo v. Ira Weinstein, 523 So. 2d 752 (Fla. 2d DCA 1988)…ng party.” Stabinski, 490 So. 2d at 160. Notwithstanding this position of the Third District, we apply Rowe “whether the awarded attorney’s fees are based on entitlement by statute or by contract.” Freedom Sav. & Loan Ass’n. v. Biltmore Constr. Co., 510 So. 2d 1141, 1142 (Fla. 2d DCA 1987). The issue of how a trial court is to determine the amount of fees to be awarded an attorney discharged without cause before the conclusion of the client’s case was addressed in Barton v. McGovern, 504 So. 2d 457 (Fla. 1st…
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The Glades, Inc. v. The Glades Country Club Apts. Ass'n, Inc., 534 So. 2d 723 (Fla. 2d DCA 1988)…of the lodestar figure and the enhanced figure. THREADGILL and PARKER, JJ., concur. . "Rowe applies whether the awarded attorney’s fees are based on entitlement by statute or by contract.” Freedom Savings & Loan Ass’n v. Biltmore Construction Co., 510 So. 2d 1141, 1142 (Fla. 2d DCA 1987).…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fla. Patient's Comp. Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985)
- City OF Lakeland v. Catinella, 129 So. 2d 133 (Fla. 1961)
- Lowe v. The Honorable Joseph E. Price, 437 So. 2d 142 (Fla. 1983)
- Appalachian, Inc. v. Ackmann, 507 So. 2d 150 (Fla. 2d DCA 1987)
- Shlachtman v. Mitrani, 508 So. 2d 494 (Fla. 3d DCA 1987)
- Ford v. Swope, 492 So. 2d 782 (Fla. 2d DCA 1986)
- Sallie E. Massey v. Watson, 508 So. 2d 740 (Fla. 2d DCA 1987)