MARIA ISABEL PEREZ-BORROTO, PETITIONER,
v.
CESAR BREA, M.D., RESPONDENT
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The Florida Supreme Court held that trial courts are limited by non-contingent fee agreements between attorneys and clients when awarding attorney's fees to prevailing defendants in medical malpractice cases under section 768.56, applying the same Rowe principles used for contingent fees to ensure equal treatment of both parties.
Yes. The trial court is limited by the non-contingent fee agreement. The Rowe principles, which establish that court-awarded fees should not exceed the fee agreement reached by attorney and client, apply equally to both plaintiff and defendant in medical malpractice actions, regardless of whether the fee agreement is contingent or non-contingent.
[1] When determining attorney's fees under section 768.56, Florida Statutes (1983), trial courts applying the principles set forth in Florida Patient's Compensation Fund v. …
[2] The principles established in Florida Patient's Compensation Fund v. …
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Join FLexlaw to unlock all legal intelligence“in no case should the court-awarded fee exceed the fee agreement reached by the attorney and his client”
Establishes the core Rowe principle limiting court-awarded fees to those agreed upon between attorney and client
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Join FLexlaw to unlock all legal intelligenceDr. Brea prevailed in a medical malpractice action and was entitled to attorney's fees under section 768.56. Defense counsel had a non-contingent fee …
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OVERTON, Judge.
We have for review Brea v. Perez-Borroto, 529 So. 2d 824 (Fla. 3d DCA 1988), in which the district court certified the following question as one of great public importance:
Is the trial court limited by the non-contingent fee agreement between attorney and client when the trial court applies the principles set forth in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.1985), to determine an attorney’s fee award pursuant to section 768.56, Florida Statutes (1983) (repealed ch. 85-175)?
Id. at 824. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer the certified question in the affirmative and quash the district court’s decision.
In this case, Dr. Brea prevailed in a medical malpractice action, entitling him to an award of attorney’s fees pursuant to section 768.56, Florida Statutes (1983). Citing our decision in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.1985), the trial court awarded a fee of $43,000, which was the amount defense counsel had billed Dr. Brea’s insurance carrier under their fee agreement providing for payment of $60 per hour and $700 per trial day. Defense counsel contended he was entitled to a fee computed at $125 to $250 per hour, which is the amount expert testimony established as a reasonable fee for a single representation. On appeal, the district court agreed with that position and reversed the trial court, finding that our decision in Rowe “limits fees in contingent fee cases but does not impose the same limitations in non-contingent fee matters,” 529 So. 2d at 824 (citing Maserati Automobiles, Inc. v. Caplan, 522 So. 2d 993 (Fla. 3d DCA 1988), and Alston v. Sundeck Products, Inc., 498 So. 2d 493 (Fla. 4th DCA 1986)).
We recently addressed the other side of this question in Miami Children’s Hospital v. Tamayo, 529 So. 2d 667 (Fla.1988). In that case, we limited plaintiff’s counsel to a forty percent contingent fee agreement where plaintiff recovered a $5,000 judgment in a medical malpractice action, applying the Rowe principle, that “in no case should the court-awarded fee exceed the fee agreement reached by the attorney and his client.” 472 So. 2d at 1151. In this case, defense counsel argues that the Rowe principle should not apply to him because there was no contingent fee agreement and our contract limitation statement in Rowe applies only to contingent fee contracts. It is our view that the principles of Rowe must apply equally to both plaintiff and defendant in this type of action. To rule that one side is limited to a prior fee agreement while the other is not would be unfair. The playing field must remain balanced and the principles of Rowe applied equally to both sides. We emphasize again that “all the factors contained in Rowe apply whenever the lodestar approach applies.” 529 So. 2d at 668 (emphasis added).*
For the reasons expressed above, we answer the certified question in the affirmative, quash the decision of the district court of appeal, disapprove Maserati, Alston, and Ronlee, Inc. v. Arvida Corp., 515 So. 2d 372 (Fla. 4th DCA 1987), and remand this cause to the district court with directions to reinstate the final judgment of the trial court.
It is so ordered.
EHRLICH, C.J., and McDONALD, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur. *
This holding is not intended to control the special problems in domestic cases. See Winterbotham v. Winterbotham, 500 So. 2d 723 (Fla. 2d DCA 1987); Levy v. Levy, 483 So. 2d 455 (Fla. 3d DCA 1986).
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Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990)…y an appropriate contingency risk multiplier in the range from 1.5 to 3.” Id. The factors and caps ensured that the fee would not be significantly different in amount than it would be absent the statutory provision. See, e.g., Perez-Borroto v. Brea, 544 So. 2d 1022 (Fla.1989); Miami Children’s Hosp. v. Tamayo, 529 So. 2d 667 (Fla.1988). There clearly was no intent on the part of the legislature to increase the amount of attorney’s fees in this type of action for the prevailing party’s counsel. Subsequent to o…
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Orlando Reg'l Med. Ctr., Inc. v. Boleslaus J. Chmielewski, 573 So. 2d 876 (Fla. 5th DCA 1990)…diford, 537 So. 2d 1381 (Fla.1989); Miami Children’s Hospital v. Tamayo, 529 So. 2d 667 (Fla.1988); North Shore Medical Center, Inc. v. Kennedy, 554 So. 2d 8 (Fla. 3d DCA 1989), rev. denied, 563 So. 2d 632 (Fla.1990). See also Perez-Borroto v. Brea, 544 So. 2d 1022 (Fla.1989) (noncontingency contract). Cases involving recovery of a reasonable attorney fee for a prevailing party which fall under a different category as set forth in Rowe, may not be so limited, but they are distinguishable. See, e.g., D & A Exca…
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Nelson v. THE Marine Grp. OF Palm Beach, Inc., 677 So. 2d 998 (Fla. 4th DCA 1996)…lient benefitted as a result of the joint representation. However, a fee award cannot exceed the actual fee agreement or the amount for which the client is in fact responsible. See Lane v. Head, 566 So. 2d 508, 512 (Fla.1990); Perez-Borroto v. Brea, 544 So. 2d 1022 (Fla.1989). This is so even if the expert witness testifies that a greater number of hours is reasonable. See Williams v. Brochu, 578 So. 2d 491, 494 (Fla. 5th DCA 1991). Broker and seller acknowledge these principles but argue that in the absence…
Previewing 3 of 20 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)
- Miami Child's. Hosp. v. Ulises Tamayo, 529 So. 2d 667 (Fla. 1988)
- Levy v. Levy, 483 So. 2d 455 (Fla. 3d DCA 1986)
- Alston v. Sundeck Prods., Inc., 498 So. 2d 493 (Fla. 4th DCA 1986)
- Winterbotham v. Winterbotham, 500 So. 2d 723 (Fla. 2d DCA 1987)
- Maserati Automobiles Inc. & Alfieri Maserati v. Caplan, 522 So. 2d 993 (Fla. 3d DCA 1988)
- Ronlee, Inc. v. Arvida Corp., 515 So. 2d 372 (Fla. 4th DCA 1987)
- Cesar Brea, M.D. v. Perez-Borroto, 529 So. 2d 824 (Fla. 3d DCA 1988)