FLORIDA PATIENTS COMPENSATION FUND AND MOISES BORTEN, M.D., APPELLANTS,
v.
ROLANDA JOHNSON, A MINOR, BY AND THROUGH HER PARENTS AND NEXT FRIENDS, BENNY JOHNSON AND BARBARA JOHNSON, APPELLEES

Fla. 4th DCA | 1988-12-14
No. 87-0538
HERSEY, C.J., and ANSTEAD, J., concur.
538 So. 2d 875 Florida District Court of Appeal, Fourth District (1988) Positive Treatment
Cited by 4 cases

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.

Synopsis

The Florida District Court of Appeal reversed a trial court's award of $378,300 in attorneys' fees to the plaintiffs in a medical malpractice case, finding that while the methodology was sound, the allocation of hours between the two defense counsel was not adequately supported by the record and required remand for recalculation with additional evidence including the contingent fee contract.


Holding

The court's methodology for calculating attorneys' fees was sound, but the allocation of hours between Schlesinger and Cohen was not adequately supported by the record. The case is reversed and remanded for the trial court to make specific findings regarding time allocation based on direct evidence and to reconsider the fee award in light of the contingent fee contract and relevant case law.


Headnotes

[1] A trial court must have a sufficient evidentiary basis to allocate the number of hours attributable to different lawyers in a fee award, especially when they have differe…

[2] The existence and terms of a contingent fee contract between a claimant and their attorney must be considered when determining the amount of attorneys' fees recoverable.

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Key Quotes

“The burden of proof is upon the claimant and he must furnish the trial court with a basis to allocate the number of hours attributable to the different lawyers in view of their different rates per hour.”

Establishes the standard that plaintiffs seeking attorneys' fees must provide specific evidence to support allocation of time between counsel at different rates.

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Facts & Procedural History

The Johnsons pursued a medical malpractice action against the North Broward Hospital District, Dr. Moises Borten, and the Florida Patients Compensatio…

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Opinion of the Court
DOWNEY, Judge.

DOWNEY, Judge.

This is a timely appeal from a final judgment awarding $378,300 in attorneys’ fees and $11,831.59 in costs against the North Broward Hospital District, d/b/a Broward General Medical Center, Moises Borten, M.D. (the doctor), and Florida Patients Compensation Fund (the Fund) in a medical malpractice action. The case is a companion case to North Broward Hospital District, d/b/a Broward General Medical Center v. Johnson, et al., Case No. 4-86-2419, and Borten v. Johnson, et al., Case No. 4-86-2486, & Florida Patients Compensation Fund v. Johnson, et al., Case No. 4-86-2497, the opinion for which is published simultaneously with this opinion, 538 So. 2d 871 (Fla.App.1988).

The Johnsons claimed their attorneys’ fees incurred in the medical malpractice cases.

At the hearing held thereon appel-lees submitted a document estimating that their attorneys had spent 574 hours on the case. Their expert witness testified that Sheldon Schlesinger’s time should be valued at $250 per hour and Gary Cohen’s at $150 per hour.

The trial court found that the time alleged was reasonable and awarded $250 per hour for 400 hours spent by Mr. Schlesinger and $150 per hour for 174 hours spent by Mr. Cohen. The court then applied a multiplier of three based upon evidence that this was a “uniquely difficult” case in which the defendants had never made an offer to settle, and upon an expert’s opinion that the odds in favor of success were two out of ten and it was difficult to understand how the Johnsons had been successful m recovering a verdict. The expert testified the multiplier should be in the range of two and one-half to three.

The Fund and the doctor contend the amount awarded is excessive and the court did not follow Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.1985).

We fail to find any fault with the methodology used by the court, except the allocation of the respective amounts of time spent by Schlesinger and Cohen. The transcript of the hearing on the Johnsons’ attorneys’ fees fails to support the trial judge’s division of the total number of hours between Schlesinger and Cohen. In fact, it would seem to support the greater number of hours being ascribed to Mr. Cohen. This is too serious a matter to be treated cavalierly. The burden of proof is upon the claimant and he must furnish the trial court with a basis to allocate the number of hours attributable to the different lawyers in view of their different rates per hour. In all fairness to the Johnsons’ counsel here, this case began in 1983 and Rowe, which announced the methodology to be used in assessing attorney’s fees in this situation, was not decided until mid-1985.

Furthermore, the record indicates that the Johnsons’ counsel had a contingent fee contract with them and, although the Fund and the doctor had requested advice regarding the nature of it, it was not forthcoming even at the fee hearing. On remand, that contract should be considered by the court for its impact on the amount of the fee to be awarded along with more direct evidence as to the allocation of time between counsel.

Accordingly, we reverse the judgment allowing attorneys’ fees to the Johnsons and remand the cause to the trial court for further proceedings regarding the allocation of time between their respective counsel. Thereafter, the trial court shall determine the amount of attorneys’ fees recoverable in the light of the additional evidence, including the effect, if any, that the contingent fee contract has thereon according to Miami Children’s Hospital v. Tamayo, 529 So. 2d 667 (Fla.1988), and Florida Patient s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.1985).

HERSEY, C.J., and ANSTEAD, J., concur.


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Cited By

  • …ber of hours reasonably expended by an attorney. Here, the trial court simply awarded a lump sum. South Pointe did not waive this issue by not submitting evidence contradicting First National’s affidavits. See Florida Patients Comp. Fund v. Johnson, 538 So. 2d 875, 876 (Fla. 4th DCA 1988) (“The burden of proof is upon the claimant and he must furnish the trial court with a basis to allocate the number of hours attributable to the different lawyers in view of their different rates per hour.”). [*329] Additiona…
  • N. Broward Hosp. Dist. v. Rolanda Johnson, 538 So. 2d 876 (Fla. 4th DCA 1988)
    …ohnson, et al., Case No. 4-86-2419, and Borten v. Johnson, et al., Case No. 4-86-2486, and Florida Patients Compensation Fund v. Johnson, et al., Case No. 4-86-2497, 538 So. 2d 871, and Florida Patients Compensation Fund & Borten v. Johnson, et al., 538 So. 2d 875, Case No. 87-0538, the opinions for which are published simultaneously with this opinion. As we held in Florida Patients Compensation Fund & Borten v. Johnson, 538 So. 2d 875, the judgment for attorneys’ fees must be reversed and remanded for furt…
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